War Crimes and Genocide- The Trial of Pakistani War Criminals – Dr. B.N. Mehrish
WAR CRIMES AND GENOCIDE
THE TRIAL OF PAKISTANI WAR CRIMINALS
ORIENTAL PUBLISHERS
1488. PATAUDI HOUSE. DARYAGANJ.
V’-‘ DELHI-6 (INDIA)
® Dr. B. N. Mehrish
FIRST EDITION. 1972
Price R«- 35.00
PRINTED IN INDIA
PUBLISHED BY INDERJEET SHARMA. ORIENTAL PUBLISHERS,
1488. PATAUDI HOUSE. DARYAGANJ. DELHL6 AND PRINTED AT
BHARATI PRINTING PRESS. DELHI.6.
To
the Victims of War Crimes
and
Genocide
WAR CRIMES AND GENOCIDE
THE TRIAL OF PAKISTANI WAR CRIMINALS
H. N. Mf.iimsh
19 7 2
ORIENTAL PUBLISHERS
1488, Pataldi House. Daryaganj,
DELHI-6
PREFACE
The subject of war-crimes trials is highly controversial
and complex. Several war-crimes trials occurred in antiquity
and the Middle Ages. In the second half of the eighteenth
century several trials took place in which individuals were
accused of committing international offences. After the
First World War various private attempts were made to sec
up an international court to administer international law in
trials for offences against the laws and customs of nations.
The most important war-crimes trials in world history were
Held at Nuremberg and Tokyo after the Second World War.
Besides, the trial of Adolf Eicbmann, one of the greatest Nazi
war criminals, deserves special mention.
The trials of war criminals have raised doctrinal contro¬
versy regarding the legal basis of trials, jurisdiction of the
Tribunals and the composition of the tribunals to tty war
criminals. The judgments of these tribunals have been
criticised on many grounds.
The happenings in Bangla Desh and the atrocities com¬
mitted by the Pakistani Army there provoked a revival of
interest in the study of war crimes and genocide. The ques¬
tion arises : Can the war-crimes trials of the past constitute
precedent fcr the prosecution and punishment for war crimes
and genocide in Bangla Desh ?
An attempt is. made in this study to answer the
above’ and some other controversial questions concerning
the intended trial of Pakistani war criminals in Bangla Desh.
The main purpose of this study is to present an account of
the events leading to war crimes and genocide in Bangla
Desh in its historical and legal perspective.
The study is divided into four chapters. In the first
chapter the concepts of war crimes and genocide in inter-
WAR TRIAL IN BANGLA DESH
national law are explained. In the subsequent chapter a
survey of the proceedings of the trials of the major war
crimes is made and the judgments of the Tribunals are
appraised. In the third chapter some problems and questions
concerning the intended trial of Pakistani war criminals are
analysed and examined. The last chapter is devoted to some
concluding observations.
The subject of war crimes is vast, controversial and com¬
plex enough that this treatment of it may have shortcomings.
Nevertheless, it is hoped that it will be useful to those
interested in the study of international criminal law, which is
still in the primitive stage of its development.
New Delhi B. N. MEHR1SH
July, 1972
ACKNOWLEDGEMENTS
The author wishes to thank all those who in any way
contributed to the progress of this work.
First and foremost, the author is grateful to Professor
Harnam Singh. Head of the Department of Political Science,
Delhi University, for associating the author in cooperative
teaching in the Department, which enabled him to sustain
his interest in the study of International Law and further
research in the subject.
The author is grateful to the Information Depart¬
ment of Bangla Desh Mission, New Delhi, for the supply of
material on war crimes and genocide in Bangla Desh.
The author wishes to acknowledge his indebtedness to
the various learned works on war crimes and genocide. He
is especially indebted to the works of Professors Robert
K. Woetzel and Morris Greenspan. International Concilia¬
tion published by Carnegie Endowment For International
Peace. Whiteman Digest of International Law. and Inter¬
national Law Reports.
The author is thankful to his friends and colleagues for
their kind help and encouragement given by them during the
preparation of this work.
The author is glad to have this opportunity of expressing
his appreciation of the cooperation shown by his wife and
children at the time of writing this work.
The material for this work was gathered at the Sapru
House Library. The author is extremely thankful to the
Staff of the library for the assistance and courtesy, particu¬
larly to Mr. Hari Om for the help in obtaining the necessary
source material,
WAR rRIAL IN BANGLA DESH
3. SOME PROBLEMS AND QUESTIONS CONCERNING
THE TRIAL OF PAKISTANI WAR CRIMINALS 105
The Problem of Admission of Evi¬
dence 111
The Problem of Definition of Crimes 122
Composition of the Tribunal 137
The Right of Bangla Desh to Punish
Criminals 131
The Plea of Act of State 142
The Problem of Superior Orders 145
The Defence of Necessity 151
The Problem of the Guilty State of
Mind 156
The Question of Procedure for Trial 158
4. CONCLUDING OBSERVATIONS 170
APPENDICES 175
BIBLIOGRAPHY 333
INDEX 343
“No government any longer possesses an undisputed
right to treat its subjects as it pleases. The very least
of these could incriminate the very highest in a trial
before an international court of justice. The officials
of every nation must now be aware that they too may
be condemned as international criminals, if they offend
against the law of nations, if they instigate or prepare
war of aggression, if they apply laws that are in
violation of the laws of humanity, or if they persecute
groups or persons whose rights are recognised by
most civilised nations. That is the meaning of
Nuremberg.”
-Robert K. Woetzel’
Liberation War eArchive Trust
(AW 5’H’3»
INTRODUCTION
This age of violence has been witness to some of the
most gtuesome crimes against humanity—bombing of cities
of Hiroshima and Nagasaki; death in the gas chamber by the
millions; the horrors of the concentration camps and the war
in Vietnam. But the devastation and misery wrought on the
people of Bangla Desh by the Pakistani army is the moat
horrifying. Invaded and devastated by the vengeful
Pakistani army, the tortured land of Bangla Desh cried out
for relief and for justice. The people of Bangla Desh were
robbed of everything they owned and the women raped.
The military junta of Pakistan committed atrocities in
Bangla Desh that have no parallel in the world history.
The history of the West Pakistani massacres in Bangla
Desh can be divided into three distinct phases. The first
began in Dacca towards the end of March 1971. Numerous
eye-witness accounts on the spot have revealed that the
West Pakistani troops went on a week-long rampage of
murder and terror, mainly in Dacca. Their principal target
was the local intelligentsia. At least 50 scholars and intellect¬
uals of Bangla Desh including professsors of Dacca Uni¬
versity were shot dead by West Pakistani army. Dr. G.C.
Deb. Dr. MucafTar Ahmed Choudhury, Dr. A. Rashid and
Dr. A. Sharif—all heads of department of the University—
were among those shot dead. All the resident girl students
of the Dacca University were missing.
According to an eyewitness account the whole cf Dacca
town and its suburbs were the scene of the Kakistari army’s
wanton and almost unchallenged atrccities. The atmy gave
no warning before indulging in arson and butchery. They
fired at each and every citicen they mer, shot or trampled
> Intdren to death. Those who peered through the windows
WAR TRIAL IN BANGLA DESH
were sprayed by bullets. In fact the entire Dacca town
looked like a graveyard with thousands of vultures and dogs
relishing the dead bodies to their great delight.
The second phase of the slaughter campaign started soon
after the happenings in Dacca. Islamabad decided that the
best way to end the threat ro its dominance over Bangla
Desh was to destroy or drive out entire sections uf the
population that were sympathetic ro the Awami League.
This campaign was directed particularly aganist the Bengali
population. Giving evidence of the atrocities committed by
the army of Pakistan, United Stares Senator Adlai Stevenson
observed at a news conference that the atrocities were “a
calculated policy to extinguish Bengali culture.” This was
truly genocide. It was a case of killing or causing “serious
hodilv or mental harm” ro members of a group “with inr.nt
to destroy, in whole or in part, a national, ethnical racial or
religious group.”
The third phase began around the time cf the surrender
of the West Pakistani troops to the combined forces of the
Indian army and Mukti Gahint in Dacca. There are several
well-authenticated reports to suggest that just before they
surrendered. West Pakistani soldiers and the para-military
forces under tl.eir command—the so-called A1 Badt and
other Razakar groups—souglir cut Bengali intellectuals and
brutally mutilated and murdered them in a last despeiute
act rf frustrated vengeance. Son.e 200 such bodies were
discovered in places as widely separated as Khulna. Dacca.
Sylhet and Brahmanbaria in Bangla Desh.
1’here can be no doubt that some of the acts perpetrated
bv the West Pakistani troops against the civilian Bengali
population of Bangla Desh fall under the rubric of “crimes
againsc humanity”. Such crimes formed part of the inter-
ratioral irquiry by ti e Kuremburg Military Tribunal set up
by rle victorious 4 powers – the USA. USSR, Bntain and
France—to punish :he officers of the Axis armed forces at
the erd of the Second World War in 1945. The Nazi officers
INTRODUCTION
found guilty by the tribunal were convicted and sentenced
for, among other things, the genocide of Jews perpetrated by
Hitler before and during that war. Since then, the UN’s
Genocide Convention is an additional reason for taking
action against the West Pakistani officers, particularly for
the crimes against helpless civilians committed by
those who were under the military discipline that an armed
force of any civilised country is expected to observe.
The trial of war criminals will be held on the soil of
Bangla Desh in July 1972. In the trial Pakistan’s collabora¬
tors and Raxakars and some of the prisoneis of war guilty
of war crimes who are at present in the custody of the
Government of India will be tried. The former Pakistan’s
President Gen. Yahya Khan and Gen. Tikka Khan will
also he tried in absentia. Pakistan’s new Chief of Army Staff,
Gen. Tikka Khan, tops the list of war criminals responsible
for the genocide in Bangla Desh.
The main plea for a trial of war criminals in Bangla Desh
springs from ihe precedent of the Nuremberg Trials and the
subsequent Genocide Convention of the United Nations
General Assemblv. The proposed trial of war criminals in
Bangla Desh has posed many ticklish problems. For instance,
Pakistan is not a signatory ro the Genocide Convention and
the cases of genocide can Iv tried in the courts of the councry
in which ic were committed. Furthermore, West Pakistani’s
army surrendered to the Joint Command of the Bangla Desh
and the Indisn forces. The questions that arise are: Is Bangla
Desh government legally competent to try war criminals 7 Can
ihe Nuremberg and :he Eichmann trials be the rrece ent for
the trials of war criminals in Banila Desh 7 What procedure,
and legal principles may be followed in the trial of war crimi¬
nals in Bangla Desh ? An attempt is, therefore, made in the
following pages to examine these questions and problems that
have sprung up m connection with ihe trial of war criminals
in Bangla Desh.
War Crimes and Genocide in
International Law
The question of the existence of “international criminal
law” has been brought mote sharply into foens in recent
years as the result of the war crimes programme following
World War II. the signing of the Genocide Convention, and
the steps taken in the General Assembly of the United
Nations.
What acts should be classified as crimes under inter¬
national law in the last analysis is intimately connected with
the question of the machinery by which such acts should be
dealt with. Hence there is diversity of views on an analytical
classification of crimes and on the machinery for their
The concept of offenses against the law of nations (delicti
juris gentium) was recognised by the classical text writers on
international law and has been employed in national consti¬
tutions and statutes. It was regarded as sufficiently tangible
in th ’ eighteenth century. The United State Federal Courts
sustained indictments charging acts as an offence against the
law cf nations, even it there were no statutes defining the
offence. Eaily in the nineteenth century in was held that
the criminal jurisdiction of federal courts rested only on
statutes though the definition of crimes denounced by statutes
WAR CRIMES AND GI NOCIDE IN INTERNATIONAL LAW 5
might be left largely to international law. Thus ‘piracy’ is
an indictable offence in American federal courts. 1
In the nineteenth century the development of the positi¬
vist doctrine that only states are subjects of international law
and that individuals are bound only by the municipal law of
states with jurisdiction over them led ro a decline in the
.application of the concept of offenses against the law of
{nations. This idea, however, has acquired renewed vigor in
the twentieth century and has been discussed by numerous
text-writers and in many international conferences. There is.
however, still disagreement as to the scope of the concept.
An analysis of general principles of international law and of
criminal law suggests the following definition. “A crime
against international law is an act committed with intent to
violate a fundamental interest protected by international
law or with knowledge that the act. will probably violate
such an interest, and which may not be adequately punished
by the exercise of the normal criminal jurisdiction of any
state.”* Offences against the law of nations, however,
committed by individuals acting as instrumentalities of states
or with the incitement or abetment cf states should come
within the international criminal jurisdiction.
Nature of International Criminal Law
In general, the problem which are raised by the question
of the competence of an international court, especially in
relation to individuals, make it clear that there is now a new
juridical discipline, not to be confused with international
criminal law in the classical sense of that term. It does not
have to deal, ds did classical international criminal law, with
the rules of the legal system of, each state which regulate
the relations of that system to the criminal law of other
1. See U S. Criminal Code. 1909. Sec 290.
2. Quincr Writht, “The Law ol the Nuremberg Trial.” 41, A.J.l.L
(19*7) 33. 55 56.
War trial in bangla
states. The new international criminal law has for its object
the repression ot acts violating the fundamental interests of
the moral and mateiial order for which the establishment
of peaceful relations between members of the international
community cells. Its primary concern is with the acts of
states. Although individuals are also its active subjects,
these last are in the majority of cases ‘representatives of
interests which surpass them they act from collective impulses
nnd represent states.’ 5
The term ‘international criminal law’ has at least sis
different meanings. It may be “identified with the territorial
scope of municipal criminal law. It may be equated with
internationally authorised municipal criminal low. It may
mean municipal criminal law common to civilised nations.
It may signify international cooperation in the administra¬
tion of municipal criminal law, and finallv, stand for inter¬
national criminal law in the material sense of the term.” 4
It is further stated that there is no preconceived reason
why international law should, or should not recognize
the existence of international crimes. But an eminent
authority on international law is of the opinion that “inter¬
national law has not yet evolved a criminal law of its own.
and under the veto provisions of the United Nations Charter
“an international criminal law that is meant to be applied
to the world powers is a contradiction in terms. It pre¬
supposes an international authority which is superior to these
The trials of war criminals have raised much controversy
among international lawyers and two conceptions or circums¬
tances have stood in the way of universal acceptance of the
Nuremberg principles among jurists. The first is that
there is no international legislature which can by statutory
3. Pella, “Towatds an International Criminal Court.” 44 A.J.I.L.
(1950) 37. 55-56.
4. SibwaizrnbeiScr. /niernolianol Law, Vol. I Old cd. 1957). p 253.
Scba
. Cu
•The Problem oi an
robltmi (1950). PP.
W AK CRIMES AND GENOCIDE IN INTERNATIONAL LAW 7
process, define international crimes, prescribe penalties, and
establish judicial machinery for the enforcement of inter-
iiiitional law. From this circumstance stem the objections
derived by Continental lawyers under the maxim nullum
. nmen nulla voena sine lege, and raised by American lawyers
by analogy from the expost facto clause of the Constitution.
The second is the fact that the judges on the Nuremberg
Tribunals were composed of the citizens of the victorious
powers, whereas the defendants were citizens of the van¬
quished nations and as such there was stated to be an “adverse
interest’* between the judges and the accused.
These two conceptions, however, important as they are.
have not carried enough weight in legal and governmental
circles to prevent the carrying out of the trials. Despite of
the absence of an international legislature, ic cannot be urged
that the defendants at Nuremberg did not know that the
acts charged against them were wrongful, or that there was
any element of surprise or other unfairness in bringing them
to book. As for the problem of the “victors and the van¬
quished.” experience with the Leipzig trials after the First
World War offered a compelling rejoinder to those few
who urged that war criminals should be remitted to trial and
punishment by their own governments. Moreover, the pro¬
posal that the tribunals should have been composed of
representatives of the neutral nations was disregarded as
unfeasible because the number of truly neutral countries was
In retrospect it may be said that the highest possible
degree of “fairness” was achieved by virtue of the very
circumstance that the judges were acutely aware of their
positions as citizens of Western civilization. The Nuremberg
trials were but one manifestation of the world-wide striving
after what has been called “world order under the rule of
law,” as manifested in the Charter of the United Nations.
As a matter of fact the traditional concepts of international
law are undergoing chaoge. War crimes and crime of
WAR TRIAL IN BANGLA DESH
genocide certainly fall under the category of crimes under
international lav, for which the responsible individuals shall
be punishable.
War Crimes
According to Oppenheim, war crimes “are such hostile
or other acts of soldiers or other individuals as may be
punished by the enemy on capture of the offenders. They
include acts contrary to International Law perpetrated in
violation of the law of the criminal’s own State, such as
killings or plunder for satisfying private lust and gain, as
well as criminal acts contrary to the laws of war committed
by order and on behalf of the enemy State.”* To that extent
“the notion of war crimes.” observes Oppenheim, “is based
on the view that States and their organs are subject to
criminal resposibility under International Law.” 1
Oppenheim has distinguished four different kinds of war
crimes on account of the essentially different character of
the acts : namely. “(1) violations of recognised rules regarding
warfare committed by members of the armed forces. (2) all
hostilities in arms committed by individuals who are not
members of the enemy armed forces, (3) espionage and war
treason. (4) all marauding acts.” The following are examples
of the more important violations of rules of warfare :
“(I) Making use of poisoned, or otherwise forbidden, arms
and ammunition, including asphyxiating, poisonous,
and similar gases ;
“(2) Killing or wounding soldiers disabled by sickness or
wounds, or who have laid down arms and surrendered:
“(3) Assassination, and hiring of assassins ;
“(4) Treacherous request for quarter, or treacherous
feigning of sickness and wounds ;
6. L Oppenheim. International Law, Vol.2 (ed. by H. Lautcrpachri
7th cd.. London. 1952). pp 566.567.
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 9
“(5) Ill-treatment of prisoners of war, or of the wounded
and sick. Appropriation of such of their money and
valuables as are not public property.
“(6) Killing or attacking harmless private enemy indivi¬
duals. Unjustified appropriation and destruction of
their private property, and especially pillaging. Com¬
pelling the population of occupied territory to furnish
information about the army of the other belligerent,
or about his means of defence :
“(7) Disgraceful treatment of dead bodies on battlefields.
Appropriation of such money and other valuables
found upon dead bodies as are not public property or
arms, ammunition, and the like ;
“(8) Appropriation and destruction of property belonging
to museums, hospitals, churches, schools and the
like;
■'(9) Assault, seige, and bombardment of undefended open
towns and other habitations, unjustified bombardment
of undefended places by naval forces. Aerial bom¬
bardment for the sole purpose of terrorising or
attacking the civilian population :
“(10) Unnecessary bombardment of historical monuments,
and of such hospitals and buildings devoted to
religion, an. science, and charity ns are indicated
by particular signs notified to the seigers bombard¬
ing a defended town ;
“(11) Violations of the Geneva Conventions ;
“(12) Attack on. or sinking of enemy vessels which have
hauled down their flags as a sign of surrender.
Attack on enemy merchantmen without previous
request to submit to visit;
“(13) Attack or seizure of hospital ships, and all other
violations of the Hague Convention for the Adapta¬
tion to Maritime Warfare of the Principles of the
Geneva Convention;
ll’ WAR TRIAL IN BAnGLA DESH
“(14) Unjustified destruction of enemy prizes:
“<13) Use of enemy uniforms and the like during battle and use of the enemy flag during attack by a belligerent vessel “(16) Attack on enemy individuals furnished with pass¬ ports or safe-conducts and violations of safeguards; “(17) Attack on bearers of flags of truce; “(18) Abuse of the protection granted to flags of truce: “(19) Violation of cartels, capitulations, and armistices; “(20) Breach of parole.” 6 The Second World War witnessed war crimes, on a scale unprecedented in history, on the part of Nazi Germany and. to a lesser extent, of some of her allies. The reasons for these “prodigious” breaches of the law were manifold. They lay. in the first instance, in the refusal of Nazi Germany to recognise Soviet Russia as entitled to the benefits of inter¬ national law—an attitude which manifested itself in parti¬ cular in the treatment of Russian prisoners of war in utter disregard of the accepted laws and customs of war. They were due. secondly, to the situation brought about by the German occupation of vast territories. Thirdly, the German Government under Hitler used the occupied territories and their populations for the purpose of ruthless economic exploitation, in particular by way of forcible deportation of millions of the inhabitants for forced labour in Germany. Finally, they owed their origin to the fanatical determination, executed with a cruel and systematic precision, to annihilate large sections of the population in occupied territory on account of their racial origin—a policy which resulted in the murder of six million Jews. These outrages, which shocked the conscience of civilised nations, brought about in the course of the war repeated expressions of solemn condemnation and of determination to bring to justice the participants in these crimes. 8. Ibia .. pp. 567-56?, n.2. WAR CRIMES and genocide in international law II SL James’s Declaration 1942 The firs inter-Allied Declaration on war crimes was signed at St. James’s Palace, London, on January 13. 1942. by representatives of Belgium, Czechoslovakia, France, Greece. Luxembourg, the Netherlands. Norway. Poland and Yugoslavia. In the declaration, the signatory governments, inter alia, noted the acts of violence of Nazi Germany and her allies and associates, and recalled “that international law. and in particular the Convention signed at the Hague in 1907 regarding the laws and customs of land warfare, do not permit belligerents in occupied countries to commit acts of violence against civilians, to disregard the laws in force, or to overthrow national institutions.” The signatories also placed “among their principal war aims the punishment. , through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrared them or participated in them.”’ Moscow Declaration 1943 A “Declaration of German Atrocities.” signed by President Roosevelt, Prime Minister Churchill, and Premier Stalin, was released to the press in Moscow on November 1. 1943. This Declaration read in part : “Accordingly, the aforesaid three Allied Powers, speaking in the interests of the thirty-two [tfiirty- t/iree] United Nations, hereby solemnly declare and give full warning of their declaration as follows : ‘‘At the time of the granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the above atrocities, massacres •>. For rh: fall t-rr of the D.-c’.aniion. roc Punishment for War
Crimes : The Inler.Allicd Declaration sitned at Si. James’,
Palace. London, on lhh January, 191?. and Petal,re Document,
12
WAR TRIAL IN BAN’GLA DESH
and executions, will be sent back to the countries in
which their abominable deeds were done in order
that they may be judged and punished according to
the laws of these liberated countries and of the free
Governments which will be created therein….
“The above declaration is without prejudice to the
case of the major criminals and who will be punished
by the joint decision of the Governments of the
Allies.” 10
The Inter-American Conference 1945
The Inter-American Conference on Problems of War
and Peace held at Mexico City. Febtuaiy-March 1945,
adopted a resolution on March 1, 1945 in which, with refer¬
ence to the “heinous crimes in violation of the laws of war,
of existing treaties, of the rules of International Law, of rhe
penal codes of civilized nations and of the concepts of civi¬
lized life,” it was resolved, inter alia, to “recommend that
the Governments of the American Republics do not give
refuge to individuals guilty of, responsible for. or accomplices
in, the commission of such crimes,” 11
United Nations War Crime* Commission
President Rossevelt. on October 7, 1942 announced that
the Government of the United States was prepared to co¬
operate with the British and other Governments in establish¬
ing a United Nations Commission for the Investigation of
War Crimes. On the same day, the British Lord Chancellor,
Lord Simon, announced in the House of Lords the proposal
to establish the Commission.
A diplomatic conference for the purpose of setting up
the Commission convened at the British Foreign Office on
10. 1‘icts Release, IX flul.’etin, Derailment of State, No. 223, Nov. 6.
1543. pp. 310. 311.
11. Final Act of ike 7nter.Atncric.in Conference on Problems tf U>ot
and Feoce, Mexico City, Februaiy.Miich. 1415 tPan-Ametictui
Union. 1415). pp. 37.38.
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 13-
October 20,1943, at the invitation of the Britiah Government.
The Commission was composed of representatives of the
following countries : Australia, Belgium, Canada, Nationalist
China, Czechoslovkia, Denmark, France, Greece, India,
Luxembourg, the Netherlands, New Zealand, Norway, Poland,
the United Kingdom, the United States, and Yugoslavia. It
sat at London, holding its first official meeting on January
11,1944. It terminated its activities on March, 31,194S. 11
Briefly, the activities of the Commission fell into two
main categories, the preparation of lists of war criminals,
and the making of recommendations to the member Govern¬
ments on various problems relating to the apprehension, trial,
and punishment of war criminals.
In preparing its lists, the Commission, considered the
documents presented to it by member Governments but did
not hold oral hearings. Its lists were not equivalent to formal
indictments. The Commission thus described the lists which
it issued :
“The Committee finally evolved four listings desig¬
nated as’A’,‘S’. ‘C‘and‘W.’A’listing was reserved
for those war criminals against whom the Com¬
mittee believed a clear prima facie case had been
presented and whom the Committee believed
should be delivered up for rriils.’S’ listing was
made in the case of accused war criminals against
whom the Committee found a prima facie case, but
against whom the case was not so strong as to warrant
‘A’ listing. As a practical matrer this listing came
to be assigned to those alleged war criminals who
appeared to be guilty of war crimes but against whom
the National Offices had been unable to collect a
large amount of definite evidence. They were to be
regarded as ‘suspects’ rather than ‘accused’. ‘C listing,
ac first, applied to adjourned cases, was eventually
of the Un,ud A-an’oiu War Crime, Cemmirjicn and the Develop!
Hlenl of the Latrt of ll’ar { Lor.Jon, Hu Mieity’l Stationery Office,
194$).
WAR TRIAL IN BAKGLA DESH
reserved by the Committee for alleged war criminals
who coaid not be identified. Witnesses to war crimes
were listed ‘W’ by the Committee.
“The total number of the various listings indicate
that 24.453 persons were listed ‘A’, 9. 520 ‘S’, and
2. 556 ‘W, during the four years of the Committee’s
existence. Of the 3,178 individual or collective
cases considered. 14S were classified as ‘C’ cases and
306 were withdrawn or remained adjourned.” 1 ’
A Far Easrem and Pacific Sub-Commission as a branch
of the United Nations War Crimes Commission was estab¬
lished pursuant to a decision of the latter body. It mer at
Chungking and subsequently at Nanking. It began its work
on November 29, 1944 and terminated its activities on
March 31. 1947. The sub-Commission considered largely
cases presented to it by the Chinese Government (Nationalist)
and prepared lists of Japanese war criminals. 11
Representatives of the United States, the United King¬
dom. the Provisional Government of France, and the Union
of Soviet Socialist Republics met at London lrom June s.6
to August b. 1945, to negotiate an agreement for the pro¬
secution and punishment of the major war criminals of the
European Axis.
An Agreement “for the Prosecution and Punishment of
the Major War Criminals of the European Axis” was signal
on August 3, 194?. by the United States, the Provisional
Government of France, the United Kingdom, and the Union
of Soviet Socialist Republics, “acting in the interests of all
the United Nations.” The Agreement provided in article 1
for the establishment, after consultation with the Control
Council for Germany, of an International Military Tribunal
for the trial of war criminals whose offences have no parti¬
cular geographical location whether they be accused indivi¬
dually or in their capacity as members of organisations or
13. History of tki l.niud Salim, War p. 4S3.
14. Sec /til., tip. 1:9.131. 144. 151.154.
W AR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 15
groups or in both capacities.” It was provided in article 4
that nothing in the agreement should “prejudice for provi-
>ions established by the Moscow Declaration concerning the
return of war criminals to the countries where they com¬
mitted their crimes.” Provision was made in article 5 for
adherence to the agreement by any Government of the
United Nations through notice to the United Kingdom.
Article 6 stipulated that nothing in the Agreement should
“prejudice the jurisdiction or the powers of any national or
occupation court established or to be established in any
Allied territory or in Germany for the trial of war criminals.”
This article was the main provision which defined the juris¬
diction of the Tribunal. It stated :
“The following acts, or any of them, are crimes com¬
ing within che jurisdiction of the Tribunal for which
there shall be individual responsibility.
“(a) Crimes Against Peace : namely, 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 fore¬
going;
“(b) Wat Crimes: nameiv. violations of the laws or customs
of war. Such violations shall include, but not be
limited to. murder, ill-treatment or deportation to
slave labor or for any other purpose of civilian popu¬
lation of or in occupied territory, murder or ill-treat¬
ment of prisoners of war or persons on the seas, kill¬
ing of hostages, plunder of public or private property,
wanton destruction of cities, towns or villages, or
devastation not lusnfied by military necessity:
“(c) Cumes Against Humanity : namely, murder, extermi¬
nation. enslavement, deportation, and other inhuman
acts commuted 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 rhe domestic I iw of
the country where perpetrated.” 1 *.
it. Apptndii ‘P’
16 WAR TRIAL IN BANGLA DESH
The Nuremberg Tribunal posed the following controversial
questions: What legal basis existed for the trial 7 Had the
Allied Powers a right under international law to institute
the war crimes proceedings at Nuremberg, as a result of
Germany’s unconditional surrender ? Could the Tribunal be
considered an international court, if so had it the consent and
approval of the international community or whether the
Nuremberg proceedings had the sanction of the international
community 7
In answering the first question it may be said that the
Allied Powers had a right under international law to cry Nazi
war criminals, which the civilised nations of the world recog¬
nised. The IMT Charter did not represent an arbitrary
exercise of power by the four Allies, but was “expression of
international law existing at the time of its creation.” and to
that extent was itself “a contribution to international law.■’ 1,
The main basis of the jurisdiction of the Nuremberg Tri¬
bunal over the German war leaders was the “universal”
principle of jurisdiction. According to this principle, every
nation can take jurisdiction over certain crimes against
international law. regardless of where or by whom they were
committed. This principle has been invoked on many occa¬
sions in order to punish various violations of international
law. However, the practice of states is not uniform in this
regard.
Contrary to the “universal” principle is the “territoriality”
principle, according to which a crime may pe prosecuted
under the lex loci. It was on this ground that the Allies had
been charged with exceeding their powers under international
law in holding the Nuremberg Trial. The territorialiiy principle
has. however, been breached by various other principles and
practices. While English and American jurists have supported
16. IMT. Vo’.. XXII. p. 461: wo lor a similar staromcr.t. JuJtment of
the International Military Tribunal frr the Far Fail. A.’or. 4-J2.
1946. pr. 25-76.
, R CRIMES AND GENOCIDE IN INTERNATIONAL LAW 17
the territoriality principle rather consistently. Continental
European lawyers have been willing to make exceptions in
the application of this principle. It has been generally recog¬
nised that nations have the right to punish such acts as trades
in slaves, women, children, narcotics, destruction of submarine
cables and piracy. The extention of the universal principle
jurisdiction to other crimes such as war crimes and crimes
against humanity is more recent. Many international lawyers
have expressed the opinion that stares may justify prosecution
of foreign nationals for war crimes.”
Furthermore, the “act of state” doctrine and the related
concerts of immunity also have been invoked to impose
limitations on rhe right of states to prosecute foreign
nationals.
The “act of state” doctrine is based on the idea that an
individual cannot be made responsible for an act which he
performed as an instrument or “organ of his state”; since
responsibility for such violations rests on the “collectivity
of individuals,” which is the state. 1 ’
The “act of state” doctrine which appears to be logical
in itself becomes nevertheless unacceptable in its application
in contemporary international law. It is observed : “There
is a presumption in modem international law that a contem¬
porary state is by hypothesis incapable of ordering or
ratifying acts which are criminal according to generally
accepted principles of municipal criminal law or which are
contrary to international law to which all the nations are
necessarily subjects.” 1 ’
Further, the modem theory of international law has
rejected the traditional principle of the immunity of the
state and its organs. The immunity that derives from the
17. Sc« Robett K. Wotml. 7*« Nuremberg Trialr in International
Law vLondon, Stevens and Sons. 1962). p. 66. n-25.
18 See ilnd. PP. 68 ff.
19. Peter Pa pad* toe. The Eichmann Trial (London. Stevena & Sots.
1964). p. 74.
TRIAL IN BANGLA DEiH
“act of state” doctrine must be distinguished from the privi¬
leges of exemption from the civil and criminal law of other
states which are granted to Heads of States and diplomats
under international law. It is impossible to admit, observes
Oppenheim that “individuals by grouping themselves into
states and thus increasing immeasurably their potentialities
fcr evil, can confer upon themselves a degree of immunity
from criminal liability and its consequences which they do
not enjoy when acting in isolation. Moreover, the extreme
drastic consequences of criminal responsibility of states are
capable of modification in the sense that such responsibility
is additional to and not exclusive of the international crimi¬
nal liability of the individuals guilty of crimes committed in
violation of International Law.”* 0
The same question has another aspect which likewise should
not be overlooked. As it has been pointed out. in contem¬
porary international law the individual has become a direct
subject of some international obligations, particularly in the
criminal field. This view has been incorporated in the
Genocide Convention and the Draft Code of Offenses against
the Peace and Security of Mankind prepared by the Inter¬
national Law Commission. However, there are differences
of opinion on the problem of state versus individual res¬
ponsibility. But there is no doubt that this complex prob¬
lem should be given an adequate and practical solution in
conformity with the new trends of international law. 11
20. Oppenheim. International Lav Vol I. (8th cd.. 1955) pp. 355. 357.
CRIMES AND GENOCIDE IN INTERNATIONAL LAW 19
It is now generally recognised that an act is adjudged to
be a crime according to international custom, international
conventions, or the general principles of justice, and an
individual may be held responsible for it under international
law. The Nuremberg Tribunal was thus justified “in assum¬
ing that the acts for which the defendants were being tried
were crimes under international law, and as an international
court it clearly had a legal right to apply international law
to the accused individuals.”’’
It may further be mentioned that the idea of prosecuting
the Axis leaders for crimes against peace did not arise until
late during the Second World War. The concept of crimes
against peace gained official recognition first in the recom¬
mendation of the Enforcement Committee in San Francisco,
which read as follows :
It being the original intent and meaning of the
Kellog-Briand Pact…that any person in the service
of any Party -State who violated its provisions…
should be held individually responsible for these acts,
it is declared that the aggressions of the Axis states
since the signing of the Pact violated its provisions
and that the persons in the service of such Axis states
are individually responsible for such acts and may
be brought to trial and punishment before any United
Nations court or other tribunal of competent juris¬
diction which may secure custody of such persons or
any of them **
This recommendation was adopted by the Third Com¬
mission on May 3, 1943, and led to the inclusion of the crime
against peace charge in che Charter for the IMT drafted at
the London Conference.
The IM r declared that it considered “aggressive war”
the supreme crime in international law since it affected not
only the parties ta a conflict, but the whole world and
combined in itself all the horrors of war.* 4 However, at no
22. Robert K. Woetrel. op. til. p. 121.
23. United Nitiont Conference on Inmtutiorul Organisation.
24. IMT, Vol. XXII. p. 461.
April 4,
20
•WAR TRIAL IN BANGLA DESH
point in the judgment did the Nuremberg Tribunal defined
“aggressive war”. But it distinguish between “aggressive
actions” nnd “aggressive wars” and thus provided a pracrical
standard of evaluation. According to the Nuremberg Tribu¬
nal, the Austrian “Anschluss” ar.d the imposition of German
administration upon parts of Chechoslovakia constituted
actions and could be regarded as steps in a plan to wage
aggressive war against other nations/ 5 The individuals
responsible for these actions, in view of the Tribunal, were
guilty of the crimes against peace. The Tribunal arrived at
the conclusion that the charge of crimes against Na:i war
criminals was just and as such the maxim of nullum ciimin
sine i’cue. nu!!a poena sine lege was not violated.
Several of the defendants at the Nuremberg Trial were
also convicted of war crime* and crimes against humanity.
While the war crimes with’which the Tribunal concerned
itself had all tiken place in the period from 1939 to 1945.
Some of the ctimes against humanity with which the German
defendants were charged had been perpetrated before tbe
outbreak of the war.
The conventional war crimes have been the subject of
various legal proceedings since the First World War. The
prosecution of these acts by the Nuremberg Trial did not,
therefore, constitute an innovation in international law.
However, a completely different legal situation existed with
the crimes against humanity perpetrated by the German
Government against political, racial and religions groups.
The question arises whether a state or greup of states
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 21
Britain, France and Russia intervened against Turkish atro¬
cities in 1827 and Russia intervened against the Balkan Stares
in 1378. There were also interventions in Armenia and Crete
in 1891 and 1896 because of the atrocities committed there.
The question arises whether such an intervention is justifiable
in the form of a trial of nationals of a state.
Certainly an intervention of this kind would be sanctioned
tinder international law. if it occurred in execution of an
international mandate. The conventional war crimes defined
in Article 6. (h) of the Nuremberg Charter were already
recognised as war crimes under international law, and were
covered bv Articles 46, 50, 52 and 56 of the Hague Conven¬
tion of 1907, and Articles 2. 3, 4. 46 and 51 of the Geneva
Convention of 1929. The articles of the Hague Convention,
which are largely embodied in the more recent Geneva
Conventions of 1949. prohibit among other things all needless
cruelty; the destruction of human life and property, unless
justified by reasons of military necessity; the confiscation of
private property: requisitions, except for the needs of an
occupation force, and pillage. The Convention further
stipulates that it is forbidden to absue or murder an enemy
who has laid down his arms or to deny him quarter. Under
the Geneva Convention of 1949 the universal principle of
jurisdiction “has been extended to cover ordinary war crimes,
so that these may be prosecuted regardless of the place where
they were committed or the nationality of the accused or
victim.”” As a matter of fact war crimes and crimes against
humanitv. i* is «tared. overlap.”
There can he little doubt that the war crimes and
crimes against humanity with which the Nazi leaders were
charged constituted violations of the above-mentioned inter¬
national conventions and as such represented violations of
general principles of law as recognised by civilised nations,
which are applied by international courts.
26. Robert K. Worriel. op. etr. p. 182, n. 15.
27. See Schwrlb, “Crime* Agiirut Humanity.” Brink Yearbook of Inter.
national Law, 1916. PP. 179.180.
national law. In the case of “superior orders”, the military
codes of justice of several nations, including Great Britain
and the United States clearly prohibit obedience to illegal
It now remains to be answered whether the Nuremberg
proceedings had the consent and approval of the international
community. It is maintained that “world opinion” or the
“outraged general sentiment of humanity”, justified the pro¬
secution of the Nazi war criminals.** But the point of view has
not been accepted by some writers on the ground that a group
of nations cannot act for the international community. More¬
over, this would lead to “chaos” in international relations”
and would result in the conflicts between the jurisdiction
of states. 90 It was also pointed out in dissenting opinion of
Jescheck in the Nuremberg Judgment that the Nuremberg
trial commenced in November 1915 and derived its legal
sane:ion from the United Nations War Crimes Commission
which was not a Commission appointed by the United Nations
Organisation, since the General Assembly had not yet met.
But there is no doubt, as has been observed that the United
Nations War Crimes Commission “represented the quasi¬
totality of civilised states at that time.” 91 It must also be
mentioned that the United Nations later initiated actions
to express its aflirmation of the principles applied at Nurem-
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 23
berg and thereby expressed its endorsement of the “principles”
of international criminal law which have been established by
the Nuremberg Charter and Judgment of the Tribunal, and
which have also been approved as such by unanimous decision
of the General Assembly of the United Nations on December
11. 1946. It may thus be said that the International Military
Tribunal represented an important milestone in the develop¬
ment of international criminal law.
Codiacation of Nuremberg Principles
On December 11. N’46. the General Assembly of the
United Nations passed the resolution which declared that :
The General Assembly, recognising the obligations
laid upon it by Article 13. Taking note of the
Law of the Chatter of the Nuremberg Tribunal of
August 8. 1945, for the prosecution and punishment
of the major war criminals; (1) reaffirms the principles
of international law recognised by the Charter of the
Nuremberg Tribunal (of August 8. 1945). and the
Judgments of the Tribunal; (2) Directs the Assembly
Committee on the Codification of International Law
created by the Assembly’s resolution of … to treat
as a matter of primary importance the formulation of
the principles of the Charter of the Nuremberg
Tribunal and of the Tribunal’s judgment in the con¬
text of a general codification of offences againt
the peace and security of mankind or in an Interna¬
tional Criminal Code. **
The Assembly Committee on the Codification and Progre¬
ssive development of International Law was directed to draw
up plans for the formulation of the Nuremberg principles in
the context of a general codification of offences against the
peace and security of mankind. The Committee did not
devise such plans, but recommended instead in its Report
of June 17. 1947, that the International Law Commission
should formulate the principles of international law recog¬
nized in the Charter of the Nuremberg Tribunal and in the
judgment of the Tribunal. 9 The Commission undertook a
32. Resolution No. 95 (1)
33. General Assembly Resolution 177 ill). 21st November. 1»17.
TRIAL IN BANGLA DESH
a preliminary consideration of the subject at its first cession-
In the course of this consideration, the question arose as to
whether or not the Commission should ascertain to what
extent the principles contained in the Charter and in the
judgment constituted principles of international law. The
conclusion was that since the Nuremberg principles had been
unanimously affirmed by the General Assembly in Resolution
95 (1) of 11 December 1946. the task entrusted to the
Commission was not to express any appreciation of those
principles as principles of international law but merely to
formulate them. **
On the basis of a report presented by Jean Spiropoulous,
Special Rapporteur for the topic, the Commission, at its
second session, in 1950. completed a formulation of the
principles of international law recognized in the Nuremberg
Charter and the judgment of the Nuremberg Tribunal, and
submitted it with commentaries to the General Assembly.
The text of the formulation, which needs citation, in full, is
as follows :
Principle I. Any person who commits an act which con¬
stitutes a crime under International Law is responsible there¬
for and liable to punishment.
Principle II. The fact that Internal Law does not
impose any penalty for an act which constitutes a crime
under International Law does not relieve the person who
committed the act lrom responsibility under International
Law.
Principle III. The fact that a person who committed an
act which constitutes a crime under International Law acted
as head of State or responsible Government official does not
relieve him from responsibility under International Law.
Principle IV. The fact that a person acted pursuant to
order of the Government or of a superior does not relieve
34. The Work of the International Im> Commiuion (Office of Public
Information, United Nations, New York). p« 21.
CRIMES AND GENOCIDE IN INTERNATIONAL LAW 25
him from responsibility under International Law provided a
moral choice was in fact possible to bim.
Principle V. Any person charged with a crime under
International Law has the right to a fair trial on the facts
and law.
Principle VI. The crimes hereinafter set out are punish¬
able as crimes under International Law :
a. Crimes agiinst Peace :
(i) Planning, preparation, initiation or waging of a war
of aggression or a war in violation of international
treaties, agreements or assurances :
(iil Participation in a common plan or conspiracy for
the accomplishment of any of the acts mentioned
under (i).
b. War Crime.” :
Violation* of the laws or customs of war which
include, but are not limited to. murder, ill-treatment
or deportation to slave labour or for any other pur¬
pose of civilian population of or in occupied territory,
murder or ill-treatment of prisoners of war or persons
on the seas, killing of hostages, plunder of public or
private property, wanton destruction of cities, towns,
or villages, or devastation not justified by military
e. Crimes against Humanity :
Murder, extermination, enslavement, deportation and
other inhuman acts done against any civilian popula¬
tion, or persecutions on political, racial or religious
grounds, when such acts are done or such persecutions
are carried on in execution of or in connexion with
any crime against peace or any war crime.
Principle VII. Complicity in the commission of a crime
against peace, a war crjme, or a crime against humanity as
set forth in Principle VI is a crime under International
By resolution 488 (V) of 12 December 1950, the General
Assembly decided to send the formulation to tbe Governments
TRIAL IN BANGLA DESH
of Member Scares for comments, and requested the Com¬
mission, in preparing the draft code of offences against the
peace and security of mankind, to take account of the obser¬
vations made on this formulation by delegations during the
fifth session of the General Assembly and of any observations
which might later be received from Governments.
The above text of the International Law Commission
does not represent a statement of all the principles in the
Nuremberg Charter and judgment of Nuremberg Tribunal,
but it summarised the main principles applied by the Tribunal
as derived from the Charter. It is understandable, therefore,
that the International Law Commission leaned heavily on
the Nuremberg Charter in its formulations of the Nuremberg
principles.
It should also be mentioned here that in 1951 the Inter¬
national Law Commission submitted to the Sixth General
Assembly for its consideration a Draft Code of Offences
against the Peace and Security of Mankind which contains
many of the crimes listed in the Nuremberg Charter and
Judgment. 15 As to the scope of the draft Code, the Com¬
mission decided to limit the Code to offences containing a
political element and endangering or disturbing the mainten¬
ance of international peace and security. The Commission
also decided that it would deal only with criminal responsi¬
bility of individuals and that no provisions should be included
with respect to crimes by abstract entities as the Nuremberg
Tribunal had stated in its judgment that “Crimes against
international law are committed by men. not by abstract
entites, and only by punishing individuals who ccmmit such
crimes can the provisions of international law be enforced.”
Thus, offences enumerated in the Draft Code were charac¬
terized as “crimes under international law. for which the
responsible individuals shall be punishable.”
CRIMES AND GENOCIDE IN INTERNATIONAL
The Commission, however, refrained from providing for
institutional arrangements for implementing the Code; it
thought that, pending the establishment of an international
criminal court, the code might be applied by national court.
As the Commission deemed it impracticable to prescribe,
a definite penalty for each offence, it was left to the compi-
tent tribunal to determine the penalty for any ofTence under
the Code, taking into account the gravity cf the particular
On several other occasions the United Nations confirmed
certain Nuremberg principles as “valid tenets” of inter¬
national law. the violation of which the Nuremberg Tribunal
bad punished as international crimes. Thus the Universal
Declarations on Human Rights which was passed by the
General Assembly on December 10. 1948” enumerates many
individual right and fundamental freedom which had been
violated and abrogated by some of the Nazi war criminals.
Another important international agreement which brands
crime which had been committed by some of the Nuremberg
defendants as international crimes is the Convention on the
prevention and Punishment of the Crime of Genocide which
was unanimously approved by the Generel Assambly on
December 9, 1948.**
The Crime of Genocide
Genocide is unfortunately as old as the history of man.
The history of western civilization begins with the “deli¬
berate” mass exterminations of Christians by the imperial
government of Rome. But the worst atrocities of Nero
against the Christians failed to reach the level of those per¬
petrated by Hitler against the Jews. No one can yet have
forgotten the organized butchery of lacial groups by the
Nazis in World War II, which had resulted in the extermina’
33. General Aascmbly Rcti-lution C60 (III).
28 WAR TRIAL IN BANGLA DESH
tion of some 6 million Jews. Decent men everywhere were
outraged and revolted by the barbaric and bestial conduct
of the Nazi rulers. These events so shocked the conscience
of civilized men that, after World War II. it had come to be
accepted that such conduct could no longer be tolerated in
civilized society and that it should be prohibited by the inter¬
national community.
This was the psychological framework within which the
United Nations began to function as a permanent inter¬
national organisation. The next step was quite logically
the adoption of a resolution condemning genocicc as a crime
under international law by the General Assembly of the
United Nations at its first session in December 1946. 19 It
was agreed that :
Genocide is a denial of the right of existence of entire
human groups, as homicide is the denial of the right
to live of individual human beings; such denial of
the right of existence shocks the conscience of man¬
kind. results in great losses to humanity in the human
groups, and is contrary to moral law and to the
spirit and aims of the United Nations.
Pursuant to the above-mentioned resolution, a United
Nations Ad Hoc Committee on Genocide was established by
the Economic and Social Council. 40 The Ad Hoc Committee,
in turn, was entrusted with the preparation of a draft conven¬
tion on the crime of genocide, and such a draft was prepared
by it in 1948. The Economic and Social Council transmitted
the draft to the Third Session of the General Assembly, 41
Following consideration of the draft text ir. the Legal
Committee (Sixth Committee) of Assembly in 1948, the
Assembly unanimously approved the text of a Convention on
the Prevention and Punishment of the Crime of Genocide
and proposed it for signature and ratification or accession. 41
39. Resolution 96 (I), December II. 1946.
40. ECOSOC Res. 117 (VI).
41. ECOSOC Res. 153 (VII). For the Report of the Committee and
Draft Convention drawn up by the Committee see US Doe. E/791.
Mny 21. 1948.
42. General Assembly Resolution 260A (III).
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 29
The scope of the Convention is not limited to crimes of the
nature committed during the war,
The Genocide Convention was carefully drafted and,
indeed, represents the culmination of more than two years of
thoughtful consideration and treatment in the United Nations.
The Genocide Convention contains 19 articles. Of these,
the first nine are of a substantive character, and the remain¬
ing ten are procedural in nature.*’
The Genocide Convention makes a clear distinction bet¬
ween genocide and homicide. The distinction is that in
homicide, the individual is the victim, in genocide, it is the
group. However, both are shocking and result in losses to
humanity and thus are contrary to moral law. Further,
genocide has been unanimously declared a crime under inter¬
national law and is a matter of international concern.**
The following five acts, if accompanied by the intent to
destroy, in whole or in part, a nacional. ethnical, racial, or
religious group, constitute the crime of genocide :
“(a) Killing members of the group;
“(b) Causing serious bodily or mental harm to members of
the group;
“(e) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in
whole or in part;
“(d) Imposing measures intended to prevent births within
the group: and
‘‘(e) Forcibly transferring children of the group to another
group.” u
The Convention further provides that following five acts
involving genocide shall be punishable. These acts are :
“(a) The crime of genocide itself:
“(b) Conspiracy to commit genocide;
43. For text Mf United Nations Treaty Scries
44. Art clr I of the GcnocvJe Convention.
45. Article II of the Genocide Convention.
Vol. 78, |
30
WAR TRIAL IN BANGLA DESH
“(c) Direct and public incitement to commit genocide:
“(d) Attempt to commit genocide: and
“(e) Complicity in genocide.’’ 1 *
It is further provided that any of the above five genocidal
acts shall be tried by a court of the state in whose territory
the act was committed.” It should further be mentioned
here that none such of these acts is to be considered a poli¬
tical crime for the purpose of extradicrion.*’
The Genocide Convention approved by the General
Assembly by a vote of 55 to 0, entered into force for 43
countries, pursuant to its terms on January 12, 1951.*’
Unfortunately the leading powers of the world—the United
States and the Soviet Union have not ratified the Genocide
Convention.
The United States has a record of humanitarian dip¬
lomacy. beginning with the early years of the Republic when
President Quincy Adams expressed the public sympathies of
the American people with the Greeks in their struggle for
independence from Turkish rule. The United States Govern¬
ment “remonstrated more than once with other governments
regarding their prosecution of the Jews : with Rumania, in
1902; and with Czarist Russia in 1891 and 1904.”“ In
addition, the United States “has also intervened diplomati¬
cally with other governments for the protection of Christians,
not only on behalf of American missionaries but also on
46. Anice Ill ol the Genocide Convention.
47. Article IV of the Genocide Convention.
48. Article VII of the Genocide Convention.
49. Theie counrriel vote : Australia. Belgium. Brazil. Bulgaria, Cam¬
bodia. Canada. Ceylon. Chile. Costa Rica. Cuba, Czecholovahia,
Denmark. Ecuador, Egypt. El Salvador. Ethiopia. Fiance. Gautemala,
Haiti. Honduras, Hungary. Iceland, Iatacl, Italy, Jordan. Korea.
Laos, Lebanon, Liberia, Meaico, Monaco, Nicaragua. Norway.
Panama, Philippine*. Poland. Rumania, Saudi Arabia. Sweden,
Turkey. Viet.Nam, Yugoalavia.
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 31
behalf of converts. For example, it is interesting to note
that in the treaty of October 8. 1903. between China and
the United States, the Chinese Government specifically agreed
not to persecute teachers of Christian doctrine nor to molest
Chinese converts in the peaceable practices of Christianity.” 1 ‘
The United States “has also intervened diplomatically on
behalf of native Christians in the case of the Armenian
population of Turkey.’ * 1 Finally, it should be recalled that
the United States “intervened in Cuba in 1898, in the cause of
humanity” and to put an end. to quote the joint resolution of
April 20. 1896. to “the abhorrent conditions which have
existed for more than three years in the Island of Cuba…have
shocked the moral sense of the people of the United States,
have been a disgrace to Christian civilization.”**
In June 1949, President Truman forwarded the Genocide
Convention to the Senate for ratification. He observed :
In ratifying the Genocide Convention, we will let the
the world know that the United States does not con¬
done mass atrocities any more now than in the past,
and we will endorse the principle rhat such conduct is
criminal under international law. This action by the
United States will at least be a deterrent to the
rulers of certain countries who consider genocide a
justifiable means to promote their political objectives.
I also regard speedy ratification of the Genocide
Convention as essential to the effective maintenance
of our leadership of the free and civilized nations of
the world in the present struggle against the forces of
aggression and barbarism.**
The former Deputy Under Secretary of State, Dean Rusk,
supporting President Truman’s recommendation, pointed to
the “inescapable fact that other nations of the world expect
the United States to assert moral leadership in international
91. Ibid.
51 Ibid.
53. Ibid.. PP. 861-861
51. Department of State. Bulletin. Vol. Xlll. September 4,1950, p. 379.
32
WAR TRIAL IN BANGLA DESK
affairs,*’ and thus, he said, that the United States should “take
the lead in raising moral standards of international society.
And prevailing international conditions make it imperative
that the United States continue to play this tole.’ 64
But both with regard to the proposed international bill of
rights and with regard to the Genocide Convention, the un¬
expected happened. There has been a great deal of contro¬
versy among lawyers in the United States as to the Genocide
Convention. The principal objection which has been raised
by opponents to the Genocide Convention is that it is
contrary to the American ‘ federal system because it rakes
away an important parr of criminal jurisdiction from state
governments. 6 *
A good deal of criticism against the Genocide Convention
also arises because of the uncertain and undeveloped state of
that part of international law which relates to international
crimes. 61 In 1820, Me. Justice Story in the case of United
States v. Smith remarked :
…Offences, too, against the law of nations, cannot
with any accuracy, be said to be completely ascer¬
tained and defined in any public code recognized by
the common consent of nations. In respect, there¬
fore as well as delete to telonies on the peculiar fitness
to giving the power to define as well as to punish;
and there is not the slightest reason to doubt that
this consideration had very great weight in producing
the phraseology. 69
The movement towards the acceptance of additional inter¬
national obligations imposed by the Genocide Convention
precipitated a miasmal reaction, led in Congress by Senator
Bricker. This counter movement is known as Brickerism. A
committee of the American Bar Associrtion—known as the
WAR CRIMES AND GENOCIDE IN INTERNAllONAL LAW 33
Commitee on Peace and Law Through the United Nations
(in I9SS its name was changed to the Committee on World
Order under Law) preceded Senator Bricker in agitating
against the Genocide Convention. This Committee and the
Senator were mainly responsible for the reversal of White
House humanitarian policy. 15
The Soviet Union has also refused to ratify the Genocide
Convention. The East European countries have either
refused to ratify the Convention or ratified it with serious
reservations.
The question now arises: Is the Genocide Convention
an effective international legal instrument in view of non¬
ratification on the part of the leading powers of the world,
the United States and the Soviet Union.
In response it may be said that in the case of genocide,
all states Members of the United Nations have twice unani¬
mously declared that the practice of genocide is a crime
under international law and that states should co-operate to
prevent and punish the practice. In the judgment of the
world community, genocide is a matter of grave international
concern. Today it is a threat to many religious groups and
small nations throughout the world. By the Eichmann Trial,
full light had been cast on the crime of genocide in the twen¬
tieth century in all its details.
The finil question thit n:eds to be answered is : what are
the obstacles and the problems which present day inter¬
national situitinn raises in the establishing of an effective
restraint of international crimes 7
Projects for an International Criminal Court
The initial problem is whether the creation of an inter¬
national jurisdiction competent to punish international crimes
should precede the precise definition of such crimes or
M. See Vernon Van Dyke, Human Rifhtr, tht United Slatci and World
Community (New York. Oxford University Press, 1970), Chop. 7,
esp. pp. 129-138.
34
WAR TRIAL IN’ BANGLA DESH
whether such jurisdiction must await a more or less com¬
prehensive codification. The plans for an international juris¬
diction (or the punishment of international crimes foundered
after First World War because of the two ambitious nature
of the various projects. The Committee of Jurists which
drafted the statute for the Permanent Court of Irternational
Justice in 19!0 recommended also the establishment of an
International Criminal Court. The Assembly of the League
pronounced the plan premature. Later a draft was prepared
for the International Law Association by Dr. Bellot and
adopted at its Vienna Conference in 1926. The Inter-Parlia¬
mentary Union tentatively adopted a draft at its Washington
Conference in 1925 prepared by Professor Pella. The Inter¬
national Association for Penal Law at its meeting in Brussels
in 1926 also adopted a resolution for the setting up of an
international jurisdiction for the punishment of certain viola¬
tions of the law of nations. These drafts were later depo¬
sited officially with the Secretary-General of the League of
Nations. While differing in detail, they proposed to convey
criminal jurisdiction upon the Permanent Court of Inter¬
national Justice through the creation of a Criminal Chamber.”
But a favourable political climate which is necessary for
any general grant of criminal jurisdiction was lacking during
the period between the two world wars, which is also lacking
at present to a certain extent. However two important events
must be signalized which have directed the evolution of inter¬
national criminal law. The first is the fact that there is now
realization of the need for international cooperation in out¬
lawing the shocking crimes, such as genocide, and this need
reflected itself in the approval and endorsement to the
principles of the Nuremberg Charter by international
community. The other influence is the realization on
the part of the United Nations of ihe necessity for the
control by law of all methods of mass destruction and
60 See Kuhn. “International Criminal luriadiction”, 41 AJIL (1947).
PP 437.43’.
WAR CRIMES AND GENOCIDE IN INTERNATIONAL LAW 35
acts of inhumanity. The International Court of Justice is
not the proper forum to implement this concrol as its statute
was not designed for penal jurisdiction and its amendment
would be difficult in the present international situation. The
truth is that an international penal jurisdiction has to he
created in view of the imperative need for protection against
the forces of aggression and barbarism, and for which the
international elite must give sincere cooperation in the
development of international law on the basis of human
2
The Trials of the Major War Crimes
and Genocide : Survey of Proceedings
and Appraisals of the Judgments
Historical Background
War Crimes trials are not a new phenomenon. Several
war crimes trials occurred in antiquity and the Middle Ages.
Several examples may be cited from Greek mythology. In
ancient Greece the prisoners of war were accused of a number
of war crimes and they were “all sentenced to death.’’ 1
In the Middle Ages several trials were held in Europe.
In 1474 the trial of Sir Peter of Hagenbach was held.
Hagenbach instituted a regime of terror in the town of
Breisach and his crimes “were unique in their ferocity…”*
On May 4, 1474, Hagenbach was tried and was sentenced to
death.
A new system of international law gradually evolved after
the Thirty Years’ War. which marked a new phase in the
history of the war crimes trials.
In the second half of the eighteenth century several trials
took place in Great Britain and the United States in which
individuals were accused of committing international offences.
1. For an account of itiala in ancient Greece, ace Kobett K-Woctxel,
The Nuremberg Trial, in /nlernalioiuf Lair, op. c„. pp. 17-19.
2. Ibid.. P. 19.
THE MAJOR WAR TRIALS 37
For example, in 17% an English court convicted persons for
the “furnishing of unwholesome food to French prisoners to
the discredit of the King.”* However such of these trials
were not international in character and they affected the
British and American nationals.
Likewise the victorious Powers of 1815 did not institute
a judicial proceeding to try Napoleon for violating the Con¬
vention of April 11, 1814. According to this Convention
Napoleon was to retire from war-activity. But he re-entered
France with an army. The Congress of Vienna thereupon by
a Declaration of March 13. 1815 declared Napoleon “an
outlaw” 4 and he was entrusted to the custody of the British
Government and which banished him to the Island of St.
Helena.
Prisoners of war were also tried by British courts after
the Boer War for crimes they had committed before their
capture.
However, the German Code of Military Justice of 1872
stipulated that prisoners of war could not be tried by their
captors for crimes they had committed before capture. But
in view of the prosecution of German prisoners of war by
French courts during the First World War. the German
courts reversed the earlier practice and Allied prisoners of
war were tried by German military tribunals for violations
of the laws of war and the Hague Rules of Land Warfare
of 1907. This development is of special importance as the
prosecution and punishment for violations of rules of Land
Warfare became part of customary international law.’
The Leipzig Trials
After the First World War, the Allied “Commission on
the Responsibility of the Authors of the War and on Enforce¬
ment of Penalties” met on January 25. 1919, to recommend the
necessary action to be taken against enemy nationals accused
38 WAR TRIAL IN BANGLA DESH
of having committed war crimes. In its report ta the Pre¬
liminary Peace Conference irt Paris, the Commission recom¬
mended that persons wfab 1 ‘commit the following acts be
tried :
(a) Acts which provoked the world war and accompanied
its inception ; ■ <‘
(b) Violations of the laws and customs of war and the
laws of humanity.®
The Commission recotnmended the setting up of ‘a
“High Tribunal” consisting ‘of three members from each of
five major Allied Power* ■ snd one from each of the other
Powers. The law of the court’would be “the principles of
the law of nations as tbe insult from the usages established
among civilised peoples…”’
The recommendations of thfe Commission had an important
influence on the drafting of the pumtive provisions of the
Treaty of Versailles on the, punishment of war criminals.
Article 227 of the Versailles Treaty provided that Kaiser
William II should “be publicly arraigned for a supreme
ofiance against international morality and the sanctity of
treaties.” Article 228 of’the Treaty provided far the right
of the Allied and Associated Powers to try accused persons
for violating the laws and customs of war before military
tribunals. Ariticle 229 provided that persons accused of
committing illegal acts against one of the Allied Power* 1 ,
should he tried before the military cojrts of the respective
nations. I3y Article 230 of the Versailles Treaty, the German
Government was hound to furnish all documents and other
materials that could be used as evidence in the trials-
However, the above provisions of the Treaty of Versailles
were never realised in the sense that they were intended*
Germany made every effort to prevent the handing over
the persons charged with war crimes.
6. American Journal of International lav. 1920, p. 95
7. Ibid., p 122
8. Sec Robctc K. Woctzcl. op. eft* pp. 31-32.
E MAJOR WAR TRIALS
39
On February 13.1920 the Allied Powers consented to
let Germany try the persons accused of war crimes, but they
reserved the right to institute their own proceedings if the
trials conducted by Germany should prove unsatisfactory.
The German court met at Leipzig. Of the forty-6ve
cases submitted by the Allies, twelve were tried bv the Leipzig
court, and six defendants were convicted. The Allied Powers
were highly dissatisfied and as a protest withdrew the out¬
come of the Leipzig trials’
After the Leipzig trials various attempts were made to set
up an international court to administer international law in
trials for offences against the laws and customs of nations.
These attempts emanated from private associations and
individuals. 10
At the end of the Second World War an inter-Allied
agreement set up the Nuremberg Tribunal to try the German
leaders not only for war crimes, but also for crimes against
peace and crimes against humanity. 11
The Nuremberg Trial
The Njremberg Trial was “a monumental undertaking
judged by all legal standards.” 1 * The tribunal held 403 open
sessions. Thirty-three witnesses appeared for the prosecutors
who also put in evidence over 4.033 documents. There w ere
sixtv-one witness for the defence. The reported evidence in
the trial comprises twenty-four printed volumes and seventeen
additional volumes of documents.
An indictment against 24 major German war criminals
and six groups or organizations wis lodged with the Inter¬
national Military Tribunal in Berlin on October 13, 194:5.
After receiving the indictment, the Tribunal moved to
Nuremberg. The defendant Ley committed suicide on Octo-
9. Sec ibid.. P. 34.
10. See ibid: p. 36.
1’ Jb’d dtt *’ ltd b * ck
40
WAR TRIAL IN BANGLA DESH
ber 25.1945. On November 15. 1945, the Tribunal ruled
that the defendant Gustav Krupp could not be tried because
of his physical and mental condition. The defendant
Bormann was tried in absentia.
The trial opened on November 20,1945. Final arguments
were concluded on August 31, 1946. The Tribunal rendered
its Judgment on September 30 and October 1. 1946. It
acquitted three of the defendants (Schacht, von Papen, and
Fritzsche) and found the remaining 19 defendants guilty
on one or more counts of the indictment. The Tribunal
declared three of the indicted organizations to be criminal as
to those who became or remained members after September
1.1939.
The Tribunal’s judgment has been summarized as follows
by Brigadier General Telford Taylor, Justice Jackson’s Deputy
Chief of Counsel and himself subsequently Chief of Counsel
for War Crimes :
“The Tribunal dealt with fundamental legal questions
in four sections entitled respectively ‘The Law of the
Charter.’ ’The Law as to the Common Plan or Cons¬
piracy.’ ‘The Law relating to War Crimes and Cri¬
mes against Humanity.’ and ‘The Accused Organiza¬
tions.’ In the first, the IMT discussed the defense
contention that the charge of aggressive war should
be dismissed because ‘no sovereign power had made
aggressive war a crime at the time that the alleged
criminal acts were committed.’ and that ’there can
be no punishment of crime without a pre-existing
law.”
This contention the IMT rejected, holding that “aggressive
war had been a crime under international penal law at least,
since the Pact of Paris (Kellogg-Briand Pact) of 1928.” In
this section they also rejected “certain other general defenses,
such as the contention that international law is concerned
with the actions of sovereign states, and provides no punish¬
ment for individuals (‘crimes against international law are
committed by men, not by abstract entities, and only by
punishing individuals…can…international law be enforced’).
THE MAJOR WAR TRIALS 41
and that the defendants were under Hitler’s orders and
therefore not responsible for their acts”, saying:
“That a soldier was ordered to kill or torture in
violation of the international law of war has never
been recognized as a defense to such acts of brutality,
though…the order may be urged in mitigation of the
punishment. The true test…is not the existence of
the order, but whether moral choice was in fact
possible.”
In the second section, devoted to the conspiracy charge,
the Tribunal decided (for technical reasons based on the
particular language of the London Charter) that the charge
of conspiracy to commit war crimes and crimes against
humanity should be disregarded, and that ‘only the common
plan to prepare, initiate and wage aggressive war’ needed to
be considered. The court adopted a “rather narrow view of
the concept of conspiracy, not so evident in its general
language as in its decision as to the guilt or innocence of
particular defendants.” In this portion of the judgment the
1MT declared that ‘the conspiracy must be clearly outlined
in its criminal purpose. It must not be too far removed
from the time of decision and of action’: but the court held
that ‘the evidence establishes the common planning…by
certain of the defendants’ and rejected the defense argument
that ‘common planning cannot exist where there is complete
dictatorship,’ saying:
“Hitler could not make aggressive war by himself.
He had to have the co-operation of statesmen, military
leaders, diplomats, and business men. When they,
with knowledge of his aims, gave him their co-opera¬
tion, they made themselves parties to the plan he
had initiated. They are not to be deemed innocent
because Hitler made use of them, if they knew what
they were doing.”
WAR TRIAL IN BANGLA DESH
In tbe third ‘legal’ section, the IMT disposed of the con¬
tention that “the defendants coold not be held to compliance
with the laws of war as set forth in the Hague and Geneva
Conventions because several of the belligerents in the Second
World War (notably the Soviet Union) were not parties to
these conventions.” This argument, said the court, “overlooked
tbe fact that the conventions were merely declaratory of pre¬
existing and well-established laws of war ‘recognized by all
civilized nations,’ and that the laws of war .are binding on all,
irrespective of whether a particular government has signed a
particular convention.”
In this section, too. the Tribunal dealt summarily with
the concept of ‘crimes against humanity.’ The laws of war are
operative only in war time: to what extent do atrocities com¬
mitted in peace-time constitute ofTenses against international
law 7 Under what circumstances are atrocities committed
within the boundaries of a single nation such as the pre war
persecution of Jews. Gypsies, and others by the Nazis-
matters of international judicial concern 7 These nettles the
court did not grasp. An avenue of escape was found in the
language of the Charter.
“The policy of persecution, repression, and murder of
civilians in Germany before the war of 1939. who
were likely to be hostile to the Government, was most
ruthlessly carried out. The persecution of Jews during
the same period is established beyond ali doubt. To
constitute Crimes against Humanity, the acts relied
on before the outbreak of 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 con¬
nection 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.”
After the outbreak of war. however, the atrocities were
TRIALS
THE MAJOR WAR
43
clearly committed in connection with aggression and therefore
were within the IMTs jurisdiction :
“…insofar as the iuhumane acts charged in the Indict¬
ment, and committed after the beginning of the war.
did not constitute War Crimes, they were all com¬
mitted in execution of or in connection with, the
aggressive war, and therefore constituted Crimes
•gainst Humanity.”
In short, atrocities committed during the war by Germans
against Germans, or against nationals of the ‘satellite’ allies of
Germany (such as Hungary and Rumania), although not in
violation of the laws of war (which apply only between belli¬
gerents), “were given international juridical recognition as
crimes against humanity. Atrocities committed prior to the
war. however shocking, were declared, under the language of
the Charter, to be beyond the IMTs judicial pale.”
Finally, the IMT wrestled with the novel questions prese¬
nted by the charges against the ‘groups organizations’ such
as the SS and the ‘General Staff questions which had been
troublesome throughout the trial. The Tribunal noted that,
under the London Charter (Article 10) and Council Law
No. 10 (Article II, 1 [d]), members of organizations declared
criminal by the IMT could be convicted of the crime of
membership, and remarked :
“This is a far reaching and novel procedure. Its
application, unless properly safeguarded, may produce
great injustice.
“…criminal guilt is personal, and…mass punishments
should be avoided. If satisfied of the criminal guilt of
any organization or group, this Tribunal should not
hesitate to declare it to be criminal because rhe
theory of “group criminality” is new. or because it
might be unjustly applied by some subsequent tribu¬
nals. On the orher hand, the Tribunal should make
such declaration of criminality so far as possible in a
manner to insure that innocent persons will not be
punished.”
The nub of the court’s decision on this thorny issue was
that “no one should be convicted on the ground of membership
44 WAR TRIAL IN BANGLA DESH
unless he either had ‘knowledge of the criminal purposes or
acts of the organization’ or was personally implicated in the
commission’ of criminal acts.” ‘Membership alone is not
enough to come within the scope of this declaration The
IMT went on to recommend that, “in subsequent trials of
individuals on the charge of membership, the classifications
and penalties should, so far as possible, be uniform in the four
occupation zones; that no punishment for membership pur¬
suant to Law No. 10 should exceed the punishment prescribed
under the new German ‘De-Nazification Laws’; and thac no
one should be punished for membership both under Law
No. 10 and the De-Nazification Law.”
As for the organizations themselves, the IMT found little
difficulty in declaring the ‘Leadership Corps’ of the Nazi Party
and the SS and Gestapo to be criminal organizations as to
those who became or remained members after 1 September
1939. The Storm Troopers (SA) had ceased to be of greBt
importance after the Roebm purge (1934). and the Tribunal
declined to declare the SA criminal. The Reich Cabinet also
escaped because it had ceased to function ‘as a group or organi¬
zation’ after 1937, and in any event was ‘so small that members
could be conveniently tried in proper cases without resort to a
declaration.’ The ‘General Staff and High Command’ was not
subjected to a declaration for the same reason, and also
because the court felt that the military leaders did not con¬
stitute an ‘organization’ or a ‘group’ within the meaning of the
Charter.. However, the Tribunal commented that:
“Although the Tribunal is of the opinion that the term
‘ group” in Article 9 must mean something more than
this collection of military officers, it has heard much
evidence as to the participation of the officers in
planning and waging aggressive war, and in committing
War Crimes against Humanity. This evidence is,
as to many of them, dear and convincing.
“They have been responsible in large measure for the
miseries and suffering that have fallen on millions of
men. women, and children. They have been a disgrace
to the honourable profession of arms.
THE MAJOR WAR TRIALS 45
“Many of these men have made a mockery of the
soldier’s oath of obedience to military orders, when
it suits their defense they say they had to obey ; when
confronted with Hitler’s brutal crimes, which are
shown ro have been within their general knowledge,
they say they disobeyed. The truth is they actively
participated in all these crimes, or sat silent and acqui¬
escent, witnessing the commission of crimes on a scale
larger and more shocking than the world has ever had
the mislortuiie to know. This must be said :
“Where the facts warrant it, these men should be
brought to trial so that those among them who are
guilty of these crimes should not escape punishment.”
The concluding portion of the judgment, dealing with the
guilt or innocence of the individual defendants, was “perhaps
the least satisfying part of the opinion. Tire decision in each
case required that the general principles laid down earlier in the
judgment be interpreted and applied to a particular set of facts
established by the proof. With twenty-two such sets, some of
which presented very delicate problems, the IMT was unable
to avoid a number of pitfalls, and troublesome inconsistencies
ire readily apparent.”
With respect to Counts one (considered by the IMT as a
charge of conspiracy to plan or wage aggressive war) and
Two (the substantive crime of planning or waging aggressive
war) an interesting reversal took place. The prosecution (in
this instance the British and Americans) obviously “considered
conspiracy the broader and more inclusive charge, and had
accordingly indicted all of the defendants under Count One,
but had only charged eighteen of the defendants under Court
Two.” The IMT. however, took just the opposite view, and
treated conspiracy as the more restricted charge. Eight defen¬
dants only were convicted under Count One. and these eight
were also convicted under Count Two. All eight were either
close personal or Party confidants of Hitler (Goering, Hess.
Ribbentrop. and Rosenberg) or were top military or diplo¬
matic figures who were privy to the most secret plans and
attended conferences where Hitler personally revealed his
intentions (Goering. Ribbentrop, Keitel. Raeder. Jodi, and
46
TRIAL IN BANGLA DESH
von Neurath). But four others—Frick, Funk, Doenitz, and
Seyss—Inquart—acquitted of the conspiracy charge were
nevertheless convicted under Count Two. Frick as an adminis¬
trator and bureaucrat. Funk as an economic planner, Doenitz
as commander of all German submarines, and Seyss—Inquart
as a Nazi pro-consul in occupied Poland and the Netherlands t
bad planned or waged aggressiye war, although they had nor
conspired.
The six defendants not charged under Count Two were
acquitted undei Count One. Also acquitted were four defen¬
dants who were charged on both counts—Schacht, Saucket.
von Papen, and Speer. Despite Papen’s international notoriety
be was not close to Hitler and his activities as Ambassador to
Austria and later to Turkey were too slender a basis for
conviction. The acquittals of Schacht, Sauckel, and Speer were
more difficult to analyze. The Tribunal’s unspoken premise
“seems to have been that Schacht deserted the Nazis too soon
(he lost his struggle with Goering in 1936 and 1937, and was
dismissed by Hitler from the Presidency of the Reichsbank in
January 1939), and that Sauckel and Speer attained high posi¬
tions too late (1942). to support their conviction.” But on the
face of the judgment it is hard, according to Brigadier Gen.
Taylor “to see why Sauckel and Speer were less guilty of
‘waging’ aggressive war than Doenitz or Frick or Seyss-
Inquarr : as to Sauckel, the court said only that he was not
‘sufficiently involved, and as to Speer that—
“His activities in charge of German armament produc¬
tion were in aid of the war effort in the same way that
other productive enterprises aid in the waging of war ;
but the Tribunal is not prepared to find that such
activities involve engaging in the common plan to wage
aggressive war as charged under Count One or under
Count Two.”
Schacht escaped because the evidence failed to establish
‘beyond a reasonable doubt’ that ‘Schacht did in fact know of
the Nazi aggressive plans.’
THE MAJOR WAR TRIALS 47
The guilt or innocence of the defendants under Counts
Three and Four (‘war crimes’ and ‘crimes against humanity’)
was, in general much easier to determine. Schacht and
Papen had not been ‘‘charged under these counts. Of the
remaining twenty defendants, all were found guilty as charged
except Hess and Fritzsche. Hess flew to England in June
1941, after the war-time atrocities had begun but before
they had reached their peak, and his connection with them
could not be satisfactorily established. Fritzsche was a well-
known Nazi radio commentator and propagandist but a man
of altogether minor stature in the Nazi hierarchy, and bis
acquittal would not be of much significance but for the
glaring contrast between it and the conviction and sentenc¬
ing to death of Julius Streicher, also a Nazi propogandist.
In appearance and other personal qualities Fritzsche certainly
compared more than favourably with Streicher, and the IMT
concluded that Fritzscbe’s broadcasts were not ‘intended to
incite the German People to commit atrocities on conquered
peoples,’ whereas Streicheris publications constituted ‘incite¬
ment to murder and extermination at the time when Jews in
the East were being killed under the most horrible condi-
The reading of the judgment was concluded on 1 October
1946, and the same day the IMT sentenced Goering, Ribben-
rop, Keitel, Kaltenbrunner. Rosenberg, Frank, Frick, Strei¬
cher, Sauckel. Jodi, Seyss-Inquart, and Bormann to death
by hanging. Hess, Funk, and Raeder were sentenced
to life imprisonment, and Doenitz, Scbirach, Speer, and von
Neurath to terms ranging from ten to twenty years. Schacht,
Papen. and Fritzsche were acquitted and freed. The Soviet
13. T. Taylor. -Nuremberg Trial., war crime. and International Law”.
International Conciliation. April 1949, No. 450, pp. 263-271, also
reprinted in Final Report to the Secretary of the Army on the
Nuremberg War crime. Trial, under control Council Law No. 10.
Brigadier General Telford Taylor (Wa.hington, DC., 1949).
pp. 145-158.
WAR TRIAL IN BANGLA DESH
member (General Nikicchenko) dissented from the acquittals
of Schacht, Papen, and Fritzsche. and from the refusal to
declare the ‘Reich Cabinet’ and the ‘General StalT criminal
organizations, and declared that Hess should have been
sentenced to death. All the sentences were confirmed by
the Allied Control Council for Germany; the death sentences
(except for the Goering suicide) were carried out and the
other convicted defendants were incarcerated in Berlin at
the Spandau jail.
Pursuant to the directive of the Control Council, the
defendants sentenced to imprisoment by the International
Military Tribunal were confined in Spandau Prison in Berlin
under quadripartite administration and supervision.
Von Neurath. Raeder. and Funk were released from
prison on medical grounds on November 6. 1954, September
26. 1955, and May 16. 1957. respectively. Von Neurath
died in 1956. Funk and Raeder died in 1960. Doenitz was
released on September 30, 1956, after serving his full sentence.
Speer and von Schirach were released on September 30,
1966, upon completion of their terms of imprisoment.
Subsequent Proceedings at Nuremberg
By Executive Order No. 9679 of January 16. 1946, Presi¬
dent Truman enlarged the powers conferred on the Represen¬
tative of the United States and its Chief of Counsel by
Executive Order No. 9547 of May 2, 1945 to include “au¬
thority to proceed before United States military or occupa¬
tion tribunals, in proper cases, against other Axis adherents,
including but not limited to cases against of groups and
organizations declared criminal” by the International Military
Tribunal at Nuremberg. The Representative and Chief of
Counsel was authorized to designate a Deputy Chief of
Counsel to whom might be assigned responsibility for
organizing and planning the prosecution of charges of atroci¬
ties and war crimes other than those then being prosecuted
MAJOR WAR TRIALS
in the International Military Tribunal, and for conducting
the prosecution of such charges. It was further provided
that upon vacation of office by the then Representative and
Chief of Counsel, his functions, duties, and powers should
be vested in a Chief of Counsel for War Crimes to be appoin¬
ted by the United States Military Governor for Germany.
Twelve trials under Control Council Law No. 10 before
the Tribunals set up in Nuremberg under Ordinance No. 7
were held during the years 1946-1948. They are often
referred to as “Nuremberg trials” or as the “subsequent
proceedings”, the latter phrases being used to distin¬
guish them from the trial of Goeringet a!, before the Inter¬
national Military Tribunal at Nuremberg. H
Trials of War Crimea by Military Tribunals of Other
Countries.
War crimes cases, other than those tried in the so-called
“subsequent proceedings,” were also tried in Germany by the
United States, a few being tried at first by Military Commis¬
sions. the balance being tried by specially appointed Military
Government Courts. These cases are sometimes referred to as
the “conventional war crimes cases” or the “non-Nuremberg
cases.” They were the responsibility of the “Theater Judge
Advocate”, later designated as the “Judge Advocate, Euro¬
pean Command.”
The Deputy Judge Advocate for War Crimes. European
Command, thus described the cases in question as follows:
“The trials involved all war crimes cases of compara¬
tive major importance other than those tried by the
International Military Tribunal. Nuremberg, and the
approximately 175 near high Nazis tried or being
tried by the subsequent proceedings in charge of the
Chief of Counsel for War Crimes at Nuremberg.
The offenses involved in the cases included the illegal
killing of surrendered American airmen by shooting
14. The trials and the judgments are summarized by Brigadier General
Taylor, Chirl of Counsel lor War Crimes, International Conciliation
TRIAL IN BANGLA
and beating at isolated and remote points, by planned
and instigated mobs in populated areas, and by parti¬
cipation in the execution of widespread common designs
to kill such airmen: olTenses near the battlefield includ¬
ing violations of the Red Cross Convention, the
Geneva (Prisoners of War) Convention, and the exe¬
cution of a common design contemplating the appli¬
cation of terrorism in warfare: operation of euthanasia
institutions: and the execution of common designs
contemplating the operation of concentration camps,
which operations included the subjection of inmates,
including American nationals to killings, bearings,
tortures, starvation and other abuses and indignities.
In one of the cases tried, a charge was included
which alleged that the accused were members of
organizations declared criminal by the International
Military Tribunal. Nuremberg, knowing that the orga
nitrations were being utilized in the commission of
criminal acts, or were personally implicated in the
commission of such criminal acts.
“‘Some of the more interesting cases tried were :
“Hadamar Murder Factory Case (United States v.
Klein, et al., opinion DJAWC, February 19-16. Case
No. 12-449). in which the accused were charged with
killing several hundred nationals of other United
Nations in the course of the operation of an eutha¬
nasia institution.
“Russelheim Case (United States v. Hartgen. et al.,
opinion DJAWC. September 1945. Case No. 12-1497).
involving the killing of several American airmen in a
populated area by a mob. Two of the victims of the
mob action, although thought to be dead, through an
act of Providence escaped from a wagon loaded with
ostensibly dead bodiea during a second air raid alert,
scaled the cemetary wall and survived to tell the
“Malmedy Massacre Case (United States v. Bersin,
et aL opinion DJAWC. October 1947. Case No. 6-24)
in which 73 members of Combat Group Peiper. a unit
specially organized from elements of 1st SS Panzer
(Adolf Hitler) Division, killed several hundred
surrendered American prisoners of war during the
Ardennes Offensive in December 1944. This was in
accordance with instructions given by Hitler during
a two-hour speech at Bad Nauheim to his highest
officers on the western front, including General
niK MAIOR WAR TRIALS
Dietrich. Commanding General of the Sixth SS Panzer
Armv and who was one of the accused, to prosecute
the counter offensive by applying such terrorism as to
spread fear and panic among the United States
“Superior Orders Case (United States v. Scroop.
et „f.. opinion DJAWC. September 1947. Case
No. 12—2000). involving the execution of a common
design to kill surrendered American airmen through¬
out Wehrkreis XII. The accused ranged from Lieu¬
tenant General Stroop. Higher SS and Police Leader
of Wehrkreis XII. down to and including the trigger
men in several incidents of such illegal killings.
“Ocher unusual cases include the Dachau. Mauthausen
Flossenburg. Buchenwald. and Nnrdhensen Concen¬
tration Camp Cases (United States v. Weiss, ef a/.,
opinion DJAWC. March 1945. Case No. 0′.)0-50-<; United States v. Altfuldisch. et of., opinion DJAWC. February 1947. Case No 000-50-5; United States v. Becker, et at., opinion DJAWC. May 1947. Case No. 000 50-46: United States v Waldeck. et at., opinion DJAWAC. November 1947. Case No. 000-50-9; and United States v. Andree. et at.. opinion DJAWC. April 194-t. Case No. 000-50-37. respectively). As a representative concentration camp case, the Buchenwald Case^ included as accused Higher SS and Police Leader. SS Lieutenant General Jo«ia« Prince :u Waldeck and 30 other accused, many of whom were principal members of the staff operat¬ ing Buchenwald and its scores of suhcamps. All con¬ ceivable forms of killings were utilized, including shoot¬ ing, hangings, injection, strangulation, beating, kicking, unnecessary surgical operation, starvation, medical 52 WAR TRIAL IN BANGLA DESH War crimes committed by Germans were also tried in German courts in the United States Zone. A report by United States Military Governor thus described the programme as follows : “The German administration of justice had tried criminals under the German Criminal Cud; for offenses similar to or idenrical with offenses tried by Military Tribunals at Nuremberg and Dachau. These cases concerned crimes committed by German nati¬ onals against other Germans, They included charges of murder, manslaughter, bodily injury, and breach of the peace committed in connection with National Socialist racial or political activities. Under the provisions of Military Government Law No. 2. German courts were authorized to try. in addition, cases concerning crimes committed by German nati¬ onals agains United Nations civilians prior to 8 May 1945. “In one case, 16 former Wehrmacht officers and members of the Werwolf (an organization created by the Nazi government shortly before the end of the war to organize civilian armed resistance against Allied forces in Germany) were charged with murder¬ ing a group of Penzberg (Bavaria) citizens on 28 April 1945. A lieutenant colonel of the Wehrmacht and the former commander of the Werwolf were sen¬ tenced to death. Two other defendants received sentences of life imprisonment. 5 were sentenced to imprisonment from 2 to 15 years, and 7 were acquitted. “Major trials included cases in which German civil¬ ians had been brought before Standgerichate (extra¬ ordinary courts) and executed for ‘peace demonstra¬ tions’ or hoisting white flags when American forces were approaching. In one such case a former presi¬ ding ]udge was tried and sentenced to four and one- hall years’ imprisonment, for having sentenced to death two persons, one of them a Catholic priest, for participation in a peace demonstration. This is the first case in which a former regular member of the German judiciary had been tried for participating in his official capacity in a Nazi crime. “In two cases, the Military Government Directors of Bavaria and Wuerttemberg-Baden set aside judgments because of flagiant violations of Military Government THE MAJOR WAR principles. One case concerned the conviction of three Germans who had participated in a pogrom which resulted in the death of a Jewish citizen. The case was retried in a German court, and heavier sen¬ tences were imposed. In the other case the Director of Wuerttemberg. Baden set aside a judgment of the Landgericht at Mannheim. It had tried three former German police officials who ordered and carried out the execution of three German civilians in April 1945. after they were found displaying a white flag just prior to the surrender of the city to American troops. The German court had sentenced the police officer orde¬ ring the execution to two years’ imprisonment and acquitted the other two. The judgment was set aside, not because of criticism of the sentences imposed, but because essential witnesses had not been heard during the trial. The case was retried in accordance with Military Government requests, the acquittals were affirmed, and the sentence against the police officer was increased to three years. “The Special Projects Division at Nuremberg, which was established in March 1947 to make war crimes evidence available to German and Allied authorities, had transferred 300 cases since the start of the opera¬ tions, 22 to German Ministries of Justice. 133 to German Ministries of Denazification, and 90 to Allied authori¬ ties. In order to facilitate its work, the Division established a complete cross-index file containing the names of all individuals who were mentioned in any documenr which had been processed either by the Office of Chief of Council for war Crimes COCCWC) or by the International Military Tribunal.”’* In Resolution 8 Cl) relating to refugees and displaced persons adopted on February 12,1946. the General Assembly of the United Nations stated that it considered that no action taken as a result of the resolution should “be of such a character as to interfere in any way with the surrender and punishment of war criminals, quislings and traitors, in con¬ formity with present or future international arrangements or agreements.” 16. 0|k« of Military Gooernmert l for Germany (U. S.), Legal and Judicial A fain. Report of the Military Governor, 1 September. 1947, 31 August 1948, pp. 11-12. WAF TRIAL IN BANGLA DESH On February 13. 194*. the General Assembly adopted Resolution 3 (I) recommending that members of the United Nations forthwith take all the necessary means to arrest “war criminals” and send them back to the countries where “their abominable deeds were done, in order that they may be judged and punished according to the laws of those countries.” The resolution also called on’ the goverments of States not mem¬ bers of the United Nations to take measures for the apprehen¬ sion of war criminals with a view to their removal to the countries where their crimes were committed for trial and punishment therein. In connection with a debate on refugees and displaced persons, the General Assembly on December 15, 1946 adopted Resolution 62(1), part II, recommending “to all Governments concerned that they take urgent and adequate measures to effect a careful screening of all displaced persons, refugees, prisoners of war and persons of similar status, with a view to identifying all war criminals, quislings and traitors.” A Yugoslav draft resolution (A/441) introduced at the second session of the General Assembly in 1947 on the subject of war criminals, traitors, and quislings, contained a state¬ ment of regret that certain governments were not carrying out tbelrecommendations of the General Assembly resolution of February 13. 1946. During the debate, charges were made that the United States and the United Kingdom were har¬ boring war criminals in their zones of occupation in Germany and Austria. The Yugoslav draft resolution was rejected by a vote of 40 to 7 with 6 abstention at the General Assembly meeting of October 31,1947.” On the same day the General Assembly adopted Resolution 170(11) recommending, infer alia , “Members of the United Nations which desire the sur¬ render of alleged war criminals or traitors (that is to say nationals of any State accused of having violated their 17. U.N. General Alterably. O&cial Records. Second Sejicn Vol. I K MAJOR WAR TRIALS 55 national law by treason or active collaboration with the enemy during the war) by other Members in whose jurisdiction they are believed to be, to request such surrender as soon as possible and to support their request with sufficient evidence to establish that a reasonably prima facie case exists as to identity and guilt.” Trials of persons alleged to have committed war crimes against United States nationals were held before United States Military Courts of Commissions in Austria. The programme was completed in November 1947. Fourteen cases were tried involving 52 persons, of whom 16 were acquitted. Upon review, 4 death sentences. 6 sentences of life imprisonment, and 26 sentences of terms of years at hard lal>our were con¬
firmed. The Mauthausen Concentration Camp case was
transferred from Austria to Headquarters. United States
Forces. European Theater, for trial because of limited United
States facilities and personnel in Austria.
In Italy. United States Military Tribunals tried 14 wsr
criminals in 9 cases. Eleven convictions were obtained and
seven death sentences were imposed.
Appraisal of the Nuremberg Judgment
The Nuremberg trial has had both champions and critics.
The former point out that it gave publicity to thousands of
documents discovered by the prosecution and over 17,000
pages of oral evidence and arguments of “great historic and
educational value in establishing the activities of the Naris
and the origins of the war.” 18 It established “important
precedents for the development of international law concern¬
ing the definition of certain crimes, particularly that of
aggressive war. and concerning the criminal liability of
individuals acting in the name of a state, under official orders,
or as members of criminal conspiracies or organizations.” 1 *
18 Quince Wright. “The U. of the Nuremberg Trial.” A J I.L, 41
56
TRIAL IN BANGLA DESH
Critics of Nuremberg trial fell into two classes, those who
objected to the decisions and sentences and those who
objected to the law applied in the trial. Critics of the first
category questioned the judgment of the Tribunal in weighing
the evidence and appraising the magnitude of offenses. Some
critics, including the Soviet judge, had expressed dissatisfac¬
tion that some of those found guilty on the charge of
conspiracy and aggressive war. “were not given death
sentences.”*
Critics from a legal point of view have contended that the
Tribunal had no jurisdiction in international law and that it
applied ex post facto law.’ 1 Related to these criticisms have
been the contention that morally the Nuremberg trial was
“unfair” because it was constituted by one side in a war.
It was a trial of the vanquished by the victors, and. therefore,
an act of political policy rather than a judicial proceeding*
Another criticism that is often voiced in a political context
is that the law of Nuremberg was retroactive law which was
made by the Allies for the specific purpose of prosecuting
the Axis leaders.* Thus the late Senator Taft expressed the
opinion that “the Nuremberg trials while clothed with forms
of justice…were in fact an instrument of government policy,
determined months before at Teheran and Yalta.”’*
Regardless of the criticism that were levelled against
the Nuremberg Trial, it is dear that the Nuremberg judg¬
ment made an important contribution in the development
of international criminal law. Following conclusions involving
substantive points of law of the judgment are worth men¬
tioning : In the first place one of the conclusions of the
20. Hid., p. 43.
21. See ibid., pp. 44-45.
22. Set Wilbourn E. Benton »nd Georg Grimm (erf.). Nuremberg:
German Pieter of the War Trials (Deller. 1961). pp. 74.105. etp rr-
99-103.
23. Sec Ibid., pp. 79 ff.
24. CiuotcJ in Robert K. Woetzel. The Nuremberg Tr ail m Inter.
THE MAJOR WAR TRIALS
57
Tribunal was thar international law was developing much
like common law. Secondly, individuals can also be subjects
of international law as well as states. Thirdly, crimes aginst
peace had a basis in international law. Finally, the Hague
Convention of 1907 was binding on signatories as well as
non-signatories since it was declaratory of general inter¬
national law.
It may thus be said that the Nuremberg judgment em¬
bodied tenets of the natural—law philosophy as it “affirmed
individual accountability and claimed to be speaking for a
rule of reason.”” However, the judgment was condemned
by the followers of the doctrine of legal posil ivism””
The legal pragmatisrs hailed Nuremberg judgment as “an
attempt to escape from rigid legalism and to supply a legal
code essential to mankind’s survival. It considered law as
an instrument for social engineering capable of creating order
and security in international relations.”‘”
The Nuremberg tribunal also provided “a unique opportu¬
nity to study sociological and psychological variables charac¬
teristics of the modem world.”” Among the most obvious and
important of these are stated as follows : the relation of
personality and power: man’s role in the hierarchical stmcture
of modem bureaucracy ; the dynamics of the totalitarian
state: the process of political decision-making; crowd
psychology : the effects of propaganda on cultural and ethical
norms ; and validity of psycho-analytical theories of national
character.”
25. William J. Bosch, Jud/ment an A ‘urembert: American Altitudes
Tou-ards the Moyer German War-Crime Trials (Chapel Hill. The
University of North Carolina Press. 1970). p. 235.
A. See ihuL.esp. Chap. VII. p. 130-144.
27. Ibtd.. p.235.
ihiii., Chap. 10. pp. 203.230.
WAR TRIAL IN BANGLA DESH
To psychiatrists war is “a prime sickness of man’s spirit
and refleas a basic disorder in political and economic rela¬
tions and in man’s psyche. Thus to psychologists the
Nuremberg judgment reflected men’s reactions to the judicial
process.”* 0 The judgment also was of particular interest for
sociologists. It provided a solution to unjust warfare which
must involve social controls.’ 1 The indictment of crimes
against humanity “essentially stated a social accusation in
a legal terms.’’”
The Tokyo Trial
On April 3,1946, the Far Eastern Commission sitting at
Washington adopted a general policy decision on the “Appre¬
hension. Trial and Punishment of War Criminals in the Far
East”
The Far Eastern Commission on June 12,1947, adopted
the following policy decision regarding the property of con¬
victed war criminals :
“1. The property of convicted war criminals should
be forfeited if so ordered by a tribunal. If not so
ordered, it should be returned to the owner or to
his legal heirs, unless it is subject to other occupation
policy directives of general application requiring
impounding, forfeiture, or restitution. The Far
Eastern Commission should recommend to member
governments that they inform the Supreme Comman¬
der for the Allied Powers of any sentences imposed
by their tribunals on convicted war criminals which
involve forfeiture of or levy upon such property
within his jurisdiaion. Upon receipt of such infor¬
mation, the Supreme Commander should cease the
property of persons so convicted to be forfeited
pursuant to the tribunal’s order.
“2. Such property forfeited or fines levied at the
direction of the Supreme Commander pursuant ro an
order of a tribunal should become available for
occupation costs.
IMTEF IN TOKYO. JAPAN
THE MAJOR WAR TRIALS 59
“3. The property taken under control by military
commanders of accused persons who have been
acquitted or who die before completion of trial
should be returned to the accused persons or the legal
heirs, as the case may be, provided that where it is
claimed that its acquisition was unlawful or inconsis¬
tent with occupation policy directives or where its
release to these persons would be inconsistent with
such directives, the acquittal or death should not
prevent its forfeiture or other treatment pursuant to
occupation policy directives.””
Prior to adoption of the policy decision of April 3,1946
the Supreme Commander for the Allied Powers in Japan
(SCAP) had issued a Proclamation on January 19.1946. estab¬
lishing an International Military Tribunal for the Far East.
On the same day. by General Order No. 1, he approved the
Chatter of the Tribunal, pursuant to which, on February 15,
1946. he appointed judges of the Tribunal.
After the Far Eastern Commission adopted its policy
decision of April 3. 1946. the Supreme Commander, on April
26. 1946, issued General Order No. 20 which specifically super¬
seded General Orders No. 1 and incorporated the require¬
ments of paragrah 5 (b) of the policy decision in regard to the
membership of international courts appointed by him which
differed from the provision as to membership set forth in
General Order No. 1.
The Charter of the Tribunal as contained in General
Order No. 20 of April 26, 1946. provided that the Tribunal
should consist of not less than 6 nor more than 11 members
appointed by the Supreme Commander for the Allied Powers
from the names submitted by the signatories to the Instrument
of Surrender. India, and the Commonwealth of the Philip¬
pines (Article 2). Article 3 related to the officers and the secre¬
tariat of the Tribunal, and Article 4 to convening, quorum,
voting, and absence. Article 5 and 6 read as follows :
“Article 5. Jurisdiction Over Persons and Offences.
The Tribunal shall have the power to try and punish
3 5 , Dcparrrccnt of State. Bulletin. No. 418. July 6. 1947, |.p. 35.36.
60
TRIALS IN BANGLA DESH
Far Eastern war criminals who as individuals or as
members of organizations are charged with offenses
which include Crimes against Peace. The following
acts, or any of them, are crimes coming within the juris¬
diction of the Tribunal for which there shall he
individual responsibility :
“a. Crimes against Peace : Namely, the planning, pre¬
paration. initiation or waging of n declared or
undeclaned war of aggression, or a war in violation of
international law. treaties, agreements or assurances,
or participation in a common plan or conspiracy ior
the accomplishment of any of the foregoing :
“b. Conventional War Crimes : Namely, violations of
the laws or customs of war :
“c. Crimes against Humanity : Namely, murder,
extermination, enslavement, deportation, and other
inhuman acts committed against any civilian popula¬
tion. before or during the war. or persecutions on poli¬
tical or racial 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. Leaders, organizers, insti¬
gators and accomplices participating in the formula¬
tion or execution of a common plan or conspiracy to
commit any of the foregoing crimes are responsible
for all acts performed by any person in execution of
such plan.
“Article 6. Responsibility of Accused Neither the
official position, at any time, of an accused, nor the
fact that an accused acted pursuant to order of his
government or of a superior shall, of itself, be sufficient
to free such accused from responsibility for any crime
with which be is charged, but such circumstances may
be considered in mitigation of punishment if the Tri¬
bunal determines that justice so requires.” 5 *
Article 8 provided for the designation by the Supreme
Commander for the Allied Powers of a Chief of Counsel to
investigate and prosecute charges against war criminals. Any
United Nation at war with Japan was empowered to appoint
an Associate Counsel to assist the Chief of Counsel. Articles
9 and 10 related to fair trial for the accused and Articles 11,
12. 1 j, 14, and 15 related to power of the Tribunal and con-
34. For the teit of the Chatter at amended, ace Trial of Japanese seat
Criminals (Dept, ol State Publication 2613, 19+6), p. 39
THE MAJOR WAR TRIALS 61
duct of the trial. Articles 16 and 17 pertained to the judg¬
ment and sentence. Article 17 provided, inter alia: “A sen-
rence will be carried out in accordance with the Order of
the Supreme Commander for the Allied Powers, who may at
any time reduce or otherwise alrer the sentence eicept to
increase its severity.”
An indictment against 28 major Japanese war criminals
was lodged with the International Military Tribunal for the
Far East on April 29. 1946, On May 3 and 4, the indict¬
ment was read in open court. The prosecution opened its
case on June 3. 1946. Closing arguments and summations of
prosecution and defence closed on April 6. 1948. The judg¬
ment of the Tribunal was delivered on November 4. through
12, 1948. During the course of the trial two of the accused.
Matsuoka and Nagano, died. The accused Okawa was de¬
clared unfit to stand trial and unable to defend himself, and
proceedings against him upon the indictment were according¬
ly suspended. None of the accused was acquitted on all
counts. Seven were sentenced to death (Dohihara, Hirota,
Ttagaki. Kimura. Matsui. Muto. and Tojo). Togo wss senten¬
ced to imprisonment for 20 years and Shigemitsu to imprison-
for 7 years. The remaining 16 were sentenced to life impri¬
sonment (Araki. Hashimoto. Hata. Hiranuma. Hoshino.
Kaya. Kido. Koiso. Minami, Oka, Oshima. Sato. Shimada.
Shiratori, Suzuki, and Umezu-)
The final judgment of the Tokyo Tribunal was lengthy,
covering over 1200 pages of text and some 300 pages of
appendices. It was a derailed account of all the events which
had been the subject of the voluminous evidence and of the
relations of the defendant to those events.
Of the eleven members of the Tribunal, eight fully
supported the judgment and the verdicts. Two of the eight,
the President and Justice Jaranilla, the members from the
Philippines, tiled short concurring opinions elucidating their
62 WAR TRIAL IN BANGLA DESH
views on specific problems. Justice Roling. the member from
the Netherlands, filed a separate opinion, concurring in part
and dissenting in part. He disagreed with certain inferences
drawn by the majority from some of the evidence, and dis¬
approved the verdicts and sentences against either of the
defendants, regarding some as excessive and some as in¬
adequate. Justice Pal. the member from India filed a dissenting
opinion as lengthy as the majority judgment. Justice Bernard,
the member from France, dissented for special reasons. Only
the majority judgment was read in open court and made part
of the transcript. The others were filed as part of the
official record. The holdings of these six documents and
their implications “are of the greatest importance to present
and future international law.”
The majority judgment made no specific reference to the
initial defense contention that since the member of the Tribu¬
nal were representatives of the nations which defeated Japan
they could not conduct a legal, fair and impartial trial. It
is observed :
“Its general holdings, however, make it clear that
the majority members did not deem the presence of
Judges from neutral nations a prerequisite to a fair
trial. Certain judges, moreover, formally expressed
their views on the subject. The Piesident grounded
his concurrence on the proposition that under inter¬
national law belligerents have the right 10 punish,
during a war. the war criminals that fall into their
hands and may require a defeated state to hand over
persons accused ot war crimes.” 54
The second attack on the validity of the proceedings
maintained that both the Charter and the Indictment violated
the provisions of the Potsdam Declaration and the Instru¬
ment of Surrender. The basic premise for this attack was
that the surrender of Japan, founded on its acceptance of
the Potsdam Declaration, was not unconditional: and that
since the Japanese Government and people had agreed only
36. Solii Horwit:. -, The Tokyo Trial.” International Conciliation.
No. 465. November 1950. rP- 475.584. at p. 543.
THE MAJOR WAR TRIALS 63
to obey directives in accord with the Potsdam Declaration,
they were not bound to obey if the Supreme Commander or
his deputies acted in excess of the authority conferred.
While it was true that the Potsdam Declaration provided
that stem justice should be meted out to all war criminals,
in July 1945 the only ‘war criminals’ known to the Japanese
were those who committed crimes against the laws and cus¬
toms of war. Neither the Japanese nor the world at large
had considered either crimes against peace or crimes against
humanity as war crimes. Japan’s acceptance of the Declara¬
tion was based on its understanding that the punishment for
war crimes would take place in accordance with the
commonly accepted understanding of the term. In so far as
the Charter purported to make crimes against peace and
against humanity war crimes, it was void. Furthermore,
the Potsdam Declaration had reference only to the Pacific
War. The wars against China and the activities against the
Soviet Union in 1938 and 1939 and against Thailand did not
fall within its purview.
The majority judgment, which does not appear to have
been contested by any of the judges on this point, overruled
the contention that crimes against peace and humanity were
not included within the purview of the Potsdam Declaration.
It held:
“There is no basis in fact for this argument. It has
been established to the satisfaction of the Tribunal
that before the signature of the Instrument of
Surrender the point in question had been considered
by the Japanese Government and the then members
of the Government, who advised the acceptance of
the terms of the Instrument of Surrender, anticipated
that those alleged to be responsible for the war would
be put on trial. As early as the 10th of August. 1955.
three weeks before rhe signing of the Instrument of
Surrender, the Emperor said to the accused Kido,
“I could not bear the sight…of those responsible for
the war being punished …but I think now is the time
to bear the unbearable.” 5 ‘
64 WAR TRIAL IN BANGLA DESH
However, this unanimity did not extend to the second
point that only crimes arising from the Pacific War could be
tried and punished. Though not specifically mentioned in the
judgment, the fact that certain defendants were found guilty
of waging aggressive war against the Soviet Union in 1936
and 1939. implies that this contention was over-ruled. 19
The defense argument on the Potsdam Declaration raised
directly the most important legal question which the Tribunal
had to resolve—whether aggressive warfare was a crime under
international penal law. The defense contention maintained
that war had not been and was not at the time of trial
a crime. The concept of war implied the legal right to
use force, and all regulatory provisions governing war were
meaningless if war was itself illegal. No court in the past had
ever tried such a crime and no punishment had ever been
provided. Insofar as the Charter attempted to make aggres¬
sive war a crime, it was ex post facto legislation and was
therefore void.
On this group of problems the Tribunal followed the
Nuremberg precedent. The Tokyo Chatter was not an arbitrary
exercise of power but was the expression of international law
existing at the time of its creation. Whether aggressive war
was a crime depended on the legal effect of the Pact of Paris,
The renunciation of war in that Pact necessarily involved the
proposition that war as an instrument of national policy was
illegal and that those who planned and waged it were commit¬
ting a crime in so doing. It was thus observed:
“Not all the judges were content to rest their conclu¬
sions upon the legal effect of the Pact of Paris. The
President, while accepting the majority view of the
Pact, assigned as a separate reason the emergence of a
customary international law and. although his position
is not too clearly enunciated, he also seemed to find a
basis for his conclusion in natural law. In his view
international law might be supplemented by rules of
justice and general principles of law. Rigid positivism
was no longer in accordance with international law
33. Soli* Horwitx, op. cit. p. 341
THE MAJOR WAR TRIALS 65
and the natural law of nations was equal in importance
to the positive or voluntary.”®
Justice Bernard rejected the Pact of Paris as the legal basis
for his argument, preferring to rest his concurrence squarely
on concepts of natural law.
“There is no doubt in my mind that such a war is and
always has been a crime in the eyes of reason and
universal conscience.—expressions of natural law upon
which an international tribunal can and must base
itself to judge the conduct of the accused tendered
The most interesting and novel view on this question was
expressed by Justice Rolmg. He could not find the legal
basis for the criminality of aggressive war in either the Pact
of Paris or in customary international law. In his opinion
crimes against peace were not regarded as true crimes before
the London Agreement. Nothwithstanding this, there was
amply basis in international law for trying the defendants
for crimes against peace. He held :
“Positive international law, as existing at this moment,
compels us to interpret the “crime against peace,” as
mentioned in the Charter, in a special way. It may
be presupposed that the Allied Nations did not intend
to create rules in violation of international law.
This indicates that the Charter should be interpreted
so that it is in accordance with international law.
“There is no doubt that powers victorious in a
“bellum justum,” and as such responsible for peace
and order thereafter, have, according to inter¬
national law the right to counteract elements cons¬
tituting a threat to that newly established order, and
ate entitled, as a means of preventing the recurrence
of gravely offensive conduct, to seek and retain the
custody of the pertinent persons.
“Mere political action, based on the responsibility of
power, could have achieved this aim. That the
judicial way is chosen to select those who were in
fact the planners, instigators and wagers of Japanese
aggression is a novelty which cannot be regarded as
a violation of international law in that it affords the
39. Ibid, p. M6.
40. Diuenting Judgment. IMT for ifu Far Fail, Nov. 12. 1948. p. 10.
66
TRIAL IN BANGLA
vanquished more guarantees than mere political action
could do.
“Crime in international law is applied to concepts
with dilTerent meanings. Apart from those indicated
above, it can also indicate acts comparable to politi¬
cal crimes in domestic law. where the decisive element
is the danger rather than the guilt, where the criminal
is considered an enemy rather than a villain, and where
the punishment emphasizes the political measures
rather than judicial retribution.
“In this sense should be understood the “crime
against peace” referred to in the Charter. In this
sense the crime against peace, as formulated in she
Charter, is in accordance with international law.” 11
Justice Pal rejected all the theories advanced to support
the thesis that aggressive war was a crime. In his judgment :
“…no category of war became a crime in international
life up to the date of commencement of the world
war under our consideration. Any distinction bet¬
ween just and unjust war remained only in the theory
of the international legal philosophers. The Pact of
Paris did not affect the character of war and failed to
introduce any criminal responsibility in respect of any
category of war in international life…War itself, as
before, remained outside the province of law, its
conduct only having been brought under legal regula¬
tions. No customary law developed so as to make
any war a crime. International community itself
was not based on a footing which would justify
the introduction of the conception of criminality
in international life.”‘ 1
Inasmuch as the majority had found that aggressive war
bad been an international crime at the time the acts bad been
committed, there was no real need for them to consider the
ex post facto doctrine. They nevertheless considered the
matter. Here again they followed Nuremberg by adopting its
language on the point; and held that the principle of nullem
crimen sine lege was not a limitation of sovereignty denying
TUP MAJOR WAR TRIALS 67
power to try ex post facto aggressor it would be unjust if he
were allowed to go unpunished.
Justice Roling regarded the maxim as neither “a principle of
sovereignty nor a principle of justice. It was a rule of policy,
valid onlv if expressly adopted, to protect citizens against
arbitrary courts and legislators. It did not involve the ques¬
tion of whether a certain act was criminally wrong at the
moment it was committed but only whether the act was or
was not forbidden under penalty. As such, the prohibition
against such retroactive legislation was an expression of poli¬
tical wisdom not necessarily applicable in present international
relations. It was not the task nor within the power of the
Tribunal to judge the wisdom of any particular policy.” 0
Justice Jaranilla considered the maxim, regardless of its
nature, to be inapplicable, although he also subscribed to the
majority judgment. He agreed with those writers who held
that the ex post facto rule was not applicable to international
law. In any event Japan’s acts had been strongly protested
and warnings had been issued. The leaders knew that in the
case of defeat they would be brought to justice. This position
had been made clear by the Allied Powers and Japan and its
leaders had accepted their terms. 4 ‘
The majority judgment did not regard the lack of a com-
prehensive definition of a war of aggression as militating
against its holding that a war of aggression was a crime. It
was clear that insofar as Japan’s actions were concerned,
“They were unprovoked attacks, prompted by the
desire to seize the possessions of those nations. What¬
ever may be the difficulty of stating a comprehensive
definition of a “war of aggression.” attacks made with
the above motive cannot but be characterized as wars
of aggression,”**
R ‘ling Ju’ffmcnr, IMT for the For Fan. op. cit. pp. 4 1.45.
44. MrmoranJum to the General Stcrewr* of IMT for tSe Far East fr
Justice Jaranilla (the Ph : IHpine*) So*. 12,1948. pp. 17-18.
45. CiteJ in $oli$ Horwitr, op. cit.. p. 549
68
WAR TRIAL IN BANG LA DESH
Justice Pal, on the other hand, regarded the views of the
other judges as much too simple. He pointed out the difficul¬
ties that had surrounded the numerous attempts to formulate
a satisfactory definition of aggressive warfare. Even if he
accepted the detinition that a war without justification was a
war of aggression, numerous important problems would have
to be resolved.
Another principal contention which the Tribunal was
called upon to resolve was that there was no individual respon¬
sibility for aggressive warfare. The defense maintained that
war was the act of a nation, not of individuals. International
law dealt with the relationships between states and did not
refer to individuals.
The majority judgment rejected this contention. Once
again it chose to adopt the language of the Nuremberg
Tribunal, and held that ‘the principle of international law
which under certain circumstances protects the representatives
of a state cannot be applied to acts which are condemned as
criminal by international law.’
The Tribunal’s conclusion was satisfactory to neither the
prosecution nor the defense. It declined to pass upon the
validity of these novel charges, and held :
“If. in any case, the finding be thac the war was not
unlawful, then the charge of murder will fall with the
charge of waging unlawful war. If, on the other hand,
the war. in any particular case, is held to have been
unlawful then this involves unlawful killings not only
upen the dates and at the places stated in these counts
but at all places in the theater of war and at all times
throughout the period of the war. No good purpose
is to be served, in cur view, in dealing with these parts
of the offences by way of counts for murder when the
whole ollense of waging those wars unlawfully is put
in issue upon the counts charging the waging of such
“For these reasons only and without finding it
necessary to express any opinion upon the validity of
the charges of murder in such circumstances we have
THE MVJDR WAR TRIALS
decided that it is unnecessary to determine Counts
39 to 43 inclusive and Counts 45 to 52 inclusive.”**
Justice Jarnilla, although a member of the majority,
dissented on this point. He felt not only that the Tribunal
should have passed upon the murder charges but that it
should have sustained their validity.
Jusrice Pal arrived at a diametrically opposite result from
Justice Jaranilla. For his purposes he divided the charges into
two groups : those involving killing arising from attacks on
allied territory and those involving the slaughter of inhabi¬
tants in occupied territories. As to the first group, since
war had neither legality nor illegality, killing was not
murder. As to the second group, he agreed that they were
covered by the more comprehensive counts 54 to 55,
Further, the Tribunal’s view of conspiracy to wage
aggressive war differed substantially from that of the
Nuremberg Tribunal. The latter Tribunal had distinguished
between a conspiracy to plan, prepare and wage an aggres¬
sive war and its planning and preparing. The Tokyo
Tribunal made no such distinction, but held :
“A conspiracy to wage aggressive or unlawful war
arises when two or more persons enter into an agree¬
ment to commit that crime. Thereafter. in
furtherance of the conspiracy, follows planning and
preparing for such war. Those who participate ( at
this stage may be either original conspirators or la er
adherents. If the latter adopt the purpose of the
conspiracy and plan and prepare for its fulfilment
they become conspirators. For this reason, as all
the accused are charged with the conspiracies, we
do not consider ic necessary in respect of those we
may find guilty of conspiracy to enter convictions
also for planning and preparing. In other words,
although we do not question the validity of the
charges we do not think it necessary in respect of
any defendants who may be found guilty of conspiracy
to take into consideration not to enter convictions
upon counts 6 to 17 inclusive”. 1 ’
46. Judgment of the IMT for the Far Eau. No v. 4.12. 1948. r p. 36.37.
47. Ibid. pp. 32.33.
70 WAR TRIAL IN BANGLA DKSH
Justice Jaranilia dissented from the majority holding to
the extent that it completely identified ‘planning and pre¬
paring’ with the conspiracy 41 Justice Bernard considered
‘planning ar.d preparing’ more serious charges than conspi¬
racy and that the Tribunal should therefore have considered
them. 4 * The President and Justice Pal held that conspiracy
was nor a crime under international law. The President
stated :
“It may well be that a naked conspiracy to have
recourse to war or to commit a conventional war
crime or crime against humanity should be a crime,
but this Tribunal is not to determine what ought to
be but what is the law. Where a crime is created
by International Law. this Tribunal may apply a
rule of universal application to determine the range
of criminal responsibility : but it has no authority
to create a crime of naked conspiracy based on the
Anglo-American concepts : nor on wbat it perceives
to be a common feature of the crime of conspiracy
under the various national laws The national laws
of many countries may treat as a crime naked
conspiracy affecting the security of the state, but it
would he nothing short of judicial legislation for
this Trihunal to declare that there is a crime of
naked conspiracy for the safety of the international
order.
“Article V of the Charter declares participation in
a common plan or conspiracy a means of committing
a crime against peace, and states that ‘leaders,
organizers, instigators and accomplices’ participating
in the formulation or execution of such plan or
conspiracy, are responsible for the acts performed
by any person in execution of the plan. This is in
accordance with a universal rule of criminal res¬
ponsibility ; when the substantive crime has keen
committed, leaders, organizers., instigators and
accomplices are liable everywhere.” 40
Justice Pal’s position followed naturally from his con¬
clusion that rbe substantive offense of aggressive war was not a
48. Jaramila Memorandum, op. cii.. pp. 7.9.
49. Bernard Dieienting Judgement, op. cil., p-5.
50. Opinion of Sir William Flood Webb, President ol the IMTFE, Not.
1.19t8. op. cii . pp. 8-9.
THE MAJOR WAR TRIALS
71
crime ; but be also came to an independent conclusion that
conspiracy by itself was not yet a crime in international life. 11
Throughtout the course of the proceedings particular
stress had been laid by the prosecution of the initiation and
murder counts growing out of the attacks without warning
at Pearl Harbor and in the British possessions. Much evi¬
dence had been introduced to show how the leaders of Japan
had maneuvered to avoid the requirements of Hague
Convention III for previous and explicit warning before
opening hostilities. Despite its holdings that the initiation
and murder counts need not be separately collide red. the
Tribunal deemed the matter worthy of a special pronounce-
“Hague Convention III :
undoubtedly imposes the obligation of giving pre¬
vious and explicit warning before hostilities are
commenced, but it does not define the period which
must be allowed between the giving of this warning
and the commencement of hostilities. The position
was before the framers of the Convention and has
been the subject of controversy among international
lawyers ever since the Convention was made. This
matter of the duration of the period between warning
and hostilities is of course vital If that period is
not sufficient to allow of the transmission of the
warning to armed forces in outlying territories and
to permit them to put themselves in a state of defence
they may be shot down without a chance to defend
themselves. It was the existence of this controversy
as to the exact extent of the obligation imposed by
the Convention which opened the way for Togo to
advise…that various opinions were held as to the
period of warning which was obligatory….In short,
they decided to give notice that negotiations were
broken off at so short an interval before they
commenced hostilities as to ensure that rhe armed
forces of Britain and the United States at the points
of uttack could not be warned that negotiations were
broken off….
“We have thought it right to pronounce the above
findings in fact for these matters have been the sub-
si. Ju>:icc Pal judgment, op. CH., pp
?. 930.1
72
TRIAL IN BANGLA DESH
ject of much evidence and argument but mainly in
order to draw pointed attention to the defects of the
Convention as framed. It permits of a narrow con¬
struction and tempts the unprincipled to tty to
comply with the obligation thus narrowly construed
while at the same time ensuring that their attacks
shall come as a surprise. With the margin thus
reduced for the purpose of surprise no allowance
can be mode for error, mishap or negligence leading
to delay in the delivery of the warning, and the possi¬
bility is high that the prior warning which the
Convention makes obligatory will not in fact be
given.” 6 *
The Tribunal further held that “In a matter of criminal
liability whether domestic or international it would be against
the public interests for any tribunal to countenance condona¬
tion of crime either expressly or by implication ” u
The Tribunal also rejected the defense contention and
expressly adopted the ruling of the Supreme Court of the
United States in the Yamashita case that the provisions of
Geneva Convention applied only to judicial proceedings
directed against a prisoner of war, for offenses committed
while a prisoner of war, and did not deal with any other
types of offenses. 64
More than one thousand pages of the judgment were
devoted to findings on issues of fact. This portion of the
judgment was divided into hve patts. The first part dealt
with the military domination of Japan and preparation for
war. The second, third and fourth patts dealt respectively
with Japanese aggression against China and the U.S.S.R. and
the Pacific War. The atrocities were covered in the fifth
The Tribunal concluded that a conspiracy to wage wan
of aggression for the purpose of domination of East Asia, the
32. Judiment of IMTFE, op., cil. pp. 996-939.
53. Ibid.. p. 841.
54. Ibid., pp. 27.28.
THE MAJOR WAR TRIALS
73
western and south western Pacific Ocean and the Indian
Ocean, and certain of the islands in those oceans as charged
in count 1 of the Indictment had been established.”
The Tribunal also concluded that the evidence had estab¬
lished that Japan had waged aggressive wars against China,
the British Commonwealth of Nations, France. The Nether¬
lands, the USSR and the United States.” With respect to
China the Tribunal found :
“The war which Japan waged against China, and
which the Japanese leaders falsely described as the
“China Incident” or the “China Affair,” began on the
night of 18 September 1931 and ended with the sur¬
render of Japan in Tokyo Bay on 2 September 1945.
The first phase of this war consisted of the invasion,
occupation and consolidation by Japan of that part of
China known as Manchuria, and of the province of
Jehol. The second phase of this war began on 7 July
1937. when Japanese troops attacked the walled city
of Wanping near Peiping following the “Macro Polo
Bridge Incident.” and consisted of successive advances,
each followed by the brief periods of consolidation
in preparation for further advances into Chinese
territory.” 47
Turning to the wars against the western powers, the
Tribunal categorically rejected the defense contention that
these wars had been fought in self-defense. It held :
“It remains to consider the contention advanced on
behalf of the defendants that Japan’s acts of aggression
against France, her attack against the Netherlands, and
her attacks on Great Britain and the United States of
America were justifiable measures to restrict the
economy of Japan that she had no way of preserving
the welfare and prosperity of her nationab but to go
“The Measures which were raken by these Powers to
restrict Japanese trade were taken in an entirely
justifiable attempt to induce Japan to depart from a
course of aggression on which she had long been
55. /kid., pp. 1118-11-12.
56. /bid,, p. 1143,
57. /bid, p.521.
74 WAR TRIAL IN BANGLA DESH
embarked and upon which she had determined to con¬
tinue. Thus the United States of America gave notice
to terminate the Treat; of Commerce and Navigation
with Japan on 26th July 1939 after Japan had seized
Manchuria and a large part of the rest of China and
when the existence of the treaty had long ceased to
induce Japan to respect the rights and interests of the
nationals of the United States in China. It was given
in order that some other means might be tried to
induce Japan to respect these rights. Thereafter the
successive embargoes which were imposed on the
export of materials to Japan were impcsed as it became
clearer and clearer that Japan bad determined to
attack the territories and interests of the Powers.
They were imposed in an attempt to induce Japan to
depart from the aggressive policy on which she had
determined and in order that the Powers might no
longer supply Japan with the materials to wage war
upon them. In some cases, as for example in the case
of the embargo on the export of oil from the United
States of America to Japan, these measures were also
taken in order to build up the supplies which were
needed by the nations who were resisting the aggres¬
sors. The argument is indeed merely a repetition of
Japanese propaganda issued at the time she was pre¬
paring for her wars of aggression. It is not easy to
have patience with its lengthy repetition at this date
when documents are at length available which demons¬
trate that Japan’s decision to expand to the North to
the West and to the South at the expense of her
neighbours was taken long before any economic
measures were directed against her and was never
departed from. The evidence clearly establishes con¬
trary to the contention of the defense that the acrs of
aggression against France, and the attacks on Britain,
the United States of America and the Netherlands
were prompted by the desire to deprive China of any
aid in the struggle she was waging against Japan’s
aggression and to secure for Japan the possessions of
her neighbours in the South.” 13
The Tribunal did not deem it important to consider
whether Japan’s activities against France in 1940 ind 1941 con¬
stituted the waging of a war of aggression in view of its finding
that such a war was waged in 1945 upon the refusal of the
53. Ibid, pp- 990-992.
MAJOR
TRIALS
75
Governor of Indo-China to accept new Japanese demands. 1 * It
also deemed unimportant the fact that the Netherlands had
taken initiative in declaring war on Japan : The Tribunal held:
“The facts are that Japan had long planned to secure
for herself a dominant position in the economy’
of the Netherlands East Indies by negotiation or by
force of arms if negotiation failed. By the middle of
19-11 it was apparent that the Netherlands would not
yield to the Japanese demands. The leaders of Japan
then planned and completed all the preparations for
invading and seizing the Netherlands East Indies.
The order of Imperial General Headquarters was
issued on 10th November and it fixed 8th December
(Tokyo Time). 7th December (Washington time) as
the date on which a state of war would exist and
operations would commence according to the plan.
In the very first stage of the operations so to be
commenced it is stated that the Southern Area Force
will annihilate enemy fleets in the Philippines. British
Malaya and the Netherlands East Indies area. There
is no evidence that the above order was ever recalled
or altered in respect to the above particulars In these
circumstances we find in fact that orders declaring the
existence of a state of war and for the execution
of a war of aggression by Japan against the
Netherlands were in effect from the early morning of
7th December 1941. The fact that the Netherlands,
being fully apprised of the imminence of the attack,
in self-defence declared war against Japan on 8th
December and thus officially recognized the existence
of a state of war which had been begun by Japan cannot
change that war from a war of aggression on the part
of Japan into something other than that.”* 0
The Tribunal’s summary and analysis of the voluminous
oral and documentary evidence of atrocities committed
during the prosecution of Japan’s wars culminated in its
“The evidence relating to atrocities and other Con¬
ventional War Crimes presented before the Tribunal
establishes that from the opening of the war in China
until the surrender of Japan in August 1945 torture.
76
WAR TRIAL IN BANGLA DESH
murder, rape and other cruelties of the most inhuman
and barbarous character were freely practiced by
the Japanese Army and Navy. During a period of
several months che Tribunal heard evidence, orally or
by affidavit, from witnesses who testified in detail to
atrocities commitred in all theatres of war on a scale
so vast, yet following so common a patrern in the
atrocities were either secretly ordered or wilfully
permitted by the Japanese Government or individual
members thereof and by the leaders of the armed
A somewhat different version of the facts with respect to
crimes against peace was taken by Justice Roling. His con*
“There existed in Japan a group which, in a peaceful
way, was striving for a prosperous Japan, a Japan
which would virtually dominate East Asia. On the
other hand, there existed a group which aimed at the
expansion of Japan by means of force. Ample
evidence has been brought in this case to show that
there eiisted in Japan a military clique which was
eager and determined to solve political and economic
problems by force of arms. This tendency gathered
strength as the policy of peaceful expansion gradually
seemed to become frustrated by foreign immigration
laws and by the world depression which led to tariff
barriers and regional agreements. The decisive ques¬
tion in this trial is to determine how the relationship
of the two different concepts, of expansion by means
short of war, and of expansion by force of arms,
developed.
“In studying this development, a rough division into
three periods can be made.
“The first period is characterized by a struggle in
which the military clique attempted to achieve its
aims by threats and assassinations at home, and by
independent action abroad. This period approxi¬
mately covers the years between 1928 and 193b
although independent action was still maintained in
later years during the Marco Polo Bridge, the
Nomonhan and the Lake Khassan incidents.
“The period of struggle was followed by one of
collaboration, in which the two factions came to an
61. Ibid., p. 1001.
the major war trials 77
agreement with regard to the object to be achieved—
the domination of East Asia. Even in this, however,
they remained opposed with regard to the methods
whereby this object was to be achieved. This period
runs from approximately the February 26 incident in
1936. when several pacifists were murdered, to the
decision of the Liaison Conference of September 19,
1910. although perhaps a change in official policy
can be distinguished earlier during the Hiranuma
Cubinet.
“The next and final period starts with the Liaison
Conference of Septemper 19. 1940, during which the
use of armed force was accepted as government
policy, first as an alternative in case other methods
failed, later as straiglic forward policy.” 6 *
Justice Pal disagreed with all the findings of the Tribunal.
His conclusion was that no conspiracy had been proved. He
made a detailed examination of each important item of
evidence to determine whether the sole inference he could
draw therefrom was one of conspiracy. In so doing, contrary
to the majority, lie placed great reliance upon the testimony
of defense witnesses. He questioned the reliability of some
of the prosecution witnesses ; anJ gave little weight to some
of its documents. 6 *
Furthermore. Justice Pal felt it necessary to take into
consideration materials not in evidence and factors which the
other judges regarded as irrelevant. Thus, in order ‘to see
the events by putting them in their proper perspective’ he
examined them in light of ‘the Britano-centric world order,
the diplomatic maneuvers at Washington, the development
of Communism and the world opinion of Soviet policy, the
internal condition of China, the China policy and practice
of other nations and the internal condition of Japan from
time to time.” 64
62. Roling Judgment, or. cil.i pp. 61.64.
63. Solis Heroin or ciu p. 562.
64 /kid., pp. 562.563,
79 WAR TRIAL IN BANGLA DESH
Realizing that his approach to the evidence might be
subject to the criticism that it was piecemeal and overlooked
the overall design. Justice Pal concluded:
“It may be contended that although each event may
thus be explained away, they all taken together can
best be explained only by the existence of such an
over-all conspiracy, design or plan.
“Even if we are (sic) to find out any single cause,
we are not necessarily driven ro the allefed conspi¬
racy. Even when several nations from themselves
into a group, and adopt a particular policy against
any particular ideology prevailing somewhere in the
international society, we do not characterize this as
a conspiracy. Whatever that be, circumstances
certainly developed in such a way during the relevant
period, as to lead Japan to adopt certain policies in
her foreign relations, which as a matter of fact she
did adopt from time to time.
“I would again emphasize here that it is immaterial
for our present purpose to see whether sny policy
adopted at any particular time, or. action taken by
Japan pursuant to that policy, was justifiable in law:
perhaps it was not. All that we are concerned with
here is to see if the circumstances can explain the
adoption of the policy or the action without the
existence of the alleged conspiracy.””
Having completed his consideration of the conspiracy
counts. Justice Pal found that his view of the law made it
unnecessary to consider whether any of the wars against any
of the nations covered by the indictment was aggressive.
Justice l’al regarded “conventional war crimes as coming
within the competence of the Tribunal but in his opinion,
the charges for the commission of these crimes has not been
established. Even though the evidence was ‘still over¬
whelming that atrocities were perpetrated by the members
of the Japanese armed forces against the civilian population
of some of the territories occupied by them as also against
the prisoners of war.’ he could not find that any of the
accused had been responsible either by way of commis-.ir>n
or omission for anv of the acts.”**
65 Rolinf Ju.Igurnt. op. ril.. P? W 933.
66. Solis Horwicz, op. oil., p. 561.
THE MAJOR WAR TRIALS
79
Justice Bernard likewise disagreed with the majority. His
views were ‘ based not on the evidence but on certain methods
of procedure which he believed vitiated the trial. In his
opinion, there had been three major defects which compelled
his holding. The first was that the defendants has been
prejudiced by the fact that they had not been given the
opportunity to endeavour to obtain and assemble elements
for the defence by means of a preliminary inquest conducted
equally in favour of the prosecution as of the defense by a
magistrate independent of them both, and in the course of
which they would have been benefited by the assistance of
the defence counsel.”* 1
Justice Bernard’s second objection was likewise based on
French legal practice. In his view a judgment could be
arrived at only after ‘oral deliberations outside of all
influence, bearing upon all produced evidence, among all the
judges who sat at the trials.’ This principle, he felt, had been
violated in several particulars. Aside from the deliberations
on the individual verdicts, the deliberations on the findings
had not been oral, but had been initially drawn up by a draft¬
ing committee and submitted for concurrence modification
and review to all of the members of the trial. He also felt
that this principle had been violated by the use by the majo¬
rity of outside assistance in making their findings. He com¬
plained that several of the judges had availed themselves of
the assistance of their confidential legal secretaries in the
preparation of their work. Under French law, judges do
not have such assistants. However in the Anglo-American
system, the use by judges of legal secretaries is not an un¬
common practice.”**
His third objection was based on the fact that the prose¬
cution had not indicted the Emperor who “the trial revealed
could have been counted among the suspects and whose
absence from the trial… was certainly detrimental to the
defense of the accused’’.**
AT. /Aid.i p. 5A5.
80 WAR TRIAL IN BANGLA DESH
Upon the basis of its findings the Tokyo Tribunal found
all defendants except Matsui and Shigemitsu guilty of con¬
spiracy towage aggressive war, and all except Matsui, Oshima
and Shiratori guilty of having waged aggressive war against
China. All defendants except Araki. Hashimoto. Hirota,
Matsui, Minami. Oshima and Shiratori were found guilty of
waging aggressive war against the United States, the British
Commonwealth of Nations and the Netherlands. Shigemitsu
and Tajo were alone found guilty of waging aggressive war
against France. Dohihara and Itagaki were found guilty of
waging war against the Soviet Union at Lake Khassan, and
the same persons and Hiranuma were found guilty of waging
aggressive war against the Soviet Union at Nomonhan. Dohi¬
hara. Itagaki, Kimura, Muto and Tajo were found guilty of
ordering, authorizing, and permitting violations of the laws
of war. while Hata, Hirota, Kimura. Koiso. Matsui. Muto.
and Shigemitsu were found guilty of deliberately and reck¬
lessly disregarding their legal duty to take adequate steps to
secure the observance and prevent breaches of the laws of
war.’ 0
At the conclusion of the reading of its judgment, the
Tribunal sentenced Dohihara, Hirota. Itagaki. Kimura. Matsui
Muto and Tajo to death by hanging. All but two of the
remaining defendants received a life sentence. A sentence of
seven years was imposed on Shigemitsu and one of twenty
years on Togo, both sentences to run from 3 May 1946. ,,
Justice Roling concurred in all the death sentences except
that of Hirota and would have also imposed the supreme
penalty upon Oka. Sato and Shin^da.” Justice Jaranilla.
without specifying those to which he referred, considered a
few of the sentences “too lenient, not exemplary and deter¬
rent and not commensurate with the gravity of the offenses
committed.””
70. See Appendix ’D’
71. Solis Hoiwiti. op. at., p. 572
72. Ihid.
73. im.
THE MAJOR WAR TRIALS
81
The Tribunal judgment was silent as to the factors con¬
sidered in determining sentences. Only two of the judges
addressed themselves directly to this problem. Justice Roling
believed that so long as the dominant principle in the crime
against peace is the dangerous character of the individual
committing the crime, punishment should be determined solely
on consideration of security and that capital punishment
should not be given to those found guilty only of crime
against peace.'” The President pointed out that at Nurem¬
berg, despite the Tribunal finding that the initiation of a
aggression was the supreme international crime, no one who
was found guilty only of crimes against peace received the
death penalty.” In his opinion, “the Japanese accused should
not be treated with less consideration than the Germans, and
no one should be sentenced to death for crimes against peace.
Whether either of these views were the motivating forces
for the Tribunal’s action, it is significant to note that the
defendants sentenced to death had all been convicted of con¬
ventional war crimes.” 7 ‘’
Immediately upon the pronouncement of the sentences
ten days were granted to the defendants to appeal to the
Supreme Commander from their convictions. On 24 Novem¬
ber 1948. General MacArthur. after having consulted with
the diplomatic representatives in Japan from each of the
n tions represented on the Far Eastern Commission, confirmed
the convictions, and directed the sentences to be executed.
Execution of the death sentences was deferred pending a
decision of the Supreme Court of the United States. Immedi¬
ately upon the confirmation of the sentences Hirota, Dobihara,
Kido. Oka, Shimada and Togo filed motions for leave to file
petitions for writs of habeas corpus in the Supreme Court.
After arguments, all motions were dismissed lor want of
jurisdiction. The last avenue of appeal was closed, and a
74. Hid., p. 573
75. Hid.,
If,. Praidcnt’i Opinion n IMTFE. op. cit.. pp. 1417.
82
WAR TRIAL IN BANGLA DESH
few days after the Supreme Court had announced its action,
the death sentences imposed by the Tribunal were carried
The Legal Section of General Headquarters, SCAP.
announced on December 24, 1948. that all of the former
Class “A” war crimes suspects then being held in Sugamo or
under house arrest and not presently on trial were being
released from custody. It was explained that they had been
originally arrested for possible trial as major war criminals
before the International Military Tribunal for the Far East
(the IMTFE) or a similar court, but that when it was deter¬
mined that they would not be tried on “A” (aggressive war)
charges SCAP direcred the Legal Section to investigate the
cases to ascertain whether indictments would lie for “B” or
“C” charges (violation of the laws and customs of war or
crimes against humanity). Final decision in the matter, it was
explained further, was impossible until the IMTFE judgment
and verdict was available tor study and application. After a
thorough consideration, it was stated, the determination had
been made not to initiate any additional trials. The announce¬
ment concluded that the Tojo trial (before the IMTFE),
the Toyoda aud Tamura trials and the release from custody
of the other Class “A” war crimes suspects “completes the
disposition of all former major war crimes suspects in
Japan.””
Japanese war crimes suspects were classified as “A,”
“B”. and “C” suspects, these designations referring to the
categories of crimes described in paragraph 1 of the Far
Eastern Policy Decision of April 3, 1946 : “A” to aggressive
war charges, “B” to conventional war crimes (violations of
the laws of war), and “C” to atrocities commonly referred to
as “crimes against humanity.” The only trial of A” charges
was that before the International Military Tribunal for the
Far East.’*
77. Whiteman, Vigen of In lernmion
78. Itr.d., p. 999.
nal Lav. Vul. 11 (1963). p. 993.
THE MAJOR WAR TRIALS
The great majority of the war crimes trials conducted in
Japan on “B” and “C” charges were tried before United
States Eighth Arm; military commissions in Yokohama.
Certain other trials of such charges were ccnducted until
May 1947 by U.S. Array Commissions in Manila. There¬
after. Japanese nationals tried for war crimes in the Philippines
appeared before Philippine Government tribunals.’*
On October 27, 1948. General Headquarters. SCAP. by
General Orders No. 13, “pursuant to authority contained
in joint Chiefs of Staff directive, dated 23 April 1946″
(implementing the Far Eastern Commission policy decision
of April 3. 1945) established “Military Tribunals…to meet
in Tokyo. Honshu, Japan for the trial of such persons as
may be properly brought before them.” On the same day
rules and regulations were issued to ‘ govern the trials of
persons who are accused as war criminals and brought before
tribunals appointed by the Supreme Commander for the
Allied Powers.” (AG. 000.5 (24 Oct. 48) LS). These regula¬
tions provided, infer alia, that where “offenses involve
nationals of more than one nation, each such nation, in the
discretion of the convening authority, may be represented on
the tribunal.” 80
Two Tribunals were appointed by Special Order No. 1.
on October 27. 1948, pursuant to General Order 13, the one.
composed of United States Army officers with an Australian
Army officer as President; the other, composed of United
States Army officers and two civilian members, one a United
States national, the other a Chinese national. Former Admiral
Soemu Toyoda Commander in Chief of the Japanese Com¬
bined Fleet from May 1944 to May 1945, and ex-Lieutenant
General Hiroshi Tamura. Director of the Japanese Prisoner
of War Management Bureau and of the Prisoner of War
Information Bureau, both former Class “A” suspects were
79. ltd.. ?. 10Q3.
WAR TRIAL IN BANGLA DESH
arraigned before the two Tribunals, respectively, on “B” and
“C” charges. A press release issued on October 27,1948.
by the Public Information Office, General Headquarters,
SCAP. described the trials as “the first war crimes trials on
a General Headquarters level” and pointed out that “the
GHQ Commission appointed to hear the Tamura case will
be the first in Japin to contain civilians.” 81
Hiroshi Tamura was found guilty on February 23, 1949.
According to a press release issued by General Headquarters,
SCAP, on the same day. the Tribunal “decided that while
Tamura did not order any mistreatment or tortures, he failed
in his command responsibilities by permitting men under him
to continue maltreating prisoners after he became Chief,
POW executive. He also was held responsible for allowing
prisoners to be quartered near military objectives and to do
work which was unhealthy and dangerous.” Tamura was
sentenced to 8 years at hard labour. Upon review by SCAP,
sentence was approved. 88
On March 31.1949, the Far Eastern Commission made
the following recommendations to member governments of
the Commission:
“If possible, investigations in connection with offenses
falling under paragraph 1 (b) and 1 (c) of the policy
derision of the Far Eastern Commission entitled
‘Apprehension, Trial and Punishment of War Crimi¬
nal’ in the Far East,’ passed by the Commission on
3 April 1916. including such offenses alleged to have
been committed by persons suspected of offenses
falling under paragraph 1 (a) of the said policy
decision, should be completed before 30 June 1949,
and all trials there of should be concluded if possible
before 30 September 1949.’ 88
81. Ibid. p. 1004.
82. Ibid.
t3. Tbt Far Eoitern Comminion, Third Report. Dec. 24,1948-June
30. 1950. Cited is XX Bullaiia. Dept, of State. No. 513, May 1.19*9.
pp. 566.570.
THE MAJOR WAR TRIALS
On October 19. 1949, General Headquarters. SCAP.
announced the completion of the last scheduled war crimes
trial in Japan. An Information Bulletin issued by the Public
Information Office of General Headquarters on October 19.
1949. said:
“Since the surrender some 4.200 Japanese have been
convicted of war crimes. More than 7C0 have been
executed. Approximately 2.500 are serving terms
ranging up to life in prisons throughout the Orient.
Hundreds found guilty of comparatively minor
offenses are free, having completed their sentences.”
The executions and sentences resulted from verdicts
returned in some 2,000 separate or group trials by American.
Australian, British. Chinese, Dutch and French Military
tribunals.
Machinery for apprehension qnd trial of war criminals
was set up by General Douglas MacArthur. Supreme
Commander for the Allied Powers, soon after the Surrender.
The Far Eastern Commission in Washington, in carrying out
provisions of the Potsdam Declaration, formulated an Allied
policy of placing suspects under one of the three following
classifications:
“A. Those who planned or waged the War.
“B. Those who violated the laws and customs of war
by murdering or mistreating war prisoners.
“C. Those who murdered, enslaved or committed
other inhuman acts against civilian population
or persecuted them on political, racial or religious
grounds.* 4
Except for the trial of Hideki Tojo, former premier, and
24 other class ‘A‘ co-perpetrators of the war. all trials in
Far East concerned class *B’ and ‘C* war criminal suspects.
More than 1.000 of those were tried before military
commissions, set up by the U.S. Eighth Army and prosecuted
b4. Wl.ir.nun. Dif.jl of International Lao.: Vol. 11 (1S63). p. 1005.
86 WAR TRIAL IN DANGLA DESH
by the Supreme Commander’s Legal Section while the Eighth
Army’s Judge Advocate provided defense counsel. Of these.
124 were sentenced to be hanged. 62 to life, and approxi¬
mately 650 to terms ranging from a few months to 50 years.
Nearly 2C0 were acquitted or severed from the trials. 84
The Australians conducted trials at Singapore, Borneo.
New Guinea. New Britain, Darwin and Hongkong, the British
primarily in Hongkong, Singapore and Rangoon, the Chinese
mostly in Nanking and Shanghai; the Dutch in Java, Borneo
and elsewhere in the Netherlands East Indies; the Filipinos in
Manila, and the French in Saigon, Indo- China. American
trials were beard at Yokohama and. until the Republic of the
Philippines was established, in Manila.
After that a special division was set up at Manila and
there Generals Tomoynki Yamashita and Nasaharu Homma
were convicted and executed. 84
Trials before U. S. Army commissions at Yokohama have
ranged in length from four hours to more than 10 months.
The shortest was the conviction of Matsue Okubo who was
found guilty and sentenced to two years after t’le commission
heard two Americans testify that he beat prisoners at Davao
Penal Colony in the Philippines. The longest trial, the
Kyushu University case, disclosed that eight American fliers
were killed in experimental operations at the University clinic.
Evidence showed that in some cases the victims weie alive
when the experiments began. The worst oflender committed
suicide before he could be tried but 29 others were found
guilty and tour, including a lieutenant general, we re sentenced
to hang.* 1
A SCAP directive issued a few weeks after the beginning
of the Occupation set forth the rights of each Japanese accused
of war crimes. He was to be given a copy of the charges in
85. Ibid.
86. Ibid-, pp. 1005-1006.
87. Ibid., p. 1006.
THE MAJOR WAR TRIALS 87
advance, be represented by counsel of his own choice as well
as an American advisory council, the choice of testifying or
remaining silent, and given copies of documentary evidence
and translations of the proceedings.”
Appraisal of the Tokyo Judgment
The Tokyo judgment, like the Nuremberg judgment, was
not the product of the first flush of victory, as has been ob¬
served that “the grand Alliance which had brought the war
to a successful conclusion and had dedicated itself to the
eradication of war as the accumulation of all evil, had
broken apart. New conflicts and new problems had arisen,
a new alignments had been formed among the victors.”® In
his. concluding remarks on the Tokyo trial, Horwiti observes :
“Amidst the tensions of the new postwar conflicts
the members of the Tribunal might have succumed
to a feeling that their task was a futile one. It is
of the utmost significance that they did not succumb,
but, even under the impact of events which might
foreshadow a conflict more horrible than the one just
concluded: they elected to reaffirm as an act of faith,
their conviction that war was not a necessary conco¬
mitant of international life and that acknowledged
principles of law and justice were fully applicable to
nations and their leaders. Whatever may be the
ultimate decision on the merits of its judgment,
perhaps the real significance of the work of the Tokyo
Tribunal lies in this act of faith.”” 1
It may also be recalled here that the Charters of the
Tribunals at Nuremberg and Tokyo differed from each other
in several respects. In the first place, they differed with
regard to the composition. The Tokyo Tribunal was compo¬
sed of members from nations, namely, Australia, Canada,
China (Nationalist), France. India, the Netherlands, New Zea¬
land, Phillipines. Soviet Russia, the United Kingdom and the
89. Sofia Horwiti, “The Tokyo Trial. ‘‘International Conciliation,
N’o. 465, November 1950. pp. 475.544. at p. 574.
90. lbid.Ji.57i.
WAR TRIAL IN BANGLA DESH
United States. There were no alternate judges as in
Nuremberg since a bench of 22 judges was considered too
unwieldy for the purposes of the trial.”
Further, while at Nuremberg each signatory of the
Charter bad the tight to appoint a Chief Prosecutor, at
Tokyo the responsibility for the investigation and prosecution
rested completely with the Chief of Counsel, who was
appointed by the Supreme Commander of the Allied
Powers.”
The defendants at Tokyo were tried on charges, of crimes
against peace, conventional war crimes and crimes against
humanity. The Tokyo Tribunal, therefore, had jurisdiction
over persons only if they were accused of having committed
ofTences which included crimes againsc peace, in contrast to
the Nuremberg Tribunal which had no exclusive provision
of the kind.”
The trials at Nuremberg and Tokyo also differed in another
respect. The Tokyo Charter did not contain any provisions
authorising declarations that certain organizations or groups
were “criminal organizations” as did Articles 9 and 10 of the
Nuremberg Chatter.”
There was also a procedural difference between the
Nuremberg and Tokyo trials. At Nuremberg four languages
were used; while only English and Japanese were official lan¬
guages in Tokyo.”
Inspite of these differences the two Tribunals “showed a
uniformity of approach to the substantive rules of inter¬
national law involved.”**
i.. p. 228-
THE MAJOR WAR TRIALS 89
The Eichmann Trial
On May 11, 1960, Adolf Eichmann was abducted from
Buenos Aires. Argentina, where be had been living since 1950
under the assumed name of Ricardo Element. After signing
a letter purporting to consent to trial in Israel, he was removed
to Israel by members of the Israel Secret Service. On May
23, the Prime Minister of Israel announced that Eichmann had
been found and would be put on trial for bis part in the “Final
Solution.” The Government of Argentina protested that the
capture was a violation of Argentine territorial sovereignty,
for which it alleged that the State of Israel was responsible by
reason of its express approval of the action, and asked for
Eichmann’s return and the punishment of those responsible
for the violation of Argentine Law. In a Note of June 3. the
Government of Israel attributed the capture to a “volunteer
group” and expressed its regret if it had “violated Argentine
law and interfered with matters within the sovereignty of
Argentina.” Similar expressions of regret, and references also
to the lofty motives and the historical and ethical factors
involved, were made in a personal letter from Mr. Ben Gurion,
the Israel Prime Minister, to Mr. Frondizi. President of
Argentina.
The dispute, however, failed to be resolved through normal
diplomatic channels, and Argentina presented a complaint to
the Security Council of the United Nations requesting an
urgent meeting to consider the violation of its sovereign
rights.* 1 At the meeting of the Security Council held on June
22, I960, the Argentina representative emphasized that
Argentina has protested against a violation of its sovereignty
by the unlawful exercise of foreign authority within its
territory—to which it was irrelevant that Eichmann had been
living there under an assumed name and in breach of its
national laws—rather than against a violation of the general
rules governing territorial asylum or political refugees. He
97. U. N. Sccvriip Council. Ogicial Rccordi, l’th Ycot. Supplement.
April. May and June I960, p. 27.
90
WAR TRIAL IN BANGLA DESH
submitted a draft resolution (subsequently approved—with
minor amendments—by eight votes to nil, with two absten¬
tions) which, while disclaiming any condonation of the crimes
of which Eichmann was accused, declared that ‘acts such as
that under consideration, which affect the sovereignty of a
Member State and therefore cause international friction, may,
if repeated, endanger international peace and security”, and
requested the Government of Israel “to make appropriate”,
reparation in accordance with the Charter of the United
Nations and the rules of international law.” The Argentine
representive declined to specify what form of reparation would
be “appropriate”, and it appeared to be the view of most
representatives that the resolution itself and the expressions of
regret by the Government of Israel constituted. :n the special
circumstances, “appropriate reparation.” In the resolution as
finally adopted, the hope was expressed that “the traditionally
friendly relations between Argentina and Israel will be
advanced.””
The dispute was finally closed by a joint communique issued
on August 3. 1960. by the Argentine and Israel Governments.”
It was expressed that
“The Governments of Argentina and Israel, animated
by a desire to give effect to the resolution of the
Security Council of June 23. 1960 in so far as the hope
was expressed that the traditional’y friendly relations
between the two countries will be advanced, resolve to
regard as closed the incident which arose out of the
action taken by citizen* of Israel, which infringed the
fundamental rights of the State of Argentina.” 100
The pre-trial investigation lasted almost a year. The trial
of Eichmann by the District Court of Jerusalem began on April
11, 1961. and continued until August 14. Eichmann was
charged with offences under the Nazi and Nazi Collaborators
93. U. N. Do. . S’9349.
99. See. International Law Reports, Vol. 36. (rd. E. Lauterrochr. London,
19M). p. 59.
100. Ibid , pp. 6-7.
91
THE MAJOR WAR TRIALS
(Punishment) Law. 5710/1950. Section 1 (a) of which provides:
“A person has committed one of the following
offences
“1. done, during the period of the Nazi regime, in an
enemy country, an act constituting a crime
against the Jewish people :
“2. done, during the period of the Nazi regime, in an
enemy country, an act constituting a crime against
humanity ;
“3. done, during the period of the Second World War,
an enemy country, an act constituting a war
crime;
is liable to the death penalty”. 101
‘Crime against the Jewish people means any of the
following acts, committed with intent to destroy the
Jewish people in whole or in part:
“(i) killing Jews ;
“(ii) causing serious bodily or mental harm to Jews ;
“(iii) placing Jews in living conditions calculated to
bring about their physical destruction :
“(iv) imposing measures intended to prevent births
among Jews.
“ ‘Crime against humanity’ means any of the follow¬
ing acts : murder, extermination, enslavemnnt. starva¬
tion or deportation and other inhumane acts commit¬
ted against any civilian population, and persecution
on national, racial religious or political grounds.
” ‘War crime’ means any of the following acts :
murder, ill-treatment or deportation to forced labour
or for any other purpose, of civilian population of or
in occupied territory: murder or ill-treatment of
prisoners cf war or persons on the seas : killing of
hostages; plunder of public or private property:
wanton destruction of cities, towns or villages ; and
devastation not justified by military necessity.” 101
102. lb,d.
WAR TRIAL IN BANGLA DEiH
Section 3(a) provided :
A person who during the period of the Nazi regime,
in an enemy country, was a member of or held any
post or exercised any function in, any enemy organi¬
zation, is liable to imprisionment for a term not
exceeding seven years.” 108
Section 3(b) defined “enemy organization” as
“a body of persons which, under Article 9 of the
Charter of the International Military Tribunal
annexed to the Four-Power Agreement of August 8.
1945. on the trial of the major war criminals, has
been declared, by a judgment of that Tribunal, to be a
criminal organization.” 18 *
Section 8 excludes the defence of “superior orders”—
otherwise available under Section 19(b) of the Israel Criminal
Code Ordinance, 1936, where an act is done “in obedience
to the order of a competent authority which he (the accused)
is bound by law to obey, unless the order is manifestly un¬
lawful.” Section 11, however, permited the plea to be taken
into account in determining punishment (though subject to
a minimum of 10 years’ imprisonment for offences under
Section 1).
The indictment contained 15 Counts. For the most part
the facts alleged were not disputed. However the juris¬
diction of the Court was challenged on a number of grounds ;
that the Nazi and Nazi Collaborators (Punishment) Law
could not, by a rule of international law. apply to a citizen
of a foreign State, that it constituted ex post facto penal
legislation prescribing as offences acts done before the State
of Israel came into existence ; that the principle of territorial
sovereignty restricts the right to punish an offence to the
State in which the offence was committed, or to which the
offender belongs ; that the acts in question were, at the time
of their commission. Acts of State. It was also contended
that even if the Court did have jurisdiction it should not
103. lb id.
104. Ibid,
TUfc MAJOR WAR TRIALS 93
exercise it, since Eichmann had been brought within the
jurisdiction without his consent and in violation of inter¬
national law (his abduction from Argentina); that if the
Court did assume jurisdiction it should apply the Argentine
period of prescription (15 years) ; that Eichmann was a
minor official who acted under superior orders : and that the
Judges, being Jews and feeling affinity with the victims of the
crimes with which he was charged, were psychologically
incapable of giving him a fair trial. (This last objection
was rejected in Decision No. 3, Session 6. April 17. 1961).
The District Court rejected all these arguments (in para¬
graph 4 to 53 and 216 to 243 of its judgment 101 and held as
follows :
“The principles of international law universally recog¬
nised are incorporated into the law of Israel; and it
is a principle of statutory interpretation that there is
a presumption that a statute is not intended to con¬
flict with international law. But in case of such a
conflict, the statute is absolutely binding on the courts:
The Court has to give effect to the law of the
Knesset, and we cannot entertain the contention
that this law conflicts with the principles of inter¬
national law.” 10 *
The Court went on to affirm that the Nazi and Nazi
Collaborators (Punishment) Law conformed to the principles
of international law defining the criminal jurisdiction of States:
the crimes were both universal in character and specifically
intended to exterminate both the Jewish people, so that Israel
might assume jurisdiction under both the universality and
the passive personality and protective principles. The crimes
defined in the Law were patterned on crimes defined by
international agreements: the “crimes against the Jewish
people” followed the definition of the crime of genocide
in the Convention for the Prevention and Punishment of the
Crime of Genocide adopted by the United Nations General
103. Sec International Law geporu, 36 (1968). pp. 20-79 and 253-272.
106. IHJ.p. 10
94
WAR TRIAL IN BANGLA DESK
Assembly on December 9,1948; “crimes against humanity”
and “war crimes” followed the de6nitions of those crimes
in tbe Charter of the International Military Tribunal and in
Control Council Law No. 10; the ofTence of “membership of
an enemy organization” followed Control Council Law
No. 10 and tbe definition given by the International Military
Tribunal. The Court quoted from the Advisory Opinion of
the International Court of Justice on the Genocide Conven¬
tion l principles which are recognized by civilized nations as bind¬
ing on States, even without any conventional obligation”
and that the Convention was intended to be “universal in
scope”. 103 There was therefore no doubt that genocide was
recognized as crime under international law, ex tunc, and
therefore jurisdiction over it was universal. Although
Article 6 expressly assigned jurisdiction either to the State on
whose territory the crime was committed or to an inter¬
national tribunal, it did not exclude universal jurisdiction.
The Court was of the view that “Israel also could assume
jurisdiction on the basis of the protective and passive perso¬
nality” principles. There existed the necessary ‘links’ between
tbe State of Israel and the crimes defined in the Law; a
“crime against the Jewish people” postulated an intention to
exterminate the Jewish people in whole or in part; and the
connection between the Jewish people and the State of Israel
constituted an integral part of the law of nations, proclaimed
by the Declaration of the Establishment of the State of Israel
in 1948, the United Nations General Assembly Resolution of
November 29, 1947, calling for the establishment of a Jewish
State in Palestine, and its subsequent recognition.” 1 ® The
Court further stated; “The plan of extermination included
those Jews living at that time in Palestine, and was one of
THE MAJOR WAR TRIALS 95
the causes of the establishment of the State; half of its
citizens were recent immigrants from Europe and had lost
relatives in the massacre there. It was irrelevant that the State
of Israel did not exist at the date of the commission of the
crimes in question; the protective principle confers jurisdic¬
tion in respect of interests existing at the date of the enact¬
ment of the law in this instance the defence of the Jewish
people by the punishment of those responsible for the
massacre. A new State may try crimes committed even out¬
side its territory before its establishment where, in spice
of a change of sovereignty over territory, there exists a
continuity of law ; the Nazi and Nazi Collaborators (Punish¬
ment) Law may be regarded as filling a gap in the laws of
Mandatory Palestine, protecting interests existing then, since
the Mandate itself constituted international recognition of
the Jewish people.” 110 The Court was of the view that “A
still broader principle was applicable to genocide; the right
of the injured group to punish offenders derived directly from
the crime committed against them, and only its want of sove¬
reignty denied it the power to punisb; if the injured group or
people thereafter achieve political sovereignty in any terri¬
tory, it may exercise such sovereignty for the enforcement of
its natural right to punish the offender who injured it. And.
in any event, no specific rule of international law had been
shown denying the power of Israel to try the crimes in
question.” 111
The District Court of Jerusalem relied on the repudiation
of the ‘Act of State’ doctrine by the International Military
Tribunal, by the United States Military Tribunal in the
Justice Trial, and in the formulation of the Nuremberg
Principles, by the International Law Commission (Principle
No. 3), the General Assembly Resolution of 1946 on the
crime of genocide, and the Genocide Convention (Article 4).
110. Ibid. p. 55.
111. See Ibid. pp. 69-76.
96
WAR TRIAL IN BANGLA DESH
Relying on numerous decisions of courts of England, Israel
and the United States of America, the District Court of
Jerusalem said that “it was an established rule of law that a
person being tried for an offence against the laws of a State
may not oppose his trial by reason of the illegality of bis arrest
or of the means whereby he was brought within the jurisdiction
of that State, whether the illegality was under municipal or
international law. A violation of sovereignty constituted an
international tort, giving rise to a duty to make reparation
which might be waived by the State injured, and the accused
could not claim rights which the State had waived—as
Argentina had done. There is no immunity derived from asylum
given by a sovereign State, except in the case where a person
has been extradited for a specific offence not the one for
which he is being tried (the principle of speciaility) ; and in
any event the accused could not compel a State to give him
protection against its will by concealing his identity.””’
The Court also stated that the jurisdiction of the Israel
courts derived from the violation of Israel law, to which
Argentine law (under which the period of prescription bad
lapsed shortly before the abduction) bad no application. 11 ‘
The Court examined Eichmann’s carrier from 1932, when
he joined the Austrian S. S.. underwent training in Germany
and volunteered for service in 1934 with the Berlin Head
Office of the Security Service (S. D.) where he was
engaged in intelligence work first in the freemasonry and later
in the Jewish sections. 11 * After the annexation of Austria in
March 1938, be was sent to Vienna “to administer the Centre
for the Emigration of Austrian Jews—which dealt with forced
emigration and dispossession of property—and later to Prague
and Berlin to establish and administer similar centres.” 11 * From
THE MAJOR WAR TRIALS
97
the outbreak of war be was given “the additional tasks of
organizing transport from the Reich to Poland, for the Nisco
Plan, the deportation of Jews from the annexed eastern
territories—in connection with plans for the resettlement of
these areas with people of German origin, deportation of Jews
from Stettin to Poland, expulsion of Jews from the Saar
Palatinate and Baden to unoccupied France, and the devising
of the abortive Madagascar Plan. In March 1941 he was
appointed Head of Department IV u4 of the Gestapo, in
charge of “Jewish affairs and Evacuations.” 11 ’ In June 1941
he was informed of the order for extermination, the “final
solution”, and was thence forward responsible for giving
instructions for its execution—through local Gestapo com¬
manders in Germany, advisers from bis department attached
to local S. D„ and German diplomatic representatives in
occupied and Axis territories—and for transportation, under
inhuman conditions, to extermination camps. In regard to
the Eastern occupied territories, the Court found that he was
connected with the Einsatzgruppen carrying out massacres
there, and later with the introduction of gas and the use of
Zyklon B at Auschqitz. ,, ‘ i There was, however, no adminis¬
trative connection between his department and the extermi¬
nation camps, but his department did control Theresienstadt
and Jewish detainees in Bergen-Betsen. and he gave orders
for the termination of pregnancies in Theresienstadt. 11 ’ The
Court rejected the contention that Eichmann was merely a
“small cog” in the extermination machine, finding that was
the head of the department of the RSHA ( Reichssicherhe-
itshauptamt) engaged in carrying out the “final solution”
in accordance with general directives but having wide dis¬
cretionary powers in planning ; that the {execution of the
programme gave him personal satisfaction ; and that the
117. Hid., pp. 93-103.
118. For an account of Eichmann’t part in the Introduction .,! the uie of
Gat. tee Ibid.. pp. 209.218.
119 For dctailt tec ibid., pp. 112-193.
98 WAR TRIAL IN BANGLA DESH
defence of superior tirders wm only available where the orders
were not “manifestly unlawful.” -which the order for exter¬
mination manifestly was.
Eichmann was therefore find gnilty of crimes against
‘the Jewish people (Counts 1 to 4 : of the indictment) in res¬
pect of his participation in the “Final Solution! 1 ‘ In view
of the Court, Eichmann was an accomplice to the extermina¬
tion of all victims of genocide from’ 1941 to 1945, irrespective
of the extent of his participation. According to the Court
Eichmann was from Tune 1941 privy to the Nisco plan and
played a central partln It, and-was therefore “an- accomplice
in all its aspects: even if his responsibility Were based only
on his personal participation, he had been concerned with all
its elements.” 1 ” He was also convicted of crimes against
humanity (Counts 5 to 7) for his activities in the Emigration
Centres, deportations and the “Final Solution.” According
to the Court, “The plunder of property of those Jews forced
to emigrate or deported was a crime against humanity when
committed by means of terror or linked with other acts of
violence as defined in the Law, or when it was a result of
those acts, so that it was part of a comprehensive process,
as was the plunder by the Centres for Jewish Emigration of
those who were deported and exterminated.” 111
Eichmann was further found guilcy of war crimes (Count 8)
for the acts of persecution, deportation and murder, in which
he took part during the war, of the populations of occupied
territories .- 1,, and of crimes against humanity (Counts 9 to 12)
for the deportation of Palish civilians from 1940 to 1942, of
Slovenes in 1941, of gypsies, and of 100 children from Lidice
in Chechoslovakia, and guilty of membership of enemy
organizations 113 (Counts 13 to 15) for membership of the
S.S.. S.D. and Gestapo from May 1940—not for membership
121. Sec ifed., pp. Z39-242.
122. See ibid., pp. 242-243.
123. /bid., pp. 243-232.
in the law of Israel by virtue of international law.
However, there was no moral justification for pre¬
venting the application of the Israel legislation. 1 *
(3) The Supreme Court of Israel also rejected the
argument of counsel for the appellant that the enact¬
ment of criminal law applicable to an act committed
in a foreign country’by a foreign national conflicts
252-276.
ICO WAR TRIAL IN BANGLA DESH
with the principle of territorial sovereignty. The
Court held that there is no such rule in customary
international law, and it has not obtained general
international agreement. 1 ” Both the District Coart of
Jerusalem and the Supreme Court of Israel quoted the
judgment in the Lotus ease. The majority of the judges
of the Permanent Court of International Justice in die
Lotus case recognized that “there is no rule of
customary international law to the effect that the
enactment of a criminal law applicable to an act
committed in a foreign country by a foreign national
conflicts with the principle of territorial
sovereignty.” ,u
(4) The crimes defined in Nazi and Nazi Collaborators
(punishment) law mu6t be deemed to have always
been international Crimea, entailing individual criminal
responsibility: customary international law is analogous
to the Common Law and develops by analogy and by
reference to general principles of law recognized by
civilized nations: these crimes share the characteris¬
tics of crimes recognized by customary international
law ) acts which damage vital international interests,
impair the foundations and security of the inter¬
national community, violate universal moral values and
humanitarian principles underlying the systems of
criminal law of civilized nations), and the principle of
universal jurisdiction over “crimes against humanity”
(including genocide and war crimes) similarly derives
from a common vital interest in their suppression.
The State prosecuting them acts as agent of the
international community, administering international
law. The limitation on the exercise of universal
jurisdiction—that the extradition of the offender must
first be offered to tbe State in which the offence was
committed—cannot apply here, as the Government of
West Germany had refused to demand Eichmann’s
extradition. This limitation is not designed to prevent
a violation of territorial sovereignty, but to ensure
trial in the fotum conveniens- which in this case is
Israel, where the majority at the witnesses reside and
the bulk of the relevant documents are gathered. No
rule of international law’ or State practice requires
an offer to extradite tbe offender to his national State.
The contractual obligation of Article 6 of the Genocide
127. IbU.. p. 284.
120. P. C. /. Series A. No. 1C. 19:7. r . 54.
THE MAJOR
TRIALS
101
Convention does not effect the universal power
vesced in every State to prosecute offences committed
in the past. The Court also expressed agreement
with the District Court in upholding its jurisdiction
on the basis of the protective and passive personality
principles. 10
(5) As regards abduction of Eichmann, the Supreme
Court of Israel reiterated the conclusions of the District
Court, which were as follows : that, in the absence of
extradition in accordance with an extradition agree¬
ment, the Court will not investigate the circumstances
in which the accused was detained and brought within
the jurisdiction : it such abduction is a violation of
international law. the right violated is that of the
State aggrieved, nor of the offender, and finds its
solution on the international level ; the violation may
ba condoned and the claim waived, explicitly or by
acquiescence ; only the principle of specialty gives a
fugitive offender any right of immunity, and this does
not apply to Eichmann as he was not extradited under
any extradition treatv ; the Governments of Argetina
and Israel had settled their dispute before the indict¬
ment was presented ; the rights of asylum and immunity
belong to the country of asylum, not to the offender,
and Argentina gave no asylum as it did not inirially
consent, and by waiving its claim for Eichmann’s return
finally refused, to grant him asylum. The Court
rejected the argument that this applied only to a
fugitive from justice fleeing the territory of a State
already in existence and with jurisdiction to try him.
Eichmann was a fugitive from justice from the point
of view of the law of nations, since his crimes were of
a universal character, and jurisdiction to try him
therefore automatically vested in the State of Israel
on its establishment as a sovereign State. The Court
refused requests to examine whether the Government
of Israel was patty to the abduction, as even if this
were established it could not benefit Eichmann; it also
be examined as to the terms of the joint communique
on the ground that its terms were clear and unequivo¬
cal. Eichmann could not rely on Article 5 of the
European Convention for the Protection of Human
Rights and Fundamental Freedoms as vesting in him
a right to freedom and personal security, as Israel was
not a party to that Convention ; and his abduction
129. Stt International Law R t porn, 36 (1963)
102 WAR TRIAL IN BANGLA D£SH
was no ground for denying the competence of the
Court to try him once he was within the jurisdiction. 1 * 0
(6) The Act of State doctrine is not an absolute
concept, nor is there any basis for its application to
acts prohibited by the law of nations, especially crimes
against humanity, which are outside the jurisdiction
of a State to order or ratify and therefore involve
personal responsibility; it is also excluded as a defence
in respect of the crimes defined in Article 7 cf the
Charter of the International Military Tribunal (Princi¬
ple No. 3 of the Nuremberg principles formulated by
the International Law Commission) and in Article 4 of
the Genocide Convention. It was no defence that at the
date of the acts committed the anti-Jewish decrees of
the Nazi regime had the force of law : the “Final Solu¬
tion” was never embodied in a law. and the dominant
tendency in West German jurisprudence has been to
invalidate ah initio discriminatory and destructive
decrees of the Nazi regime and “norms” of Hitler’s own
creation. Moreover, such degrees were not laws in the
contemplation of international law and could not vali¬
date there crimes or absolve their author from
personal responsibility. 1 ’ 1
(7) Within the framework of the order to carry out
the “Final Solution” Eichmann acted independently,
and even exceeded the duties imposed on him: there¬
fore this defence could not apply. In excluding the
defence of superior orders the Nazi and Nazi collabo¬
rators (Punishment) Law violated no rule of inter¬
national law. No such rule had ever been agreed
to by all States even in regard to war crimes in the
narrowest sense, hence its exclusion from the Charter
of the International Military Tribunal was no
departure from customary international law. 1 * 1
(8) Rejecting the contention about the lack of
impartiality of judges, the Supreme of Israel
adopted the reply of the Judges of District Court
that ‘‘the judge, when dispensing justice in a court
of law. does net cease to be a human being, with
human emotions and human passions. Yet he is
enjoined by the law to overcome these emotions and
passions for were it not so. no judge would ever be
fit to try a criminal case which evoked deep feelings
130. Ibid.. pp. :(VI-308.
131. Hid.. PP. 308-312.
132. Ibid.. PP. 313-319.
THE MAJOR’WAli TRIALS ‘ liB
” and 3 tevdla3ion,- anch as treason or murder or any
other ceuouscrime. It is very true that the memory
. of the holocaust shakes every Jew to the depths of
his‘b£Mg, hi* once this case has been brought before
us ids our duty to subdue even these emotions as we
sit in judgment…” 1 ®
Appraisal of the Eichmann Judgment
The positive role of the Eichmann trial has been contested
by lawyers in the Anglo-Saxon countries. The trial has been
criticised by some as an “act of vengeance.” 1 ’ 1 The jurisdic¬
tion of the Israeli court which tried Eichmann was challenged
on several grounds. In view of die abduction of Eichmann
from Argentina, it was contended that an Israel Court could
not have taken jurisdiction over him according to the princi¬
ple of ex injuria jus non oritur or according to the doctrine
of the “fruit of the poisonous tree” well known in the United
States. According to this doctrine ‘a thing aquired by
illegal means, must be restored to its original owner.’ 1 ”
Further, it is said that the judges on the Eichmann Tribu¬
nal were of the Jewish nation and thus the impartiality of
the judges in the Eichmann case was also questioned. Both
the territoriality and nationality principles were cited as
objections to the jurisdiction of the Israeli Court to try
Eichmann. It was also argued that Eichmann’s deeds
amounted to Acts of Sate and as such the Court could not
try him. Like the Nuremberg Tribunal, the Court in the
Eichmann case was also criticised for applying ex post facto
law.
It should also be mentioned here that the Eichmann Trial
was not an international trial and many of the criticisms
against the trial “could have been avoided through the
institution of an international trial.” 1 ®
~m. Ibid., p. 319.
114. Robert K. W«:;l, or at., p. 256.
135: Ibid , p. 251.
136. Ibid., p. 255.
104 WAR TRIAL IN BANCLA DESH
Nevertheless, the Eicbmann judgment was “the reply to a
fundamental ethical requirement which comes from the past
and is addressed to the future.” 1 * 1 The contribution of the
Eichmann trial is important in the following respects:
Firstly, the Eichmann’s trial has brought to the fore¬
front the ethical postulate of the punishment of
Secondly, it revealed the obstacles and the problems
which present day inteinational reality raises in the
establishing of an effective restraint of genccide.
Lastly, it also contributed to the development of
the international punishment of genocide. 1 **
In summing up, it may be said that war crimes trials “are
another means of forcing states to obey the laws of war”. 1 **
In some respects, genocide and crimes against humanity are
wider than war crimes. 140 The Nuremberg trial and the
Eicbmann trial can constitute precedents for the trial for
war crimes and genocide in Bangla Desh.
137. Peter Papadaroa. The Eichmann Trial, op. eil. p. 103.
133. Ibid., p, 104.
139. Michael Akrhurat. A Modern Introduction to International Law
(London, George Allen and Unwin Ltd.. Minerva Scnca. 1970).
p. 332-
140. See Ibid, p.,334.
3
£ome
Problems and Questions
Concerning the Trial of
Pakistani War Criminals
The recent happenings in Bangla Desh, known all over the
globe now. have shocked the conscience of all the civilised
governments and the peoples of the world. Yahya Khan’s
Military Junta totally ignored their appeals and continued to
indulge in a gruesome and systematic massacre of millions of
people.
The stories passed on to by foreign and Indian press
correspondents and the refugees who crossed into India, give
a harrowing tale of the brutalities perpetrated against an
unarmed and innocent people. What happened after March 25.
1971, was a gruesome and a tragic story of a helpless people,
who were being crushed by a powerful military machine. The
Swadhin Bangla Betar Kendra reported on March 29, 1971,
that the Pakistani Army. Air Force and Navy had massacred
300,000 people and urged free Nations of the world to check
this genocide. Pakistan’s military authorities selected targets
for extinction and fell upon the youth and intellectuals like
mad wolves. Dacca Uuiversity was fired upon, killing
hundreds of students, professors and scholars. Many girl
students residing in the University campus were kidnapped by
106 WAR TRIAL IN BANGLA DESH
the army and molested. Later, on April 13, the Pakistani
troops forced 300 students of St. Francis Xavier School in
Jessore to line up and machine-gunned them.
The Pakistani Army attacked the civilians without any
warning. It started so suddenly that when the Army moved
into the streets of Dacca to annihilate the important centres
of the independence movement, people were taken by a big
surprise, as they were told a day before that a decision to give
them autonomy was in the offing.
It was the devil’s day, March 25. 1971, when the West
Pakistani troops, who were clandestinely moved into East
Bengal during the period of talks, brutally machine-gunned the
Awami League Party workers and their sympathisers in the
streets of Dacca and elsewhere. The Pakistani Army indulged
in indiscriminate killings. The houses were razed to ground,
women raped and killed and children mercilessly butchered.
This was a holocaust and the political activities in Pakistan
were banned and the Awami League Party of Sheikh Mujibur
Rehman completely outlawed. The black martial law was
reimposed and the Press was strictly censored. Foreign corre¬
spondents in East Bengal were huddled together and bundled
out. This resulted in a national uprising of an unprecedented
character and everyone, men, women, and young and old raised
their voice as ONE MAN to safeguard their democratic rights
and to free themselves from the tyrannical rule of Yahya
Khan.
The whole public opinion in India and different political
parties of the country made an unanimous demand that the
Government of India should take concrete measures to stop
the genocide in Bang la Desh and fully sympathise with the
people of that country who were facing a savage and brutal
attack by the Pak Army. They also demanded the recognition
of Bangla Desh. 1 This mobilisation of public opinion in India
1. India lecognbcd the People** Republic of Ftngla Ecth cn December
6, 1971.
PROBLEMS & QUESTIONS CONCERNING 1 HE TRIAL 107
resulted in the passing of a resolution in the Indian Parliament,
moved by the Prime Minister herself on March 31,1971. The
resolution condemned the atrocities and brutalities perpetrated
by the Pak Army on the unarmed and peaceloving people of
East Bengal. The resolution also made a fervent appeal to
all the governments of the fkorld to prevail upon the Military
rulers of Pakistan to put an end immediately to the systematic
decimation of Bengalis amounting to genocide. The text of
the resolution read as follows :
“This House express its deep anguish and grave
concern at the recent developments in East Bengal.
A massive attack by armed forces, despatched from
West Pakistan has been unleashed against the entire
people of East Bengal with a view to suppressing their
urges and aspirations. Instead of respecting the will
of the people so unmistakably expressed through the
election in Pakistan in December 1970. the Govern¬
ment of Pakistan has chosen to flout the mandate of
the people.
“The Government of Pakistan has not only refused to
transfer power to legally elected representatives but
has arbitrarily prevented the National Assembly from
assuming its rightful and sovereign role. The people
of East Bengal are being sought to be suppressed by
the naked use of force, by bayonets, machine guns,
tanks, artillery and aircraft.
“The Government and people of India have
always desired and worked for peaceful, normal and
fraternal relations with Pakistan. However, situated
as India is and bound as the people of the subconti¬
nent are by centuries old ties of history, culture and
tradition, this House cannot remain indifferent to
the macabre tragedy being enacted so close to our
border. Throughout the length and breadth of our
land, our people have condemned, in unmistakable
terms, the atrocities now being perpetrated on an
unprecedented scale upon an unarmed and innocent
“This House expresses its profound sympathy for
and solidarity with the people of East Bengal in
their struggle for a democratic way of life. Bearing in
mind the permanent interest which India has in peace.
108
WAR TRIAL IN BANGLA DESH
and committed as we are to uphold and defend human
rights, this House demands immediate cessation of
the use of force and the massacre of defenceless
people. This House call: upon all peoples and
Governments of the world to rake urgent and cons¬
tructive steps to prevail upon the Government of
Pakistan to put an end immediately to the systematic
decimation of people which amounts to genocide.
“This House records its profound conviction
that the historic upsurge of the 75 million reople of
East Bengal will triumph. The House wishes to
assure them that their struggle and sacrifices will
receive the wholehearted sympathy and support of
the people of India.” 1
India also told the United Nations that persons who had
committed grave crimes such as genocide, war crimes and
crimes against humanity are, in its view, not entitled to any
immunity under any of the Geneva Conventions. The Joint
Command of the Bangla Desh and Indian forces has the right
to demand their evacuation on behalf of the Government of
Bangla Desh so that they could be taken into custody
pending appropriate legal action under the law of the
land and under international law. India’s permanent
U.N. representative at the United Nations, Mr. Samar
Sen. conveyed this view of the Government of India to U N.
Secretary-General. Mr. Kurt Waldheim, in his letter dated
January 14. 1972.’
Reaffirming India’s stand on the trial of Pakistani prisoners
of war. the Prime Minister, Mrs. Indira Gandhi in an
interview, told Mr. Gyoergy Kalmar of the Hungarian journal,
Nopszadadsag that those who have committed crimes are
not exempted from the processes of law. She said :
“There is no doubt that the POWs surrendered to
rhe joint command of Indian and Bangla Desh
forces. This fact is as real as Bangla Desh. Bangla
2. Bangla Desh Documents, Ministry of External Affair*, Govern m cm of
India, New Delhi, p. 672. (Hereafter c.teJ a, Bangla Desk
Documents.)
3. The Hindustan Times, New Delhi. ]*mnry
13, 1972,.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 109
Desh is recognised by more than 60 sovereign states.
It is not a fiction. So far as tbe trial of some POWs
is concerned…the Geneva Conventions provide for
such trials. POWs are not exempted from tbe
processes of law if they have committed a crime.”*
Pakistan, however, asked tbe President of the Security
Council. Sir Colin Crowe of Britain, to intervene with
India to forestall the intended trials of West Pakistanis as
war criminals in Bangla Desh. In a letter to Sir Colin, the
Pakistani Ambassador, Mr. Agha Shahi expressed his Govern¬
ment’s serious concern about the intention to hold
these trials. He said, ” India was responsible for the Pakistani
prisoners involved and that it had assured their safety under
the terms of the Geneva Conventions.” 4
Bangla Desh intellectuals launched a mass signature
campaign on January 15, 1972, demanding the trial of Lt.
Gen. A. A. K. Nia:i and Maj. Gen. Rao Farman Ali of the
Pakistani Army, as war criminals for committing genocide
and inhuman anocities. Dr. Kabir Chowdhury, Director of
the Bangla Academy stated that “the object of the campaign
was to put pressure on the United Nations Human Rights
Commission for setting up immediately an international
inquiry commission for punishment of war criminals.”*
He also cabled tbe World Jurists Association, the World
Peace Council. Soviet President Leorid Brezhnev. Mr. Harold
Wilson, Senator Edward Kennedy and others about the
need for setting up a war crimes tribunal for trying guilty
Pakistani officers.
Referring to the genocide and other inhuman atrocities
committed during their nine months of occupation. Dr- Kabir
Chowdhury said, “the Pakistani Army and their agents killed
the intellectuals including students, teachers and doctors on
4. The Sunday Standard. New Delhi. April 23. 1972, p. 1.
5. The Hindustan Times. New Delhi, April 8.1972, p. 1.
6. The Hindustan Times. New Delhi, January 16, 1972, p 1.
7 Ibid.
110
WAR TRIAL IN BANGLA DESH
the eve of liberation of Bangla Desk” 1 He described the
killings of intelleauals as planned and held Gen. Niazi and
Maj Gen. Firman Ali and other officials responsible for
cold blooded murders. Dr. Chowdhury stressed the need
for trial of these senior officials of the Pakistani Army who
are now in custody of the Indian authorities as prisoners
of war.
On January 21, 1972. Bangla Desh Prime Minister Sheikh
Mujibur Rehman appealed to the United Nations to rake
initiative in instituting a tribunal to go into the genocide
committted on the soil of Bangla Desh. Foreign Minister
of Bangla Desh, Mr. Abdus Samad also appealed to the
World Peace Council to call upon the United Nations to
discharge its obligations regarding the trial of war criminals.’
The Bangla Desh Prime Minister. Sheikh Mujibur Rehman
reiterated on Apnl 7, 1972 that war criminals would be tried
on the soil of Bangla Desh. Addressing the executive
committee of the Awami League, he said, “those found not
guilty would be repatriated”.’ He further made it clear that
“the Bengalis stranded in Pakistan and the war criminals
could not be treated on the same level.” 10 On the trial of
war criminals, the Sheikh was emphatic and unequivocal.
He observed:
He (the Sheikh) could not understand how the
people who had committed genocide could escape the
consequences. What would the posterity say? The
international community would never forgive us if
we were to let killings, tape, and loot go unpunished.
My people have been butchered, not a few hundred,
not a few thousand but three million. We must try
at least those Pakistani soldiers against whom we
have firm evidence. For instance, we have a docu¬
ment in Major General Rao Firman Ali’s own hand
in which he said that the green map of Bangla Desh
will pointed red. We will produce the document
when the time comes.” 11
87 The Hindustan Tin …. New Delhi. J.niury 22. 1972. p. 1.
9. The Hindustan Timet. New Delhi. April 8. 1972, p. 1.
10. Ihid.
11. The Hindustan Times. New Delhi. April 27. 1972. p. 4.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 111
Thus the Bangle Desh Government is determined to try
some of the Pakistani prisoners of war charged with war
crimes and genocide under the Geneva Conventions on war
crimes and also Pakistani collaborators. The Bangla Desh
Government may even demand from the Pakistan Govern¬
ment to hand over the officers responsible for war crimes and
genocide who are now living in Pakistan for trial.
Addressing the Indian Law Institute at New Delhi on
April 19, 1972, Professor L.C. Green, Professor of Inter¬
national Law in the University of Alberta (Canada), stated
that the trials of Pakistani war criminals in Bangla Desh
were going to pose many ticklish problems and questions.
Some of these problems and questions concerning the trial
of Pakistani war criminals may now be analysed and
examined.
The Problem of Admission of Evidence
The procedure provided in the Anglo-Saxon law is the
one which guarantees respect for the fundamental rights of
the defence and ensures the conditions for an equitable
judgment. There are several eye-witness accounts and
testimonies of the victims of war crimes and genocide in
Bangla Desh, whose probative value cannot be ignored inspire
of the fact that they are not given in a court of law.
Some Eyewitness Accounts and Testimonies
Although the Pakistan Government bundled out all the
foreign correspondents, a few of them, however, managed to
smuggle out of East Bengal stories of death and destruction
and the horrible cruelties indulged in by the Pakistani Army
in Bangla Desh. In an editorial ‘A Massacre in Pakistan,’
The Guardian, London March 31,1971 wrote:
“Only now are we getting Pakistani facts to abet
fears. President Yahya Khan has written to suppress
these facts, filling his air waves and press with evasive
propaganda, deporting every journalist he could find.
112
WAR TRIAL IN BANGLA DESH
But a few independent reporters escaped this net and
their stories—just emerging—reek with horror :
crowds indiscriminately machine-gunned, student
hostels razed by shells, shanty towns burned and
bombed, civilians shot dead in their beds. We do
not yet know the fate of those arrested in East or the
Rue level of resistance through the province. But
we do know first-hand and reliably that many
unarmed and unready Bengalis have died.
…The fate of Dacca is a crime against humanity and
human aspirations; no one should stand mealy-
mouthed by.” 15
Further eye witness accounts and testimonies of crimes
committed by the Pakistani army in Bangla Desh are as
follows :
Mr. A. Hossain of the Paiistan Observer speaking to Mr.
Peter Hazelhurst of the rimes, London, as published in the
Times’, dated May 24. 1971, said :
“I saw many bodies floating down the Buriganga
between May 6 and May 10. Their hands were tied
together and in some cases six ro seven victims bad
been roped together. There were no signs of violence
on the bodies. Some people nearby told me that the
victims were workers belonging to the Sattar match
factory on the outskirts of Dacca and that non-Bengalis
were responsible for the killings.”
Mr. Hassan Ullah Chowdhury, the manager of the
Bengali edition of PURAB DESH, was hacked to
death two weeks ago by non-Bengalis in his house in
Mirpur, nine miles out of Dacca. This is a non-Bengali
residential area and most of the Bengalis were either
attacked or killed there after the army took over. If
they see any able-bodied Bengalis. they. pick them up
in a nuck and take them away. I don’t know what
happened to them.
“One of my colleagues was sent to Jessore and told to
write a story about the normal conditions there.
Every member of his family had been butchered, but
they still wanted him to write a story claiming that the
situation was normal.” 1 *
~12, Bangla Deik Document), pp. 387-388.
13. Ihd.. p. 357.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 113
Mr. Anthony Mascarenhas, former Assistant Editor.
Morning News. Karachi, in an article, published in The Sunday
Times . London of June 13. 197L wrote :
“The pogrom’s victims are not only the Hindus of East
Bengal who constitute about 10% of the 75 milllion
population—but also many thousands of Bengali
Muslims. These include university and college
students, teachers. Awami League and left-wing poli¬
tical cadres and every one the army could catch of the
1.7P.000 Bengali military men and police who mutinied
on March 26 in a spectacular to create an independent
Republic of Bangla Desh.
“The bone-crushing military operation has two
distinctive features. One is what the authorities
li*e to call the ‘cleansing process’, an euphemism for
massacre. The other ii the ‘rehabilitation effort’. This
is a way of describing the moves ro turn East
Bengal into a docile colony of West Pakistan. These
commonly used expressions and the repeated official
references to ‘miscreants’ and ‘infiltrators’ are part of
the charade which is being enacted for the benefit
of the world. Strip away the propaganda, and the
reality is colonisation and killing.’ 1 *
Mr. Sydney H. Schanberg. who was one of 35 foreign
newsmen expelled from East (Bengal) in a cable despatched
from Bombay, which was published in The New York Times
of March 28, 1971, said :
“The Pakistan Army is using artillery and heavy-
machine guns against unarmed East (Bengal) civilians
to crush the movement for autonomy in this province
of 75 million people.
“Some fires were scill burning and sporadic shooting
was continuing early this morning when the 35 foreign
were expelled from Dacca.
‘My God. my God’, said a student watching from
a hotel window trying to keep back tears, ‘they’
are killing them. They’re slaughtering them.’
“When the foreign newsmen, all of whom were staying
at the Intercontinental Hotel tried to go outside to
4. /bid., pp. 355-361.
114
WAR TRIAL IN DANGLA DESH
find out what was happening, they were forced back
in by a heavily reinforced army guard and told they
would be shot if they step out of the building.
“As the soldiers were firing down the alley, a group of
about 15 or 20 young Bengalis started along the road
towards them, from about 200 yards ofT. They were
shouting in defiance at the soldiers, but seemed
unarmed and their hands appeared empcy.
“The machine gun on the jeep swung around towards
them and opened fire. Soldiers with automatic rifles
joined in. The Bengali youths scattered into the
shadows on both sides of the road. It was impossible
to tell whether any had been wounded or killed.”’*
The Times, London, in an editorial published on April 3,
1971 wrote :
“The more the news from East Pakistan accumulates,
the more harrowing it becomes. Senseless murder,
hysterical cruelty and what must be a creeping fear
run like a current throughout this packed mass of
human beings. All this the distant observer may
assume despite the protests of Pakistan Government
at some of the stories that have been given circulation.
By now the picture is a little more clear and a great
deal more gruesome. Enough first-hand reports from
Dacca itself and from some of the major towns have
come into confirm that what is happening is far
worse than what might have been expected in a war
of East Pakistan resisting the forces of the Central
Government in their demand for independence. The
accounts pilling up make conditions in East Bengal
sound only too much like the massacres that broke
out between Mulims and Hindus in the months leading
up to the partition of India.” 1 *
The New Nation, Singapore in an editorial published on
April 6, 1971 wrote :
“The way the army has acted, it is now clear, sur¬
passes anything that could pass for legitimate use of
force. It has resorted to wanton murder of civilians,
including women and children, in a deliberate plan to
achieve submission by stark terror.
15. Ibid., pp. 330.381.
16. Ibid., pp. 391-392.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 115
“If it was a misguided decision for President Yahya
Khan to have ordered his armies out to persist in it
is an act of irresponsibility of such cruel magnitude
that the world’s conscience cannot continue to accept
it as a matter that Pakistan only can decide.
“The East Pakistan holocaust must stop, appeals
to see reason have been made to Rawalpindi by India,
Russia and Britain. More countries must join in this
effort to demonstrate that the voice cf humanita-
rianism cannot be stilled by pedantic considerations
of internal sovereignty.” 11
The Hongkong Standard in an article published on June 25,
1971 wrote :
“For hundreds of years, the name of Genghis Khan
has echoed through history as a byword for cruelty
and butchery.
‘ In the 20th century, it seems a Pakistani name sake
of the great killer is determined to out-do bis grisly
predecessor.
“Pakistan’s General Tikka Khan with modern nicely
known as the ‘pacifier of rebellious East Pakistan’ is
commanding fierce Punjabi and Pathan troops who
are running wild in a learfome bloodbath.
“There is overwhelming evidence of murder, of sense¬
less slaughter of ch’ldren, of rape, of prostitution
organised by and for senior army officers, of whole¬
sale. maddened, crazed, blood-thirsty determined
massacre.
“Genghis Khan, for all his bloody faults, at least built
up an empire in the course of his carreer.
“Tikka Khan and his gang of uniformed cut-tbroats
will be rememhereJ for trying to destroy the people
of half a nation.” 1 *
The Dagens Nyheter , Stockholm, in an article published
on June 27. 1971 wrote :
‘The reign of terror in East Bengal is now in its fourth
month. The fleecing and hunted people are still
17. Ibid., p. 373.
18. Ibid.. P. 406.
116 WAR TRIAL IN BANGLA DESH
streaming across the border into India. There is no
limit to the brutality of the Pakistani military dicta¬
torship—very few of the terror victims belong to the
Bengali group of leaders whom the aggressors are
trying to eradicate. Also the common man falls
victim to the ‘fiscal solution’ which the Pakistani
Army, obressed by power, is trying to force through
as the terrible climax to decades of systematic mis-
govvrnment. Scenes which are a daily occurrence
along the border between East Bengal and India
eipose the miserable lies about the return ro nor¬
malcy’ with which the dictatorship is trying to camou¬
flage its crime against its fellowmen.
“The longer this was. this persecution and devastation
goes on. the stronger will be our condemnation of
the Governments which have not yet managed to pull
themselves together in a determined effort to stop the
bloodbath. The suffering we see in the Bengali women’s
eyes i« a compromising picture of our era’s states¬
manship. Behind the official inability to bring pres¬
sure on Yahya Khan from outside moral, political
and above all economic pressure—lie cynicism an!
totally unfounded speculations that the Pakistani mili¬
tary dictatorship in future could stand fora kind of
stability at all in this part of the world.’ “
The Pdlavar Weekly of Ghana on July 8, came out with
the news story that :
“On March 15, I k 71 under cover of darkness, one of
the most gruesome crimes in the historv of mankind
was perpetrated by a blood-thirsty military junta
against a whole population of seventy five million,
constituting the majority of the people of Pakistan.
“Many newspaers, reported for their objectivity, have
come uuc with documentary evidence in the form of
phonographs and eye witness reports of one of the
greatest genocide exercise in the annals of mam
“According to all available evidence and report the
awful genocide which was deliberately planrrd and
executed ruthlessly by the West Pakistan armv and
has been marked, among other unspeakable atrocities,
by the systematic ■ decimation of East Bengal’s
intellectuals and professions, including eminent profe-
W. /kid.. 406-4 7.
ilists, doctors, stude
still continuing
“The only crime of Sheikh Mujih and his party was
that they sought through normal process of demo¬
cracy. to end the erstwhile colonial status of their
part of the country and restore it to a position of
respectability within a united Pakistani federation.
“For humanitarian reasons India which has always
been regarded by Pakistan as its enemy number one,
has despite its own population explosion and sacri¬
fices done whatever it could do to house, shelter
and feed the vist number of refugees from East
Pakistan.
“The number of refugees fleeing East Pakistan into
India is still increasing at a rate of fifty thousand a
day. If a government can force millions of its people
to seek protection in another country, one wonders
what earthly or heavenly right that Government has
to remain in power any longer.
“As the situation is reported to be. there seems little
hope of East Pakistan refugees in India being able to
return to their own homes. ”
An Indian Press Correspondent, Chand Joshi of The
Hindustan Times. New Delhi narrated the bitter record of
the Pakistani Army’s barbarities in Bangla Desh as follows :
The tears are not yet dry. The stench of death still
fills the nostrils as one walks through many of Dacca’s
streets. Perhaps all this is imagination? One could
only pinch oneself to find out whether it was just a
cruel night-mare or whether all this was reality.
On the Nawnbpur Road a pregnant girl ran around,
her hair dishevelled, her saree torn and shouting “Na,
na. na” (no.no.no). She no longer has any name.
She is mad. But a few months ago. she had a face, a
figure and a name. She was a Dacca College student
She was, that is. till the Pakistani Army took her
id. for she cannot talk any tnoi
at of people approaching her i
uts “Na. na. na.” An India
ild ask her what
re. Only at the
she shrinks back
n Army oflicer
118
WAR TRIAL IN BANGLA DESH
She^might even be cured. Most of them never bad
At the Dacca Cantonment young girls were rounded
up and then made to fall in naked. They tried to
hide their breasts with their hair. The mocking
soldieis would brush their hair aside with a “Dekhnay
do” (Let us see).” The soldiers would fall into com¬
pany formations and choose the girls. Innumerable
times, innumerable soldiers chose the girls till they
collapsed. They would then mockingly cut off their
breasts, or baronet them through the vagina. Those
who were liked particularly would be kept for a repeat
performance every hour of the day. Mcst of them
who were recovered were pregnant. A majority bad
been killed. At Brahmanbaria the Indian Army
recovered nude women, dead or almost senseless with
continued rape, from trenches.
Apart from Dacca, in Jessore. Faridpur. Tangail and
almost everywhere the same thing happened. In a
village near Dacca, a father was asked at bayonet
point to rape his daughter. When he refused the
soldiers raped the girl in her father’s presence The
soldiers then bayoneted his daughter to death. Merci¬
fully they hanged her father also for the crime of
ref ishing to obey the orders. The story was repeated
in exactly the same manner by ar least half a dozen
persons from the village. It could perhaps be true.
The living proof of atrocities committed by the
occupation forces was rbe recovery of ti e bodies of
intellectuals who were killed on Dec. 15. a day before
the surrender. They included prominent doctors,
intellectuals and journalists, including the BBC’s
representative in Dacca.
People may exaggerate, but the evidence of one’s eyes
cannot lie. Burnt-out. broken localities, bullet holes
on the walls of houses, the stains of blood all speak
of the enemy’s barbarity. In one such locality, Sakhari
Pati in Dacca, there is not a single house standing.
Massive old buidings were razed to the ground after
being looted Some of rhem were shelled. And what
about their inmates ? “Those who were lucky stayed
in their houses to be buried alive.” Those who ran
out were moved down by machine-gun fire from all
PROBLEMS & QUESTIONS CONCERNING THE TRIAL
119
The law then was simple. If there was an explosion
anywhere, the people within a radius of 500 yard*
were to be punished. A cracker was set off and units
of the Army and Razakars moved in and mowed
down everybody in sight. In villages near the Mirza-
pur industrial area, they shot about 1,000 people on
the suspicion that they belonged to the East Pakistan
Rifles or the East Bengal Regiment. The procedure
was direct. All males available would be rounded up
and shot. They would then turn over the bodies to
see whether there was any identification supporting
their suspicion.
In the Razakar-infested localities of Mohammedpur
and Mirzapur, there were ceremonial sacrifices of
Bengalis. In Sector 12, the quota was fixed at 25 a
day. People were picked up and their throats slashed
till they bled to death. We met a man from that area.
Of a family of 19 members, be was the only one who
survived. He says nothing any more. He only wants
to get back to search in the local well for the bodies
so that be may give his family members a decent
burial. There are many such wells in the locality.
Nobody drinks water from them since they know that
the bottom is full of bodies. The fish from smaller
rivers have no buyers for the same reason. They had
been fed on corpses. At one point 100 “hilsas”
were being offered for Rs. 2 but nobody would take it.
It was nor only rape and murder. Every single house
was visited one rime or the other. Most of them were
looted. Everything of # value was taken away. ‘‘Wo
safe…almirah kholoy.” the’Razakars would say point¬
ing out the fridge. And they would take away even
rhe eatables. In one instance, they looted a house and
took away brass utensils thinking that they were
made of gold. They then went to a goldsmith and
asked for cash in exchange. When the goldsmith told
them that they had brought brass and not gold they
beat him up mercilessly. 11
Mohammad Shohidul Islam, resident of 13 Free School
Street, Dhanmandi, Dacca, narrated the following incident :
“It is the incident of 10th October 1971. From the
liberated area of Moniondi, 3 miles South-East of
120
lR trial in bangla desh
Akhaura we started (or our home which lay. in occu¬
pied Zone. We boarded in a boat on our way to
Dacca through Bhangura. There were 8 more persons
on board that boat plied by 7 boatmen. Five of the
unfortunate persons on board the boat were returned
from India on the announcement of “amnesty” by
General Yahya. One was an old man aged about 65
years, by name Asgar Ali of village Sridharpur.
Omar, Gouranga. Bachchu. Promode and Rafique and
three brothers of Dacca. They were also shot dead
mercilessly before our very eyes. We reached
Ghatiara village at about 11.30 P.M. From darkness
came the command: “unless you near the boat you
will be shot at”. The boat had to be plied near the
muzzle of a battalion of rifles. Then all the persons
on board the boat were lined up. The rersons were
searched and cash, watches, ere. whatever found
were snatched away and all were tied with rope
with hands on their back, not a word was said, no
question was put. One captain. Mr. Julfiquar Ali by
name, came and looked at the faces of all and whis¬
pered something to his companion army. We wanted
to know why we were detained but we were not
allowed to utter a single word, we were peremptorily
gagged by sings and utterances.
“We were kept tied from behind throughout the
whole night. A little before sun-rise, were led in the
boat and two other big boats were plying towards us
through that course, with males, females and children,
about one hundred in number. No articulate voice to
stop those boats was heard. The Army Captain with
his hands signalled- something to his assistant and then
at once began the showers of bullets. Many bullets
whizzed the upper ends of our hair on heads. Within
a span of ten seconds the passengers of the two boats
lost their lives and we too gazed blank and were
dumb-founded. Teais rolled down our cheeks.
Unknown fears overcame us. Every moment we
thought that L.M.G. firings were touching us too.
“We were huddled in godown No. 1 of Akhaura Rail¬
way Station with only one collapsible gate each on the
front and on back without any window. It was
extremely hot and on being ushered therein we felt
simple burning and frying. The nuisance of pigeon
made an half-inch thick carpet of the godowns._
Innumerable holes appeared in the walls of the
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 121
godown and in some place* we noticed fresh cement-
plaster placed.
That 65 years old man also was classed in the Group
of Refugee” by the army. The captain simply express¬
ed that the ‘ Refugees” will be shot dead and the
smugglers will be sentenced to 14 years’ rigorous
imprisonment and after that the captain left and with
terrible sound the front gate was closed.
“Suddenly at 8 A.M. with a great sound the gate was
opened and we. the group of Refugees or prisoners,
were taken behind that godown where a great
number of army people were present. At our sight,
those army people became jubilant just like ferocious
animals at the sight of their prey. Random interroga¬
tions and questions were put to us and we were beaten
Indiscriminately with iron rods, long metal whips
and other instruments of physical torture. These
ferocious army pounced upon us. We had no voice
at all. I lost my consciousness and when I regained
the same it was dead of night. I simply growned in
darkness and there was pain all over the body. I was
devoid of movement and sobbed with the minimum
of noise. It occurred to me that I was not ever
beaten even by my parents. Days rolled on in tbe
midst of such untold miseries and rortures throughout
the day and night. There was no meal and we were
given one rotten bread every 36 or 48 hours. Even
water was not available to us. At an interval of 36
or 48 hours only one-eighth of a glass of water was
given to us. Within a week the number of the
prisoners mounted to 60. Some were arrested and
taken from their houses while in sleep, some were
arrested from the markets and some from their
paddy-field. They were all from the neighbouring
villages of Akhaura.
“Our body was smeared with the paste of the mixture
of sweat and secretion of the pigeons and we used to
sleep in this condition. Words and language fail to
describe the magnitude of our condition created by
such torture—physical and mental and evend eath was
considered as far better than and preferable to such
torments and torture.
“We spent 22 days in that dark godown and in the
evening of 1st November 1971, one Punjabi Quarter
Mastet with a register came to the prison and entered
122
WAR TRIAL IN BANGLA DESH
our names there and told us that next morning we
will be released. We gave our assumed name and
addresses as before.
Suddenly the heart rending wail attracted our attention
and found the same as that of small boy Bachchu who
used to adore me and would always love to talk with
me and described all bis sorrows and happiness to me.
On query the reason learnt was that his name was
not noted and also the names of Promcde, Amar. and
Gouranga—all Hindus by religion. It was taken for
granted that they would be killed. There was no
word with us to console Bachchu. Suddenly at
II P.M. the gate of the prison (godown) was opened
and we all were roped and the happiness of the even¬
ing disappeared and gloom came instead. We appre¬
hended that all cf us will be killed soon. But after
departure of the train, we were all again unroped.
Next early morning amongst us, 45 in number, again
were roped and were told that on being taken to the
Police Station, we would be released.
“Those 4 Hindus and the brothers of Dacca were not
roped. Those roped were taken out and we were
told by the Punjabi Quarter Master that we would
not be taken to Police Station but we would be
released from there direct.
“Those 45 roped in prisoners were shot dead, one and
all.” 52
Mohamedullah Chowdhury, Chief Sub-editor. Daily
Ittefaq stated :
“At about 4 p.m. on the 26tb. a Patton tank came
up and took up position on the other side of the
road facing the Ittefaq office. First they machine-
gunned the board on which the name of the paper
was written. After the journalists on the first
floor came out to see what was happening. They
understood at the sight of the tank and fell flat
on the floor and crawled back to the newsroom.
Just at this moment, a canteen boy who was hiding
somewhere on the first floor also came out to find
out what was happening and had hardly looked out
22. Quoted irom Hov Pakistan Violated Human Ri,hts ,n Bar,,la Deri,.
Soma Testimonies (Iuued under ihc nutpicet ol the Indian Council
ot World Afiain. New Delhi. 1972). pp. 1-5.
PROBLEMS » QUESTIONS CONCERNING THE TRIAL 123
when he was machine-gunned on the forehead and
died on the spot. Hearing this shot, a peon named
Shamshul who was hiding on the ground floor also
came out and another shot hit him on the chest and
he died.” 23
Ali Karim, son of late Abdul Malik, a section officer in
the Ministry of Finance, Govt, of Islamabad stated •
“I witnessed in the late June 1971 a boy of class IX
aged about 12 to 13 years physically lifted and carried
away from his house at Magura by the West Pak Army
and killed mercilessly. His parents were denied the
privilege of the delivery of the dead body of the boy
to his widowed mother and the military officer ex¬
pressed openly : “You bastard, you do not deserve
human burial—dog shall feast on your dead bodies.”
The name of the boy was Lutfur Rehman who used
to live with his widowed mother in eastern sector
of the town. The boy was the only child of the un¬
fortunate widow.
“In late September 1971 a graduate teacher of Magura
Girls’ High School, aged 25 years. Helena by name
was forcibly lifted, raped and killed by the brute
Military Sepoy and her dead body was tied with a
Military vehicle and dragged along and paraded
throughout the town of Magura and her dead-body
thereafter was thrown away near the Dam of River
Navaganga for public exhibition. The fate of her
only child is still unknow and untraced.
“In or around the fag end of April 1971 the West
Pakistani Army taided Benodepur village, 6 km.
east of Magura town, looted all the merchandise,
stocks cf jute, rice, paddy, oilseeds, etc. and burnt the
entire market and on that day alone killed about 24
men there and exhibited their dead bodies around the
Ferry Ghat of Benodepur Bazar on the bank of
Navaganga River.
“I went to Dacca from Magura in early July 71 by
road and saw along the route of 75 km. debris of
destroyed houses, the famous markets of Goalkunda
and Aricba. on the two sides of River Padma, in
demolished condition and beyond recognition. The
23. Ibid . p. 7.
124
TRIAL IN BANGLA DESH
only structure that could be seen there and the lone
one was tbe Army camps. From Mirpur to New
Market of Dacca I found ruins and remnants of
factories, houses etc. along the read side.
“At Dacca I saw young men invariably bring picked
up by the army from the residential areas during
nightly raids and nobody beard of them afterwards
and no trace of any such unfortunate youngmen could
be made.
“At Boalmari in Faridpur District I saw in July 1971
in the Matriculation Examination Centre only 10% of
the candidates, bath boys and girls. When these
examinees completed tbe examination, they were lined
up by the army and shot dead and their dead bodies
could be visible in the nearby ditches of the Examina¬
tion Centre.
‘In June 1971 I saw the army shooting dead the
weeding farmers in the corn fields with straw hats
on their heads in and around Magura-Langalbond
Road.”’*
Piarul Haque. a student of Jagannath College, Dacca des¬
cribed the atrocities of the Pakistain Army as follows :
“Finding it impossible to remain alive in Bangladesh I
have left Dacca city where I was a student of Jagan¬
nath College. I crossed over to India for safety. I
have no definite address as yet although 1 am posting
this letter from Agartala where I have taken the refuge
just yesterday.
“At 11 a. m. on 11. 5. 1971 the Pak troops caught me
near Baitul Mukarram in the city of Dacca and
examined me physically to see whether I was a Muslim
or not and then took me at Dacca Cantonment and
detained me in a room where there were filty others all
tied up legs and hands. Next moming at 10 a. m. the
troops presented me and two others before a Punjabi
Major of the Army who asked me again if I was a
Hindu or Muslim and if Muslim whether I was a
student. Uuder his order I and thirty others were tied
hands and feet and made to lie in an open yard under
the sun with faces turned upward. We were kept like
this for 13 days and by night thirty of us were packed
24. Hid., pp. 16.17.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 125
into a small room which could barely accommodate ten
or twelve. During the whole day and night the troops
used to give each of us one piece of atta bread and half
a mug of water and nothing more in a period of 24
hours. If any one wanted more water was kicked with
“On 19.6.1971 we were taken before a Colonel and
while being so taken we saw 30 to 35 young girls all in
tattered clothes with wretched appearance confined in
a room having wirenet window. They tortured them
and the oppression to which unfortunate girls had been
subject to night after night were written large on the
faces. There were good number of boys, youngmen
and students confined in the Cantonment, the troops
used to draw blood from those young people and
throw away their dead bodies in truck loads at Mirpur.
“A Punjabi Army man at the request of a Police
Inspector who was my former acquaintance asked me
to get myself tied with the dead bodies of persons
dying as a result of extraction of blood and carried in
truck and throw n at Mirput. This was the only chance
oITered to me to save myself from sure death. At 12
at night I was so tied and canied with the dead bodies
and thrown into the river at Mirput. With difficulty
I untied myself and moved away as fast as I could and
trekked to Tangail and then to this place and then to
Agartala from where I post this letter in the hope that
though quite late the world conscience at long last be
roused.**
Warid Ali, a Circle Officer (Development) posted at Bager*
para Police Station in Jessore District narrated :
“Incident on 12th or I3th November 1971 needs
mention- With the fall of village in the hands of
“Mukti Bahini” one West Pakistani Sepoy, while
retreating from action, entered the house of one
Mohabbat All of village Tekela, raped his wife and
threw her unconscious body in a nearby ditch.”**
25. laid..
26. Hid «
pp. 24-15.
P. 11.
126 WAR TRIAL IN BANG LA DESH
Parveen Akhtar, a student of Eden Girls College. Dacca
who arrived in Calcutta on Nov. 11, 1971 described her
escape from rape as follows :
I used to lie low because they did net like my singing
Rabindra SangeeL When our college reopened in
September (after being closed following the army
clamp-down in March) no girl could go out. The
military were every where and in some places
grenades were still being thrown, and they seemed to
have destroyed everything. My father was the
Superintendent of Police in Rajshahi. I was in Dacca
on 25th March. They arrested my relatives. My
reason for coming away is that all Bengalis were
suffering mental anxiety, but since all of them could
not come away, most were lying low. I came away
from Dacca and moved from one village to another
as they were attacked. I felt particularly unsafe as
I had taken part in college politics. Some of the
indignities heaped on girls were dreadful, one who
has not seen them cannot believe them. In the next
locality, there was an incident in which both mother
and daughter were raped by the soldiers, they were my
acquaintances in Nakhalpara. When the people of
the locality complained about this to the martial law
authorities, they asked. “Can you point ouc the guilty
■oidiers” and called out those on army duty that even¬
ing for identification. That evening, Nakhalpara
was set on fire. There was molestation of girls on a
wide scale and a great sense of insecurity prevailed.
as I was a young girl, mother and father stayed on
but I and many other young girls were sent from
village to village and I stayed with a cousin in a
village for 2 2 days. I escaped after that, and my
brother saw me to the border. We saw many
refugees on the way. When we found Maneckganj
and Munshiganj had been declared enemy territory
by the Pakistani authorities, we took shelter with a
Hindu family. We started on 11th October and
saw villages being burnt. Then we saw the Mukri
Fouj going about freely, so we first travelled by boat
and then walked through many miles of muddy
water. The CNB main road was particularly dange¬
rous because of frequent military patrols and Rata*
kars who took away money from trekkers. so we
avoided it. My brother saw me into Agartala in
India and then went back. My family sent me alone
PROBLEMS & OUESnONS CONCERNING THE TRIAL 127
to India because I was simply not safe there.””
Father John Hastings from Norwich. U.K.. who served in
Bangla Desh Volunteer Service Corps stared :
“In May. there were occasions when I visited
Husnabad, Taki. Basirhat. called some rimes at the
hospitals round camps. In Bashirhat Hospital there
was one woman who had a foot amptuated from a
bullet wound. She had three children with her, and
all of them were injured, either by a bayonet or a
bullet. They had bandages on, the baby had a bullet
wound across the thighs, and she said her husband
had been shot. She was part of. I think, a very big
group that were coming from Khulna and crossed at
Hakimpur and into West Bengul. And they had been
surrounded on the way. a place called Jaldanga. This
was apparently done with the collaboration of some
villagers along the way stopped the thousands who
were moving in this direction and passed information
to the Army, who came along and then machine-
gunned them. And they say some 400 of them died,
while they were on their way to what they thought
was safety in India. The Army followed them and
other groups to the border of India and were in fact
shooting at them as they were trying to cross on
more than one occasion.
One day the Army came to the river crossing and
seized girls who were about to cross into India by
boat and carried them off. Other women and girls
jumped into the river and tried to swim across and
two were drowned. I spoke to one woman who had
crossed at that time. 1 actually have her photograph
here, and this woman told of her husband being killed
just as he was reaching the border of India.
Then in the Bongaon Hospital. I saw voung men, and
girls also. Some had been bayonetted in the vagina,
and one of them was so demented that she was crying
all the time. They will kill us all, they will kill us
all. It was an incessant refiain that she couldn’t cease
uttering. At that time. “They will kill us all. they
will kill us all.” It was when I saw the mass graves of
200 people and another grave where they said there
were 65 bodies, This was actully at Shikarpur near
the reception centre.
128 WAR TRIAL IN BANGLA DE£H
“I was away for some time, but a Rain on return in
September and on renewed visits ro the border found
again many cases of people arriving without clothes,
or anything at all. The numbers coming then were
perhaps a little less but still seemed to be about 50,000
a week. More recently, there were three girls who
had been raped on their way through Bangla Desb
and they met a Major of the Mukti Fouj and said to
him : this is our condition, we cannot live any longer.
Please spare three bullets for us. Ar.d the Major
felt the only kindness he could do was to shoot them,
so he did. Other women who bad become pregnant
by rape hanged themselves from trees in Husnabad
end others sought and got abortion, others who tried
abortion and failed, killed themselves. And we under¬
stand there is something like 71. pp. 645-654.
PROBLEMS & QUESTIONS CONCERNLNG THE TRIAL 139
them ? To what effect ? How are such offenders to be
brought under jurisdiction ?
Confusion has been deliberately created by the Pakistani
propaganda that India would violate the Genera Conven¬
tions. and the Security Council resolution of December 21,
1971, if it complied with Bangla Desh’s requeit to “hand
over civilian officials and prisoners of war” for trial. This
allegation, as has already been mentioned, was made in a
letter of the Pakistani permanent representative to the UN
Secretary-General as well as the President of the Security
Council. The Indian reply, dated January 14, 1972. however
gloosed over this allegation. As a matter of fact these
allegations of Pakistan have resulted in a doubt and in a
confusion of legal principles. The fundamental question is
this that while the Bangla Desh Government is justified in
international law to try Pakistani war criminals, is India
equally justified to turn over designated war criminals to
Bangla Desh ?
It should be mentioned here that the Geneva Convention of
1949 relating to the treatment of prisoners of war does not
apply in cases of crimes against peace, war crimes and crimes
against humanity. The 1949 Geneva Convention has also
prescribed detailed rules for protection of the life, property
and dignity of prisoners. If enough evidence shows that
prisoners of war are guilty of war crimes, crimes against peace
and humanity they are not entitled to any immunity for
trial. Article 6 of the Geneva Convention is relevant here. The
Geneva Convention of 1949 does not protect war criminals
from trial. It is within the sovereign right of the Bangla Desh
Government to put major war criminals responsible for geno¬
cide and war crimes before competent court or tribunal
which follows established procedure of law in punishing
them. India has already agreed to hand over those prisoners
to Bangla Desh Government against whom a prima facie case
is presented and if such a request is made by it to the Indian
140 WAR TRIAL IN BANGLA DESH
Government to band over the Pakistani prisoners of war
for trial.
Futhermore, defenders of Pakistan might also say that
the acts were perpetrated in Bangla Desh at the time when
the latter was a part of Pakistan and aggression in the inter¬
national sense could not be held to exist. This is the very
question that needs to be clarified by the intended trial of
Pakistani war criminals. In other wordsi the question is : what
is the special connection between the newly formed State of
Bangla Desh and the atrocities committed by Pakistan, and
whether this connection is sufficient to form a basis for
Bangla Desh’s right of punishment of the Pakistani war
criminals. This is not merely a technical question but a wide
and general one.
The connection or “linking point” between the State of
Bangla Desh and the sufferings of the people of Bangla Desh
needs no explanation. The Republic of independent and
sovereign Bangla Desh was proclaimed by Sheikh Mujibur
Rehman on March 26, 1971. The Proclamation of Indepen¬
dence of Bangla Desh point to the very special tragic link
between the crimes committed by Yahya’s regaime and the
the establishment of the new State. Some of the relevant
paras of the Proclamation may be cited here :
“Whereas Gen. Yahya Khan summoned the elect
representatives of the people to meet on Marche,
1971. for the purpose of framing a constitution, and
“Whereas instead of fulfilling their promise :md
while still conferring with the representatives of the
people of Bangla Desh, the Pakistan authouriries
declared an unjust and treacherous war,
“Whereas in the conduct of a ruthless and savage war,
the Pakistani authorities committed and are still
committing numerous acts of genocide and unprece¬
dented tortures, amongst others on the civilian and
unarmed people of Bangla Desh, and
“Whereas the Pakistan Government by levying an
unjust war and committing genocide and by other
repressive measures made it possible for the elected
PROBLEMS * QUESTIONS CONCERNING THE TRIAL 141
representatives of the people of Bangla Desh to meet
and frame a constitution, and give to themselves a
government.”
These words are not mere rhetoric but historical fact,
which the law of nations does not ignore. In view of the
recognition of Bangla Desh by a substantial members of the
family of nations, the connection between the human suffer¬
ings of the people of Bangla Desh and the People’s Republic
of Banagla Desh may constitute an integral part of the law
of nations. It would not be difficult to prove that there
was a subsisting “linking point”, since most of the crimes
committed by the personnel of the Pakistani Army were
perpetrated against the people of East Bengal.
The doctrine of “the linking point” is not new. Hugo
Grotius also based his views on “the right to punish” on a
“linking point” between the criminal and his victim. Grotius
held that “the very commission of the crime creates a legal
connection between the ofTender and the victim such as vests
in the victim the right to punish the ofTender or demand his
punishment. According to natural justice the victim may
himself punish the ofTender, but the organization of society
has transferred that natural right to the sovereign State. One
of the main objects of the punishment is to ensure that the
victim shall not in future sufTer a similar injury at the hands
of the same person or at the hands of others.”* 3
Furthermore the Government of Bangla Desb’s right to
punish the accused Pakistani war criminals can also be derived
from two cumulative sources; a universal source (pertaining
to the whole of mankind), which vests the right to prosecute
and punish crimes of international character in every State
within the family of nations ; and a specific or national source
which gives the victim nation the tight to try any who tries
to assault its existence. This latter basis of criminal jurisdic-
52 . For full test lee, Bangla Desk Documents, pp. 281.282.
5 V The Law of Peace and War (Book 2. Chop. 20). quoted in District
Court Judgment in the Eichmann Cate. International Law Reports
Vol. 36 (1968). p. 51.
142 WAR TRIAL LN BANGLA DESH
tion conforms, according to accepted terminology, to this
principle. The courts of most of the European countries have
recently relied on this principle. 11
The Plea of “Act of State”
Defenders of Pakistan might also seek to deny the
jurisdiction of Bangla Desh by contending that the crimes
attributed to the personnel of Pakistani forces had been
committed in the course of duty and constitute “Acts of
State”, acts for which. Pakistan alone is responsible. This
view is based on the rule par in par cm non habet witwrium,
that is to say. a sovereign Stare has no dominion over, and
does not sit in judgment upon another sovereign State, and
deduces therefrom that a State may not try a person for a
criminal act that constitutes an “act of State” of another
State, without the consent of such other State to that
person’s trial.
It may be recalled that the theory of “act of State” was
repudiated by the International Military Tribunal at Nurem¬
berg, when it said :
“It was submitted that international law is concerned
wirh the actions of sovereign States, and provides no
punishment for individuals, and further, that where
the act in question is an act of Stare, those who
carry it out are not personally responsible, but are
protected by the doctrine of the sovereignty of the
State. In the opinion of the Tribunal, both these
submissions must be rejected. That international
law imposes duties and liabilities upon individuals
as well as upon States has long been recognized. In
the recent case of Ex parte Quirim, before the Supreme
Court of the United States, persons were charged
during the war with landing in the United Stares for
purposes of spying and sabotage.
The late Chief Justice Stone speaking for the Court, said :
“From the very begining of its history this Court has
applied the law of war as including that part of the
54. Set Harvard Rata,95 : alto
■ce Oppenheim. International law. op. cil.i vol. 2 (7th cd ).
pp, 564-569.
TP. Motiia Greenaran, Lee cu. p 496.
152 WAR TRIAL IN BANGLA DESH
Control Council Law No. 10 (elating to principals and
accessories and to superior orders. It will be recalled that the
provisions of that law on superior orders were essentially the
same as those contained in Article 8 of the Charter of the
Nuremberg Tribunal. The nature of the defence of necessity
was explained by the court in a citation from an American
text, as follows : “Necessity is a defense when it is shown that
the act charged was done to avoid an evil both serioos and
irreparable ; that there was no other adequate means of escape:
and that the remedy was not disproportioned to the evil.”’ 1
The principle underlying this defense was also given in a
further citation from the same text, as follows. “Necessity
forcing a man to do an act justifies him, because no man can
be guilty of a crime without the will and intent in bis mind.
When a man is absolutely, by natural necessity forced his will
does not go along with the act.” It was conceded by the court
that, for the doctrine to apply, there must be “a clear and pre¬
sent danger. Such a danger, it held, was constituted by
the Reich reign of terror. The defendants lived
within the Reich. The Reich, through its holders of
enforcement officials and secret police, was always
“present”, ready to go into instant action and to mete
out savage and immediate punishment against anyone
doing anything that could be construed as obstructing
or hindering the carrying out of governmental regula¬
tions or decrees.”
However, the court did find that two of the defendants.
Flick and Weiss, were deprived of the defense of necessity in
relation to certain “slave labor” charges, because they had
taken the initiative in procurring a large manufacturing quota
for one of their plants and an allocation of Russian prisoners
to work there.’* These “active steps”, the court held, “were
not taken as a result of compulsion or fear, but admittedly for
the purpose of keeping the plant as near capacity production
as possible.” Similarly, in The Farben Case (.United States V.
71. Trials of War Criminal/. Vol. VI, p. 1200.
72. Hid..p. 1201
73. IWd., p. 1202.
PROBLtMS & QUESTIONS CONCERNING THE TRIAL 153
Krauch, et al.). the court held that the defense of necessity in
regard to “slave labor” charges did not apply to some of the
defendants in view of the initiative they had taken in estab¬
lishing a synthetic rubber plant adjacent to the infamous
concentration camp of Auschwitz with the specific intention
of utilizing concentration-camp labor. T< The court in The Krupp Case (United States V. Krupp. et al.) put this aspect of the defense in general terms when it stated in relation to compulsion “exclusively due to the ceitainty of loss or injury at the hands of an individual or individuals if their orders were not obeyed.” that, “in such cases, if. in the execution of the illegal act. the will of the accused be not thereby over¬ powered but instead coincides with the will of those fruui whom the alleged compulsion emanates, there is no necessity justifying illegal conduct.”’ 6 The conditions to which the defense of necessity applies were stated in the judgment in the The High Command Case as follows : “To establish the defense of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent peril as to deprive him of freedom to chose the right and refrain from the wrong.” , ‘ It may be that some hint of this concept was contained in the judgment of the Inter¬ national Military Tribunal at Nuremberg, when it stated in regard to the plea of superior orders that “the true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the orders, but whether moral choice was in fact possible The court in The Krupp Case indicated two cases where necessity would not avail as a defense, even though some form of compulsion was present. Those are fear of the loss of property and the case where the evil inflicted on 74. Ibid.. Vol. VIII. p. 1187. 75. Ibid . Vol. IX. p. 1439. 76. Ibid.. Vol. XI. p. 509. 77. Nuremberg Judtmenl, pp >• 53-54.
154
WAR TRIAL IN BANG LA DESH
others was disproportionate to that sought to be avoided.
The court stated :
“The question from the standpoint cf the individual
defendants resolves itself into this proposition. To
avoid losing my job or the control of my property,
I am warranted in employing thousands of civilian
deportees, prisoners of war, and concentration camp
inmates, keeping them in a state of involuntary
servitude, exposing them daily to death or great
bodily harm, under conditions which did in fact
result in the deaths of many of them ; and working
them in an undernourished condition in the produc¬
tion of armament intended for use against the people
who would liberate them and even against the people
of their homelands.
“If we may assume that as a result of opposition to
Reich policies. Krupp would have lost control of his
plant and the officials their positions, it is difficult to
conclude that the law of necessity justified a choice
favourable to themselves and against the unlortunace
victims who had no choice at all in the matter. Or,
in the language of the rule, that the remedy was not
disproportioned to the evil.
“But the extreme possibility hinted at was that Gustav
Krupp and his officials would not only have lost con¬
trol of the plant but would have been put in a con¬
centration camp had they refused to adopt the illegal
measures necessary to meet the production quotas…In
all fairness it must be said that in any view of the
evidence the defendants, in a concentration camp,
would not have been in a worse plight that the
thousands of helpless victims whom they daily exposed
to danger of death and great bodily barm from starva¬
tion and the relentless air raids upon the armament
plants to say nothing of involuntary servitude and the
other indignities which they suffered. The disparity
in the number of the actual and potential victims is
also thought provoking.”’ 9
It may be doubted whether the defense of necessity avails
to anything like the extent to which it was applied in the.
Flick and Farben cases. The judgment in The Flick Case .
in adapting the doctrine of necessity from municipal law to
international law, itself drew attention to the vagueness which
78. Trials of War Criminals. Vol. IX pp. 1444.1416.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 155
surrounds that doctrine in municipal law. It pointed to the
following citation from the same text to which it had pre¬
viously referred :
The law of cases of necessity it not likely to be well
furnished with precise rules: necessity creates the law,
it supersedes rules, and whatever is reasonable and
just in such cases is likewise legal. It is not to be
considered as a matter of surprise, therefore, if such
instituded rule is not to be found on such subject.”’*
It is most unlikely that such a statement represents a
correct view-point in international law. As has been observed
“international law has rejected the doctrine that military
necessity, as expressed by the overpowering exigencies of the
moment, entitles a belligerent or a member of its forces to
ignore the rules of war. It is, therefore, equally incredible
that personal necessity would justify an individual in
dispensing with such law in his own individual case. To accept
such a doctrine would be to overthrow the rule of law in rela-
The asserted doctrine of “necessity” laid down in the Flick
and Farben cases “is not even common today to the various
branches of Anglo-Saxon law, because in modem English law
the doctrine of necessity is a concept which relates more to
tort, that is. civil wrong, than to criminal wrongdoing. Under
English law, for instance, it is clear that nobody may kill an
innocent and unoffending person in order to save his own life
even if that afTord the only chance of preserving his own life.”
In fact, it would appear that, under modem English law,
“necessity provides no defense to crime of the most serious
nature, such as treason and murder, subject to the qualification
regarding the former ofTense that duress has been allowed as
an excuse in the case of a person charged with joining rebels
or rioters in a subordinate role where actual physical compul¬
sion is used or is directly available to make him join, inducing
74. !M.. Vd. IV pp. 1201-1202.
80. Morris Greenspan, op. cit„ p. 499.
156 WAR TRIAL IN BANGLA DESH
in him a present and continuing fear of death or of instant
bodily harm falling little short of death.” 0
It has been righty observed that ‘since superior
orders do not eicuse the commission of an obviously
illegal act, even for a soldier who is subject to stria military
discipline, it would be strange if the plea of necessity could
excuse the commission of such an aa. It is hard to imagine
many cases where a person is subject to greater compulsion
than a soldier on active service in time of war who receives an
order from his superior. Further, the soldier is usually not in
the position to avoid execution of the order by appealing it to
any other authority.” 0 In view of these considerations, it is
difficult to accept the plea of necessity as a defense in a crime
against the laws of war. It would be equitable that the same
standards should apply to the defense of necessity as are
applied to the plea of suporior orders.
The Problem of “The Guilty State of Mind”
As in crimes against peace and conspiracy to commit such
crimes, so in conventional war crimes and crimes against
humanity no man can be found guilty unless it is proved that
he had the knowledge, will, intent, or other mental condition
necessary to commit the particular crime charged. Crime in
international law. as in municipal law. consists of two
elements, “the performance of an act forbidden by law (which
may be a lawful act performed in an unlawful manner) and
the presence in the person executing the act of a guilty or
culpable condition of mind, which is known in law as mens
rea. Both must be present at the sadie time to secure
conviction”®*
What constitute a guilty condition of mind will depend
on the nature of the particular offence. For instance, when
82. Monii Greenspan, pp. M0.501.
83. p. 501.
8-i. Ibid-, op. di. p. 477.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL
157
officials of ao occupying power deliberately and without
lawful justification kill inhabitants of the occupied territory,
that is “murder in violation of the laws of war.*’* But, if in
killing those persons the officials intend to destroy them as
members of a national, ethnical, racial, or religious group,
then the crime is “genocide.” 8 * Generally, a guilty or culp¬
able condition of mind, as has been observed, “consists in
the will or intension to do the act which constitutes a crime
under law, in the knowledge a person has that he is partici¬
pating in such an act; or in a culpable failure to perform a
duty imposed by law. In assessing a person’s intention the
law presumes that every person intends the natural conse¬
quences of his acts.” 8 ’
Concerning culpable failure to perform a duty imposed
by law, it is well recognized in international law. as in
municipal law. that “crime may be committed by ommission
as well as by commission and direction.” This principle was
illustrated by numbers of war-crimes trials after the Second
World War and is probably best exemplified by the judg¬
ments of the Nuremberg Tribunal, the Tokyo Tribunal, the
United State Military Tribunals at Nuremberg, and the
United States Supreme Court in the case of In re Yanulshit^l. s,
In this case the Supreme Court stated :
“It is evident that the conduct of military operations
by troops whose excess are unrestrained by the orders
or efforts of their commander would almost certainly
result in violations which it is the purpose of law to
prevent. Its purpose to protect civilian populations
and prisoners of war from brutality would be largely
defeated if the commander of an invading army could
with impunity neglect to take reasonable measures
for their protection. Hence the law of war presup¬
poses that its violations is to be avoided through tbe
control of the operations of war by commanders
85. Article 46. Higue Regulations. 1907 ; Articles
Convention, W9.
86. Article II. Genocide Convention. 1948.
87. Morris Greensren. op. css. p. 478.
88. See. ital.. pp. 478-489.
i 27. 32. Fourth Get
WAR TRIAL IN BANGLA
who are to some extent responsible for their sub¬
ordinates.”*
The above wording of the United States Supreme Court
in the Yamashita case may be referred in the case of war-
crimes committed by the Pakistani Army. In an interview
with the journalist Oriana Fallacbi. General Niazi said :
“They (the Pakistani soldiers) did what I ordered them to do,
except that night when…the only night in which something
may have happened. It was a purely military operation for
which I am fully responsible. I had to make an example.”* 0
If this interview between General Niazi and the journalist
is any index to the kind of mind which ordered the crimes,
then the evidence of this confession will alone be enough to
implicate the commander of the Pakistani Army for ordering
genocide three days before the surrender.
The Question of Procedure for Trial
Nobody may be punished for war crimes unless be has
been properly tried and convicted. The courts which exercise
jurisdiction in war crimes are usually, and by tradition,
military courts. The term “military court” is generally used
to describe a court constituted under military authority. It
does not necessarily mean that the personnel of the court is
military, although usually military courts are composed of
men holding military rank.
However, war crimes may equally be tried by courts of
competent jurisdiction, other than military, designated by the
belligerent concerned with the trial of such cases. For
instance. Article 84 of Geneva Convention III, 1949, provides:
A prisoner of war shall be tried only by a military
court, unless the existing laws of the Detaining Power
expressly permit the civil courts to try a member of
the armed forces of rhe Detaining Power in respect
of the particular olTence alleged to have keen
committed by the prisoner of war.
89. Cited in Hid., pp. 479-t£0.
90. Quoted in The Indian Expren. New Delhi, April 3, 1973, p. 6.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL
159
This provision applies not only to offenses committed
in captivity, but also to “acts committed prior to capture,”
Hiid, therefore, includes war crimes.
Since each sovereign power stands in the position of a
guardian of international law, and is equally interested in
upholding it, any state has the legal right to try war crimes,
even though the crimes have been committed against the
nationals of another power and in a conflict to which that
state is not a party. It will be remembered, for example,
that each of the four Geneva Conventions of 1949 provide
that each party is under the obligation “to search for persons
alleged to have committed, or to have ordered to be
committed” grave breaches of the conventions, “and shall
bring such persons regardless of their nationality, before its
own courts. It may also, if it prefers, and in accordance
with the provisions of its own legislations, hand over such
persons for trial to another High Contracting Party concerned,
provided such High Contracting Party has made out a prima
facie case.”* 1 This obligation applies not only to parties to a
conflict, but to neutrals. However, the state which has
suffered the war crimes, or against whose nationals the crimes
have been directed, usually undertakes the trial of the offen¬
ders, either alon e or in association with allied states.
It follows from the principle of the universality of jurisdic¬
tion of war-crimes tribunals operating under international
law that they may try accused of any nationality (including
persons of neutral and allied nationality), crimes committed
in any place, and cases involving victims of any nationality.”
However, it is obvious that war crimes which are purely
technical in nature and do not involve moral wrongdoing as
for example, espionage, would only be pursued by the state
injured by the offense. Universality implies universal
reprobation of the offense.
91. Article 49. Geneva Convention I: Article 50. Geneva Convention II:
Article 129. Geneva Convention lit, Article 146. Geneva Convention
VL
91 Law Re porn of Trialj of War Criminal,. Vol
XV. pp. 43.47.
160 WAR TRIAL IN ANGLA DESH
In accordance with the same principle, the members of
the court, whether constituted by a single state or by a
number of states in association, may be drawn wholly or
partly from the victorious state or Btates, neutral states,
or even from vanquished states. Military courts, it will
be noted, function without juries, although the point of
view of a lay jury is often represented in the military
courts by the non-legal members. However, all members of
a military court, whether legal or non-legal. are judges of
both the facts and the law, and the accused must be accorded
a fair trial, and may not be punished without such a trial.
“Any person charged with a crime under international law
has the right to a fair trial on the facts and law.”® 5 However,
except for prisoners of war and the inhabitants of occupied
territory, no specific rules are laid down internationally on
the procedure to be followed by war-crimes courts. In the
past, such courts have generally used a simple version of the
criminal procedure current in the national or military courts
of their’home territories, with some modifications suitable for
local conditions. This course has been followed because the
members of the court are naturally more familiar with the
procedure followed in their own countries than that in the
occupied territory. Ar. example of procedure of this nature
is contained in the British Royal Warrant dated June 14,1945.
setting out Regulations for the Trial of War Criminals
(Army Order 81/45).
On the other hand, the United States military tribunals
which sat at Nuremberg under Control Council Law No. 10
were “not governed by the familiar rules of American criminal
law and procedure” but sat “by virtue of international
authority and can cany with it only the broad principles of
93. Principle V ol the International Law Commiaiioo’s “Ptinciplea of
International Law.” U.N. General Assembly Official Records* Fifth
Session. Supplement. No. 12 (U.N. Doc. A/1316), p. 12 alio Article 10
of Univenal Declaration of Human Righti. December 10,1913.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 161
justice and fair play which underlie all civilised concepts of
law and procedure.”* 4 The procedure of those tribunals was
governed by Ordinance No. 7 of the Military Government
for the U.S. Zone of Germany. Another type of American
military courts which were used for the trial of war criminals
were the United States military commissions. Here again
the courts were not bound by United States rules of proce¬
dure for general courts-martial, bur applied general principles
necessary for a full and fair rrial in the conduct of their
proceedings.* 5
The procedure laid down for tbe International Military
Tribunal at Nuremberg was particularly interesting, because
the court was constituted by four nations (the United States,
the Soviet Union. Britain, and France) ; each contributed
judges to the court, and there were considerable differences
between the criminal procedures followed by some of those
nations in their own courts. The procedure established in
the Charter of that court, to ensure a fair trial for the accused
may, therefore, be regarded as “a common denominator” bet¬
ween varying legal systems and. as such, containing basic
elements for a fair trial under any system of criminal law.
The Charter of the Nuremberg Tribunal stated :
IV. Fair Trial lor Defendants
Article 16. In order to ensure fair trial for the defendants,
the following procedure shall lie followed :
(a) The indictment shall include full particulars specify
in detail the charges against the defendants. A copy of tbe
indictment and of all the documents lodged with the indict¬
ment. translated into a language which he understands, shall
be furnished to the defendant at a reasonable time before
trial.
xai>!vi. p. 49.
S.-, Law Reports of Trials of IT ar Criminals Vol
,1. VII. pp. 108-111.
162 WAR TRIAL IN BANGLA DESH
(b) During anj preliminary examination or trial of a
defendant he shall base the right to give any explanation
relevant to the charges made against him.
(c’ A preliminary examination of a defendant and his
trial shall be conducted in, or translated into, a language
which the defendant understands.
(d) A defendant shall have the right to conduct his own
defense before the Tribunal or to have the assistance of
counsel.
(e) A defendant shall have the right through himself or
through his counsel to present evidence at the trial in support
of his defense, and to cross-examine any witness called by the
prosecution.
V. Powers of the Tribunal and Conduct of the Trial
Article 17. The Tribunal shall have the power
(a) To summon witness to the trial and to require their
attendance and testimony and to put questions to them,
(b) To interrogate any defendant.
(c) To require the production of documents and othet
evidentiary material.
(d) To administer oaths to witnesses,
(e) To appoint officers for the carrying ouc of any task
designated by the Tribunal including the power to have evi¬
dences taken on commisson.
Article 18. The Tribunal shall
(a) Confine the trial strictly to an expeditious hearing of
the issue raised by the charges,
(b) Take strict measures to prevent any action which will
cause unreasonable delay, and rule out irrelevant issues and
statements of any kind whatsoever,
(c) Deal summarily with any contumacy, imposing appro¬
priate punishment, including exclusion of any defendant ot
bit counsel from some or all further proceedings, but without
prejudice to the determination of the charges.
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 163
Article 19. The Tribunal shall not be bound by technical
rules of evidence. It shall adopt and apply to the greatest
possible extent expeditious and non-technical procedure, and
shall admit any evidence which it deems to have probative
value.
Article 20. The Tribunal may require to be informed of the
nature of any evidence before it is offered so that it may rule
upon the relevance thereof.
Article 21. The Tribunal shall not require proof of iacts of
common knowledge but shall take judicial notice thereof. It
shall also take judicial notice of official governmental docu¬
ments and reports of the United Nations, including the acts
and documents of committees set up in the various Allied
countries for the investigation of war crimes, and the records
and findings of military or other tribunals of any of United
Nations.
Article 23. …The function…of chief prosecutor may be
discharged by him personally, or by any person or persons
authorized by him.
The function of counsel for a defendant may be discharged
at the defendant’s request by any counsel professionally
qualified to conduct cases before the courts of his own
country, or by any other person who may be specially
authorized thereto by the Tribunal.
Article 2t. The proceedings at the trial shall take the
following course:
(a) The indiament shall be read in court.
Cb) The Tribunal shall ask each defendant whether he
pleads “guilty” or “not guilty.”
(c) The prosecution shall make an opening statement.
(d) The Tribunal shall ask the prosecution and the defence
what evidence (if any) they wish to submit to the Tribunal
and the Tribunal, shall rule upon the admissibility of any
such evidence.
WAR TRIAL IN BANG LA D£SH
1W
(e) The witness for the prosecution shall he examined
and after that the witness for the defense. Thereafter such
rebutting evidence as may be held by the Tribunal to be
admissible shall be called by either the prosecution or the
(f) The Tribunal may put any question to any witness
and to anv defendant, at any time.
(g) The prosecution and the defense shall interrogate and
may cross-examine any witness and any defendant who gives
testimony.
(h) The defense shall address the court.
(i) The prosecution shall address the court.
(j) Each defendant may makes statement to the Tn-
(k) The Tribunal shall deliver judgement and pronounce
sentence.
Article 25. All official documents shall be produced, and a||
court proceedings conducted, in English, French end Russian,
and in the language of the defendant. So much of the
record and of the proceedings may also be translated into the
language of any country in which the Tribural is sitting,
as the Tribunal considers desirable in the interests of justice
and public opinion.
VI. Judgment and Sentence
Article 26. The judgment of the Tribunal as to the guilt or
the innocence of any defendant shall give the reasons on
which it is based, and shall be final and not subject to review.
Article 27. The Tribunal shall have the right to impose
upon a defendant, on conviction, death or such ether punish¬
ment as shall be determined by it to be just.
Article 28 In addition to any punishment imposed by it
the Tribunal shall have the right to deprive the convicted
person of any stolen property and order its delivery to the
Control Council for Germany.
PROBLEMS a QUESTIONS CONCERNING THE TRIAL lo5
Under Article 29. the Control Council for Germany had
the power to reduce or otherwise niter sentences, hut not to
increase them in severity. While Article ‘(> stated that the
judgment of the tribunal “shall be final and not subject to
review.” the corresponding article in the Charter of the Tokyo
Tribunal (Article 17) did not contain these words, and did not.
therefore, prohibit appeal. On the whole, however, the
procedural provisions of the Charter of the Tokyo Tribunal are
essentially the same as those in the Charter of the Nuremberg
Tribunal. It may also be noted that the judges on the Tokyo
Tribunal were drawn from eleven nations (including three
Asiatic countries. China. India, and the Philippines) and
therefore, represented an even greater diversity of legal
systems than the judges of the four nations represented on the
Nuremberg Tribunal.
The Charter of the Nuremberg Tribunal reduced the rules
of evidence to their simplest expression (Articles 19-21). The
tribunal was bound to admit any evidence relevant to the case
which it deemed to have probative value. It was. however,
in the discretion of the court to assess the weight which it
might attach to any piece of evidence admitted. The provisions
regarding evidence therefore were more closely related to the
Continental systems of law than to the Anglo-Saxon. The
highly technical rules relating to hearsay, peculiar to the latter
systems, were completely omitted.
The Charter of the Tokyo Tribunal (Article 13) and
Ordinance No. 7 of the Military Government of Germany in
the U. S. Zone (Articles VII-X) followed the precedent of
the Charter of the Nuremberg Tribunal in regard to rules of
evidence, although their provisions did elaborate more on this
subject. Article 13 (c) of the Tokyo Charter stated :
Specific evidence admissible. In particular, and without
limiting in any way the scope of the foregoing general rules,
the following evidence may be admitted :
(1) A document, regardless of its security classification and
without proof of its issuance or signature, which appears to
T66 WAR TRIAL IN BANGLA DESH
rhe Tribunal to have been signed or issued by any officer,
department, agency or member of the armed forces of any
government.
(2> A report which appears to the Tribunal to have been
signed or issued by the International Red Cross or a member
thereof, or by a doctor of medicine or any medical personnel,
or by any ocher person who appears to cbe Tribunal to have
personal knowledge of the matcers contained in the report.
(I) An affidavit, deposition or other signed statement.
4. A diary, letter or other document, including sworn or
unsworn statements which appear to the Tribunal to contain
information relating to the charge.
5. A copy of a document or other secondary evidence of
its concents, if the original is not immediately available.
In the British war crimes courts constituted under the
Royal Warrant of July 14, 1945, the prescribed procedure was
generally that of a British field general court-manial, but
dispensed with the rules relating to hearsay. The court was
empowered to take into consideration “any oral statement or
any document appearing on the face of it to be authentic,
provided the statement or document appears to the Court to
be of assistance in proving or disproving the charge.”
Evidence given on affidavit was, therefore, freely admitred at
such trials, even though the person giving tbe affidavit was
not available for cross-examination. In regard to affidavit
evidence, it was suggested by the judge advocate in The
Bel sen Trial that the cdurt should not act on tbe evidence
provided by just one or two affidavits unless they were sup¬
ported in some material particular lending them credence
and belief . V!
In another case, the judge advocate pointed out in regard
to the evidence of accomplices, that such evidence must
96. British Army Order 81/1945. Regulation 8 (i)
97. See War Crimes Trial) Stria, Vol. II. PP- 613. 636.
PROBLEMS & QUESTIONS CONCERNING I HE TRIAL 167
always be regarded with the greatest suspicion and that one
accomplice cannot corroborate another- This was an appli¬
cation of principles of English law. 1 “
An interesting point of evidence was raised in The Dachau
Concentration Camp Trial (Trial of Weiss, el al.). where a
witness refused to answer a question on the ground of pri¬
vilege—that as a government official of the German Reich he
had taken an oath not to divulge such matters. The United
States military-government court did not recognize the
immunity of the witness, apparently on the grounds that,
since that governm;nt no longer existed, there was no interest
to be preserved or injured.”
The International Military Tribunal at Nuremberg clearly
adopted the Anglo-American concept that the burden of
proof rests upon the prosecution and that the guilt of the
accused must be proved beyond a reasonable doubt. The
accused Schacht was acquitted because the tribunal came to
the conclusion that his guilt “had not been established beyond
a reasonable doubt,” 100 and the same words were used in von
Papens’ acquittal. 101 The identical standpoint governed
the proceedings of the Tokyo Tribunal, and was repeatedly
stated in the judgments of the British and American war-
crimes tribunals- However, the proceedings of the various
national tribunals which tried war crimes reflected the
standpoint of their legal systems in such matters. 101
The British military courts established under the Royal
Warrant, for instance, have generally contented themselves
with a bare statement of their verdict. The Nuremberg
Tribunal, the Tokyo Tribunal, and the United States military
93. Mnrri, Greenspan, op. cil. i>. 510.
99 U.S. General Military Government Court, Germany (1915), true
Reports of Trials of War Criminals. Vol. XI, pp. 11-12.
100. Nuremberg Judgment, p. 137.
101. lbid.
102. Motrif Greentpan, op. cu.. p. 511.
163
‘AR TRIAL IN BANGLA DESH
tribunals at Nuremberg which tried war crimes under Control
Council Law No. 10. were all under obligation to give the
reasons on which their judgments were based.
In most cases, the constitution of the various war crimes
tribunals allowed for appeal, or. at an; rate, confirmation by
a higher authority of convictions and sentences. In some
cases both safeguards were present.
There is no doubt that the Bangla Desh Government is
within its right to tTy war criminals on the basis of the
Nuremberg Charter and the Genocide Convention. The
manner of trial is a matter to be decided by the Bangla Desh
Government. The procedures followed in the trials of the
major war-criminals after the Second World War provide
sufficient guidelines for the machinery to be set up for the
trial of war-criminals in Bangla Desh. The Government of
Bangla Desh may either opt for constituting an International
Tribunal, as has been mentioned above, or it can set up its
own national tribunals in accordance with generally recog¬
nised rules of international law.
According to the press reports Bangla Desh has set up
tribunals to try Pakistan’s collaborators. On June 10. 1972.
in a judgment the Sessions Judge and member. Special Tribu¬
nal, Kushtia in Bangla Desh, Mr. R.K. Biswas has condemned
for the first time a collaborator to death. Chikon Ali, the
collaborator was convicted on June 8 under Section 302 of
the Bangla Desh Collaborators (Special Tribunal) Order,
1972. The prosecution story was that, Chikon Ali of village
Mirpur, enlisted himself as a Razakar during the occupation
and actively collaborated with the Pakistani Army, The
defence counsel contended that Ali was never a Razakar,
and that he was a member of the Mukti Babini. The judge
did not accept the defence plea and sentenced Ali to death
by hanging. He was, however, allowed to appeal. 104
PROBLEMS & QUESTIONS CONCERNING THE TRIAL 169
As regards the procedure for the trial of the crime of
genocide. Article 6 of the Genocide Convention refers to an
international penal tribunal which may be formed by the
action of the contracting parties. Moreover, the Genocide
Convention provides that the state in whose territory the
crime of Genocide is committed, that state is competent to
try and punish for the crime of genocide. However, there
has to be proper legislation for such trial. It should be men¬
tioned here that since the Pakistani Army surrendered to the
joint command of Indian and Mukti Bahini forces, for the
trial of crime of genocide, the Bangla Desh Government
alone can have a legislation for the purpose of trial of the
crime of genocide committed by the Pakistani Anuy in
Bangla Desh. such a legislation in India would be ex post
facto legislation, 10 * which is prohibited by Article 20 of the
Indian Constitution. Therefore, India will have to band over
those Pakistani prisoners, who are at present under her
custody, to the Bangla Desh Government for the trial.
The Geneva Convention of 1949 on prisoners of war does not
apply in cases of international crimes such as crimes against
peace and crimes against humanity. It does not protect
prisoners of war from trial if enough evidence shows that
they are guilty of international crimes. 100
105. Mohd. Aail Amin. “GeiuciJe and War Crimea in Ranila Deah.”
National Herald, New Delhi. December 29. 1971. p. 5.
106. Article 6 ol the Geneva Convention. 1949.
4
Concluding Observations
Here, at the end of chis ltud y it would be pertinent to
make final observations, which have already been partly made
in respect of each specific problem concerning the proposed
trial of Pakistani war criminals in the preceding chapter.
There is no doubt about the legal competence of Bangla
Desh to try Pakistani war criminals. The various eye-witness
accounts and press reports cited in this study display before
the whole world, in all details, the extraordinary atrocity
and bestiality of the crimes comm itted by the Pakistani Army
in Bangla Desh.
The Pakistani soldiers can be declared guilty of violating
the recognised rules of warfare.’ In Bangla Desh the Pakistani
Army indulged in a policy of repression, killings and hangings,
massacre of the innocent women and children. Thus Pakistan
violated the famous doctrine of “immunity of non-comba¬
tants’’ and violated various Articles of the Hague Convention
II of 1899 and the Hague Convention IV of 1907.’ The actions
of Pakistani Army cannot be justified under the doctrine of
military necessity and were clearly contrary to the funda¬
mental principles of the United Nations Charter.
~1. See S.K. Mukherjee. Bant la Dt ,h and lnt tr national (Published
by West Dental Political Science Aaiociation. Calcuita. 1971).
Chap. IV, pp. 33-37.
CONCLUDING OBSERVATIONS
171
The Pakistani Army is further guilty of the crime of
genocide in Bangla Desh. From the eye witness accounts
and press reports cited in this study it is apparent that
Yahya’s regime wanted the extermination of Bengalis. The
crime of genocide was first defined by Raphael Lcmkin in
Jiis_^>ook Art’s Rule in Occupied Europe (1944). Genocide,
according to him. is “the methodical extermination of peoples
and populations.”’ At the Madrid International Congress
in 1933 it was moved that the extermination of racial, religious
nr social groups be declared “a crime against international
law.” 1 The United Nations General Assembly also unani¬
mously declared by Resolution 96(1) that genocide is a crime
against the law of nations.
Prima facie. Article 6 of the Genocide Convention appears
to afford support for the applicability of the principle of
universal jurisdiction with respect to the crime in question.
If the United Nations has failed to support universal jurisdic¬
tion for each country, to try the crime of genocide, but has
expressly provided that in the absence of an international
criminal tribunal, those accused of the crime of genocide
shall be tried by a competent tribunal of the state in the
territory of which the act was committed.
According to the resolution adopted on the reports of the
Sixth Committee of the United Nations General Assembly
on January 12.1952. at the 360th Plenary Meeting, it was
urged that all states be guided in regard to the convention
on the prevention and punishment of the crime of genocide
bv the Advisory Opinion of the International Court of
Justice of the 28th May 1951. The 21st session of the Com¬
mission on Human Rights considered the question of punish¬
ment of the war criminals and of persons who have Committed
crimes against humanity. Members of the Commission were of
the opinjon that the prosecution and punishment of war crimes
or crimes against humanity would ensure human rights and
3. international Lav Report,, Vol. 36 (19«). p. 32.
172
IAR TRIAL IN BANGLA
fundamental freedoms, promote confidence amongst people
and contribute to international peace and security. Hie
Commission also considered that the United Nations must
contribute to the solution of a problem raised by war crimes
against humanity which were serious violation of the law of
nations, and it must, in particular study ways and means of
establishing the principles in international law for the pro->
securicn and punishment for such crimes. 6
It is. therefore, incumbent on the United Nations and the
world community as a whole to think without prejudice on
this problem of prosecution and punishment of war crimes
and genocide in Bangla Desh. What has already happened
in Bangla Desh. is nothing short of genocide. If what Hitler
did in Germany and Poland was an example of racial geno¬
cide. if the tragedy of Jallianwala Bagh was an example of
colonial genocide by the use of armed might, what happened
in East Bengal was no less a case of cultural and political
genocide on a scale unknown to history. The whole of East
Bengal became truly a Jallianwala Bagh. hallowed and sancti¬
fied by the blood of patriotic martyrs and innocent defence¬
less people: whose only fault was that they were somewhat
different than those who came to rule them from West
Pakistan. If East Bengal has survived the onslaught and
has been able to confine more than three divisions of West
Pakistan’s Army to cantonments and towns, it is because tlie
people of Bangla Desh. who laid down their lives at the altar
of freedom to pay the price of liberty in the coin of blood
and sufferings and did not permit the West Pakistan troops
to clamp colonial rule on the 75 million people of East
Bengal. The war crimes and genocide in Bangla Desh evoked
great resentment and anger against the Pakistan authorities
CONCLUDING OBSERVATIONS 173
as well as sympathy and friendliness for the suffering millions
of Bangla Desb. Can any one in his right mind doubt about
the criminality of the acts of the Pakistani Army committed in
Bangla Dash ? The existence of criminal intent (mens rea) in
committing these acts appears to be not lacking. It may be
added here that the crime against the people of Bangla Desh
constitutes the crime of genocide, which is nothing but the
gravest type of crime against humanity or “humanicide”.
Therefote, all that has been said in the Nuremberg principles
about “crimes against humanity” may apply a fortiori to the
crimes against the people of Bangla Desh. These crimes are
written in the blood, in the torrents of blood, which was shed
by the people of Bangla Desh.
The evidence of war crimes and genocide committed by
Pakistani Army in Bangla Desh was mounting and it would
be appropriate to prosecute the offenders. If crimes, during
war as otherwise, go unpunished it would only encourage
more crimes. Crimes during war must be brought to an end
in the interest of law. humanity and justice. One way to do
so is to try war criminals not with vengeance but with justice
and impartiality. The object of punishment, to quote Hugo
Grotius, “may be the good of the criminal, the good of the
victim or the good of the community.”*
The happenings in Bangla Desh underlined two important
lessons which world statesmen would do well to ponder over.
There is an urgent need to devise an effective institutional
machinery to curb violence so that untrammelled cruelty on
the people may not be perpetuated under the shelter of the
convenient excuse of domestic jurisdiction.
The other lesson is that the concept of national soverei¬
gnty should not be allowed to be exploited by rulers to
frustrate human welfare and thereby endanger world peace.
It is the moral duty of every sovereign state that in case
national interests clash with the larger human interests, the
Vol. 36 (IMS). P . 27.
174 WAR TRIAL IN BANGLA DESH
former have to be sacrificed in order to ensure world peace and
justice. In the present international situation, this may
appear to be a distant goal. But unless world statesmen take
early steps in this direction, the international peace is likely
to be frequently jeopardised by the unbridled acts of
Today the members of the families of those charged with
war crimes and genocide in Bangla Desh must be clamouring
for the repatriation of the prisoners of war. But then those
who suffered in Bangla Desh and the families of those who
were the victims of the crimes are asking for nothing more
than a just and fair trial of those who committed offences.
India, which played humanitarian role in the war of liberation
of Bangla Desh under the leadership of Mrs. Indira Gandhi,
should remain alive to the legal and moral questions
involved in the prosecution and punishment of war crimes
and genocide in Bangla Desh. The horrible crimes committed
by Yabya’s regime should be revealed to the full gaze of the
world public by holding a fair and just trial of Pakistani war
criminals.
Appendix A
THE HAGUE CONVENTIONS OF 1899 (II) AND
1907 (IV) RESPECTING THE LAWS AND
CUSTOMS OF WAR ON LAND
1899 1907
Convention (II) with res¬
pect to the laws and cus¬
toms of war on land.—
Signed at The Hague, July
29,1899.
His Majesty the German
Emperor. King of Prussia ;
[etc]:
Considering that, while
seeking means to preserve
peace and prevent armed
conflicts among nations, it is
likewise necessary to have re¬
gard to cases where an appeal
to arms may be caused by
events which their solicitude
could not avert;
Animated by the desire to
serve, even in this extreme
hypothesis, the interests of
humanity and the ever incre¬
asing requirements of civiliza-
Con vENTION (IV) respecting
the laws and customs of
war on land. Signed at
The Hague, October 18,
1907.*
His Majesty the German
Emperor, King of Prussia;
[etc.] :
Seeing that, while seeking
means to preserve peace and
prevent armed conflicts bet¬
ween nations, it it likewise
necessary to bear in mind the
case where the appeal to arms
has been brought about by
events which their care was
unable to avert;
Animated by the desire to
serve, even in this extreme
case, the interests of huma¬
nity and the ever progressive
needs of civilization;
Thinking it important. Thinking it important,
with this object, to revise the with this object, to revise the
laws and general customs of general laws and customs of
1. Italics indicate differems between the Conventions ot 1899 and 1907.
17b
1899
war, either with the view of
defining them more precisely,
or of laying down certain
limits for the purpose of mo¬
difying their severity as far
as possible ;
Inspired by these views
which are enjoined at the
present day, as they were
twenty-five years ago at the
time of die Brussels Confer¬
ence in 1874, by a wise and
generous foresight;
Have, in this spirit, adopt¬
ed a great number of provi¬
sions, the object of which is
to define and govern the us¬
ages of war on land.
In view of the high con¬
tracting Parties, these provi¬
sions, the wording of which
has been inspired by the de¬
sire to diminish the evils of
war so far as military neces¬
sities permit, are destined to
serve as general rules of
conduct for belligerents in
their relations with each other
and with populations.
It has not, however, been
possible to agree forthwith on
provisions embracing all the
circumstances which occur in
WAR TRIAL IN BANGLA DESH
1907
war. either with a view to
defining them with greater
precision or to confining them
within such limits as would
mitigate their severity as far
Have deemed it necessary
to complete and explain in
certain particulars the
work of the first Peace Con¬
ference. which, following cm
the Brussels Conference of
1871. and inspired hy the
ideas dictated bv a wise and
generous forethought, adopted
provisions intended to define
and govern the usages of war
-According to :he views of
the high contracting Parties,
these provisions, the wording
of which has been inspired by
the desire to diminish the
evils of war. ns far as military
requirements permit, are in¬
tended to serve as a general
rule of conduct for the belli¬
gerents in their mutual rela¬
tions and in their relations
with the inhabitants.
It has not, however, been
found possible at present to
concert regulations covering
all the circumstances which
arise in practice;
appendices
177
1899
On the other band, it
could not be intended by the
high contracting Parties that
the cases not provided for
should, for want of a written
provisions, be left to the arbi¬
trary judgment of the military
commanders.
Until a more complete
code of the laws of war is
issued, the high contracting
Parties think it right to dec¬
lare that in cases nut included
in the Regulations adopted
by them, populations and be¬
lligerents remain under the
protection and empire of the
principles of international law
as they result from the usages
established between civilized
nations, from the laws of hum¬
anity. and the requirements of
the public conscience .
They declare that it is in
this sense especially that
Articles 1 and 2 of the Regula¬
tions adopted must be under¬
stood ;
The high contracting Par¬
ties. desiring to conclude a
Convention to this efreer, have
appointed as their plenipoten¬
tiaries. to wit :
[Here follow the names of
plenipotentiaries.]
1907
On the other hand, the
high contracting Parties clear¬
ly do not intend that unfore¬
seen cases should, in the abse¬
nce of a written undertaking,
be left to the arbitrary judg¬
ment of military commanders.
Until a more complete
code of the laws of war has
been issued, the high contrac¬
ting Parties deem it expedient
lu declare that, in cases not
included in the Regulations
adopted by them, the ine:its
remain under the protection
arid empire of the principles
of international law. as they
result from the usages establi¬
shed between civilized nati¬
ons. from the laws of huma¬
nity: and tie requirements of
the public conscience ;
They declare that it is in
this sense especially that
Articles 1 and 2 of the Regula¬
tions adopted must be under-
The high contracting Par¬
ties, wishing to conclude a
fresh Convention to this efTecc
have appointed the following
as their plenipotentiaries :
[Here follow the names of
plenipotentiaries.]
178
WAR TRIAL IN BANGLA DESH
1899
Who, after communication
of their full powers, found in
good and due form, have
agreed on the following :
Article 1
The high contracting Par¬
ties shall issue instructions to
their armed land forces, which
shall be in conformity with
the “Regulations respecting
the laws and customs of war
on land” anneied to the pre¬
sent Convention.
Article 2
The provisions contained
in the Regulations mentioned
in Article 1 are only binding
on the contracting Powers, in
case of war between two or
more of them.
These provisions shall
cease to be binding from the
time when, in a war between
contracting Powers, a non¬
contracting Power joins one of
the belligerents.
1907
Who. after having depo¬
sited their full powers, found
in good and due form, have
agreed upon the following :
Article 1
The contracting Powers
shall issue instructions to their
armed land forces which shall
be in conformity with the
Regulations respecting the
laws and customs of war on
land, annexed to the present
Convention.
Article 2
The provisions contained
in the Regulations referred to
in Article 1. as well as in the
present Convention, do not
apply except between contrac¬
ting Powers, and then only if
all the belligerents are parties
to the Convention.
Arlicle 3*
A belligerent party which
violates the provisions of the
said Regulations shall, if the
case demands, be liable to pay
compensation. It shall be re¬
sponsible for all acts commit¬
ted by persons forming part of
its armed forces.
1899
Article 3
The present Convention
■hall be ratified as speedily as
possible.
The ratifications shall be
deposited at The Hague.
1907
Article 4
The present Convention,
duly ratified, shall as between
the contracting Powers, be su¬
bstituted for the Convention
of the 29th July. 7899. respec¬
ting the laws and customs of
war on land.
The Convention of 7899
remains in force as between
the Powers which signed it.
and which do not also ratify
the present Convention.
Article 5
The present Convention
shall be ratified as soon as pos¬
sible.
The ratifications shall be
deposited at The Hague.
The first deposit of ratifi¬
cations shall be recorded in a
procesverbal signed by the Re¬
presentatives of the Powers
which take part therein and by
the Netherland Minister for
Foreign Affairs.
The subsequent deposits of
ratifications shall be made by
means of a written notifica¬
tion, addressed to the Nether¬
land Government and accom¬
panied by the instrument of
ratification.
1890
A proces-verbal shall be
drawn up recording the re¬
ceipt of each ratification, and
a copy, duly certified, shall be
sent through the diplomatic
channel, to all the contracting
Article 4
Non-signatory Powers are
allowed to adhere to (be pre¬
sent Convention.
For this purpose they must
make their adhesion known to
the contracting Powers by
means of a written notifica¬
tion, addressed to the Nether-
land Government, and by it
communicated to all the other
contracting Powers.
1S07
A duly certified copy of
the proces-verbal relative to
the first deposit of ratifica¬
tion s, of the notifications men¬
tioned in the preceding para¬
graph. as veil as of the
instruments of ratification,
shall be immediately sent by
the Nethrrland Government,
through the diplomatic chan¬
nel. to the Powers invited ro
the Second Peace Conference,
as well as to the other Powers
which have adhered to the Co¬
nvention. In the cases contem¬
plated m f/ie preceding para¬
graph the said Government
shall at the same time inform
them of the date on which it
received the notification.
Article 6
Non-signatory Powers may
adhere to the present Conven-
The Power which desires to
adhere notifies in writing its
intention to the Net her land
Government, forwarding to if
the act of adhesion, which
shall be deposited in the archi¬
ves of the said Government.
This Government shall at
once transmit to all the other
Powers a duly certified copy
APPENDICES
181
1899
Article 5
In the event of one of the
high contracting Patties deno¬
uncing the present Conven¬
tion. such denunciation would
not take effect until a year
after the written notification
made to the Netherland
Government, and by it at once
communicated to all the other
contracting Powers.
This denunciation shall aff¬
ect only the notifying Power.
1907
of the notification as well as
of the act of adhesion, men¬
tioning the date on which it
received the notification.
Article 7
The present Convention
shall come into force, in the
case of the Powers which were
a party to the first deposit of
ratifications, sixty days after
the date of the procesverbal of
this deposit, and. in the case
of the Powers which ratify
subsequently or which adhere,
sixty days after the notifica¬
tion of their ratification or of
their adhesion has been recei¬
ved by the Netherland Govern¬
ment.
Article 8
In the event of one of the
contracting Powers wishing to
denounce the present Conven¬
tion, the denunciation shall be
notified in writing to the
Netherland Government,
which shall at once communi¬
cate a duly certified copy
of the notification to all the
Other Powers, informing (firm
of the date on which it was
received.
The denunciation shall
only have effect in regard to
182
TRIAL IN BANGLA DESH
1899
In faith of which the pleni¬
potentiaries have signed the
present Convention and affixed
their seals thereto.
Done at the Hague the
29th July. 18<N, in a single copy, which shall be kept in the archives of the Netherland Government, and copies of which, duly certified, shall be delivered to the contracting Powers through the diplomatic channel [Here follow signatures.] 1907 the notifying Power, and one year after the notification has reached the Netherland Government. Article 9 A register kept by the Netherland Ministry for Foreign Affairs shall give the date of the deposit of ratifi¬ cations made in virtue of Article 5, paragraphs 3 and 4. as well as the date on which the notifications of adhesion (Article 6. paragraph 2). or of denunciation (Article 8. para¬ graph 1) were received. Each contracting Power is entitled to have access to this register and to be supplied with duly certified extracts. In faith whereof the pleni¬ potentiaries have appended their signatures to the present Convention. Done at The Hague, the 28th October. 1907, in a single copy, which shall remain- deposited in the archives of the Netherland Government, and duly certified copies of which shall be sent, through the diplomatic channel, to the Powers which have been invited to the Seccnd Peace Conference. [Here follow signatures.] ‘PEND1CES 133 1899 Annex to the Convention REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND Section I— On Belli¬ gerents Chapter I. On the Qualifi¬ cations of Belligerents Article 1 The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corp. fulfilling the following conditions : 1. To be commanded by a person responsible for his subordinates ; 2. To have a fixed distinc¬ tive emblem recognizable at a distance ; 3. To carry arms openly ; 4. To conduct their opera¬ tions in accordance with the laws and customs of war. the army, or form part of it, they are included under the denomination “army.” Article 2 The population of a terri- toty which has not been occu¬ pied who. on the enemy’s approach, spontaneously take 1907 Annex to the Convention REGULATIONS RESPECTING THE LAW AND CUSTOMS OF WAR ON LAND Section I—On Belli¬ gerents Chapter I.— The Qualifica¬ tions of Belligerents Article l The laws, rights, and duties of war apply not only to armies, bur also to militia and volunteer corps fulfilling the following conditions : 1. To be commanded by a person responsible for bis subordinates ; 2. To have a fixed dis¬ tinctive emblem recognizable at a distance ; 3. To carry arms openly ; and 4. To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it. they are included under the denomination “army.” Article 2 The inhabitants of a ter¬ ritory which has not been occupied, who, on the app¬ roach of the enemy, spontane- 184 1899 up arms to resist the invading troops without having time to organize themselves in accor¬ dance with Article 1, shall be regarded as belligerent, if they respect the laws and customs of war. Article 3 The armed forces of the belligerent parties may consist of combatants and non-com¬ batants. In case of capture by the enemy both have a right to be treated as priso¬ ners of war. Chapter IT.—On Prisoners of War Article 4 Prisoners of war are in the power of the hostile Govern¬ ment. but not in that of the individuals or corps who captured them. They must be humanely All their personal belong¬ ings. except arms, horses, and military papers remain their property. Article 5 Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond WAR TRIAL IN BANGLA DESH 1907 ously take up arms to resist the invading troops without having had time to organize in accordance with Article 1. shall be regarded as bellige¬ rent. if they respect the laws and customs of war. Article 3 The armed forces of the belligerent parties may consist of combatants and non-com¬ batants. In the case of cap ture by the enemy both have a right to be treated as priso¬ ners of war. Chapter II.—Prisoners of War. Article 4 Prisoners of war are in the power of the hostile Govern¬ ment, but not of the indivi¬ duals or corps who capture They must be humanely All their personal belong¬ ings, except arms, horses, and military papers, remain their property. Article 5 Prisoners of war may be interned in a town, fortress, camp, or other place, and bound not to go beyond cer- APPENDICES 1899 certain fixed limits ; hut they can only be confined as an indispensable measure of safety. Article 6 The State may utilize the labor of prisoners of war according to their rank and aptitude. Their tasks shall have nothing to do with the military operations. Prisoners may be authorized to work for the public service, for private per¬ sons. or on their own acco¬ unt. Work done for the State shall be paid for according to the tariffs in force fer soldiers of the national army emplo¬ yed on similar tasks. When the work is for other branches of the public service or for private persons, the conditions shall be settled in agreement with the military authorities. The wages of the prisoners shall go towards improving 185 1907 tain fixed limits ; but they can not be confined except as an indispensable measure of safe¬ ty and only while the circum¬ stances which necessitate the measure continue to exit. Article 6 The State may utilize the labor of prisoners of war according to their rank and aptitude, officers excepted. The tasks shall not be exces¬ sive and shall have no connec¬ tion with the operations of the war. Prisoners may be autho¬ rized to work for the public service, for private persons, or on their own account. Work done for the State is paid for at the rates in force for work of a similar kind done by soldiers of the national army, or, if there are none in force, at a rate ac¬ cording to the work executed. When the work is for other branches of the public service or for private persons the conditions are settled in agreement with the military authorities. The wages of the priso¬ ners shall go towards improv- WAS TRIAL IN BANGLA DESH 1899 their position, and the bala¬ nce shall be paid them at the time of their release, after deducting the cost of their maintenance. Article 7 The Government into whose hands prisoners of war have fallen is bound to main¬ tain them. Failing a special agreement between the belligerents, pri¬ soners. of war shall be tieated as regards food, quarters, and clothing, on the same footing as the troops of the Government which has cap¬ tured them. Article 8 Prisoners of war shall be subject to the laws, regula¬ tions. and orders in force in the army of the State into whose hands they have fallen. Any act of insubordination warrants the adoption, as re¬ gards them, of such measures of severity as may be neces¬ sary. Escaped prisoners, recap¬ tured before they have suc¬ ceeded in rejoining their army, or before quitting the terri¬ tory occupied by the army 1907 ing their position, and the balance shall be paid them on their release, after deducting the cost of their maintenance. Article 7 The Government into whose hands prisoners of war have fallen is charged with their maintenance. In the abesence of a spe¬ cial agreement between the belligerents, prisoners of war shall be treated as regards board, lodging, and clothing 6n the same footing as the troops of the Government who captured them. Article 8 Prisoners of war who shall be subject to the laws, regula¬ tions. and orders in force in the army of the State in whose power they are. Any act of insubordination justifies the adoption towards them of such measures of severity as may be considered necessary. Escaped prisoners who are retaken before being able to rejoin their own army or be¬ fore leaving the territory occupied by the army which ‘VENDICES 187 18i9 tbiit captured them, are liable to disciplinary punishment. Prisoners who. after suc¬ ceeding in escaping are again taken prisoners, are not liable to any punishment for the previous flight. Article 9 Every prisoner of war. if questioned, is bound to dec¬ lare his true name and rank, and if he disregards this rule, he is liable to curtailment of the advantages accorded to the prisoners of war of his Article 10 Prisoners of war may be set at liberty on parole if the laws of their country autho¬ rize it, and, in such a case, they are bound, on their per¬ sonal honor, scrupulously to fulfil, both as regards their own Government and the Government by whom they were made prisoners, the engagments they have con- In such cases, their own Government shall not require of nor accept from them any service in compatible with the parole given. 1907 captured them are liable to disciplinary punishment. Prisoners who. after suc¬ ceeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight. Article 9 Every prisoner of war is bound to give, if he is ques¬ tioned on the subject, his true name and rank, and if he in¬ fringes this rule, he is liable to have the advantages given to prisoners of his class cur¬ tailed. Article 10 Prisoners of war may be set at liberty on parole if the laws of their country allow, and, in such cases, they are bound, on their personal honor, scrupulously to fulfil, both towards their own Government and the Govern¬ ment by whom they were made prisoners, the engage¬ ments they have contracted. In such cases their own Government is bound neither to require of nor accept from them any service incompatible with the parole given. 188 WAR TRIAL IN BANGLA DEil 1899 ARIICLE 11 A prisoner of war cannot be forced to accept his liberty on parole; similarly the hostile Government is not obliged to assent to the prisoner’s request to be set at liberty on parole. Article 12 Any prisoner of war. who is liberated on parole and re¬ captured. bearing arms against the Government to whom he had pledged his honor, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be brought before the courts. Article 13 Individuals who follow an army without directly belong¬ ing to it. such as newspaper correspondents and reporters, rulers, contractors, who fall into the enemy’s hands, and whom the latter think fit to detain, have a right to be trea¬ ted as prisoners of war. provi¬ ded they can produce a certifi¬ cate from the military aut¬ horities of the army they were accompanying. 1907 Article 11 A prisoner of war cannot be compelled to accept his liberty on parole: similarly the hostile Government is not obliged to accede to the re¬ quest of tbe prisoner to be set at liberty on parole. Article 12 Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honor, or against the allies of that Government, forfeit their light to be treated as pri¬ soners of war, and can be brought hefore the courts. Article 13 Individuals who follow an army without directly belong¬ ing to it. such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy’s hands and whom the latter thinks ex¬ pedient to detain, are entitled to be treated as prisoners of war. provided they are in pos¬ session of a certificate from the military authorities of the army which they were accom¬ panying. APPENDICES 1899 Article 14 A bureau for information relative to prisoners of war is instituted, on tbe commence¬ ment of hostilities, in each of the belligerent States, and. when necessary, in the neutral countries cn whose territory belligerents have been re¬ ceived- This bureau is inten¬ ded to answer all inquiries about prisoners of war, and is furnished by the various services concerned with all the necessary information to en¬ able it to keep an individual return for each prisoner of war. It is kept informed of internments and changes, as well as of admissions into hos¬ pital and deaths. It is also the duty of the information bureau to receive 169 1907 Article 14 An inquiry office for pri¬ soners of war is instituted on tbe commencement of hostili¬ ties in each of the belligerent States, and when necessary, in neutral countries which have received belligerents in their territory. It is the function of this office to reply to all inqui¬ ries about the prisoners. It re¬ ceives from the various serv¬ ices concerned full informa¬ tion respecting internments and transfers, releases on parole, exchanges, escapes. admissions into hospital, deaths, as well as other in¬ formation necessary to enable it to mate out and beep up to date an individual return for each prisoner of war. The office must state in this return the regimental number name. and surname, age, place of or¬ igin, rank. unit, wounds, dale and place of capture, intern¬ ment. wounding, and death, as well as any observation of a special character. The indivi¬ dual return shall be sent to the Government of the other bel¬ ligerent after the conclusion of peace. It is likewise the function of the inquiry office to receive 190 WAR TRIAL IN BANGLA DESH 1899 and collect all objects of per¬ sonal use. valuables, letters, etc., found on the battlefields or left by prisoners who have died in hospital or ambulance, and to transmit them to those interested. Article 15 Relief societies for prison¬ ers of war, which are regularly constituted in accordance with the law of the country with the object of serving as the intermediary for charity, shall receive from the bellig¬ erents for themselves and their duly accredited agents every facility, within the bounds of military requirements and ad¬ ministrative regulations, for the elective accomplishment of their humane task. Dele¬ gates of these societies may be admitted to the places of in¬ ternment for the distribution of relief, as also to the halting places of repatriated prisoners, if furnished with a personal permit by the military authori¬ ties, and on giving an engage¬ ment in writing to comply with all their regulations for order and police. 1907 and collect all objects of per¬ sonal use. valuable, letters, etc. found on the fields of battle or left by prisoners who have been released on parole, or ex¬ changed. or who have escaped, or died in hospitals or ambul¬ ances, and to forward them to those concerned. Article 15 Relief societies for prison¬ ers of war. which are properly constituted in accordance with the laws of their country and with the object of serving as the channel for charitable effort shall receive from the belligerents, for themselves and their duly accredited ag¬ ents every facility for the effi¬ cient performance of their humane task within the bounds imposed by military necessities and administrative regulations. Agents of these societies may be admitted to the places of internment for the purpose of distributing te- lief. as also to the halting pla¬ ces of repatriated prisoners, if furnished with a personal permit by the military authori¬ ties, and on giving an underta¬ king in writing to comply with all measures of order and police which the latter may APPENDICES 191 1899 Article 16 The information bureau shall have the privilege of free postage. Letters, money or¬ ders, and valuables, as well as postal parcels destined for the prisoners of war or dis¬ patched by them, shall be free of all postal duties both in the countries of origin and destination, as well as in those they pass through. Gifts and relief in kind for prisoners of war shall be ad¬ mitted free of all duties of entry and others, as well as of payments for carriage by the Government railways. Article 17 Officers taken prisoners may receive, if necessary, the full pay allowed them in this position by their coun¬ try’s regulations, the amount to be repaid by their Govern¬ ment. Article 18 Prisoners of war shall en¬ joy every latitude in the exer¬ cise of their religion, includ¬ ing attendance at their own church services, provided ODly they comply with the regula- 1907 Article 16 Inquiry offices enjoy the privilege of free postage. Letters, money orders, and valuables, as well as parcels by post, intended for priso¬ ners of war, or dispatched by them, shall be exempt fro m all postal duties in the coun¬ tries of origin and destination, as well as in the countries they pass through. Presents and relief m kind for prisoners of war shall be admitted free of all import or other duties, as well as of payments for carriage by the State railways. Article 17 Officers taken prisoners shall receive the seme rate of pay as officers of correspond¬ ing rank in the country where they are detained, the amount to be ultimately refunded by their own Government. Article 18 Prisoners of war shall en¬ joy complete liberty in the exercise of their religion, in¬ cluding attendance at the services of whatever church they may belong to, on the 192 1899 dons for order and police issued by the military autho¬ rities. Article 19 The wills of prisoners of war are received or drawn up on the same conditions as for soldiers of the national army. The same rules shall be observed regarding death cer¬ tificates, as well as for the burial of prisoners of war, due regard being paid to their grade and rank. Article 20 After the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible. Chapter III.—On the Sick and Wounded. Article 21 The obligations of bellige¬ rents with regard to the sick and wounded are governed by the Geneva Convention of the 22nd August. 1864, subject to any modifications which may¬ be introduced into it. WAR TRIAL IN BANGLA DESH 1907 sole condition that they com¬ ply with the measures of order and police issued by the mili¬ tary authority. Article 19 The wills of prisoners of war are received or drawn up in the same way as for soldiers of the national army. The same rules shall be ob¬ served regarding death certifi¬ cates as well as for the burial of prisoners of war. due re¬ gard being paid to their grade and rank. Article 20 After the conclusion of peace, the repatriation of pri¬ soners of war shall be carried out as quickly as possible. Chapter III .—The Sick and Wounded. Article 21 The obligations of bellige¬ rents with regard to the sick and wounded are governed by the Geneva Convention. APPENDICES 193 189->
Section II— On Hostili¬
ties
Chapter I—On Means of
Injuring the Enemy.
Sieges, and Bombardments
Articlf 22
Tlie right of belligerents
to adopt means of injuring
the enemy is not unlimited.
Article 23
Besides the prohibitions
provided by special Conven¬
tions, it is especially prohibi¬
ted—
(a) To employ poison or
poisoned arms :
(b ) To kill or wound trea¬
cherously individuls belonging
to the hostile nation or
army ;
fc) To kill or wound an
enemy who. having laid down
arms, or having no longer
means of defence, has sur¬
rendered at discretion ;
(d) To declare thar no
quarter will be given :
(e) To employ arms, pro¬
jectiles. or material of a
nature to cause superfluous
if) To make improper use
of a flag of truce, the national
flag or military ensigns and
uniform of the enemy, as well
1907
Section II.— Hostilities
Chapter I.—Means of In-
luring the Enemy. Sieges.
and Bombardments
Article 22
The right of belligerents
to adopt means of injuring
the enemy is not unlimited.
Article 23
In addition to the prohi¬
bitions provided by special
Conventions, is is especially
forbidden-
fa) To employ poison or
poisoned weapons ;
(b) To kill or wound tre¬
acherously individuals belong¬
ing to the hostile nation or
(e) To kill or wound an
enemy who, having laid down
his arms, or having no longer
means of defence, has sur¬
rendered at discretion :
(d) To declare thar no
quarter will be given .
(e) To employ arms, pro¬
jectiles. or material calculated
ro cause unnecessary suffering;
(f) To make improper use
of a flag of truce, of the
national flag or of the mili¬
tary insignia and uniform of
194
WAR TRIAL IN BANGLA DESH
1899
as the distinctive badges of
the Geneva Convention ;
(g) To destroy or seize
the enemy’s property, unless
such destruction or seizure
be imperatively demanded by
the necessities of war.
Article 24
Ruses of war and the em¬
ployment of methods neces¬
sary to obtain information
about the enemy and the
country, are considered allow¬
able.
Article 25
To attack or bombardment
of towns, villages, habitations
or buildings which are not
defended, is prohibited.
1907
the enemy, as well as the
distinctive badges of the
Geneva Convention ;
(g) To destroy or seize the
enemy’s property, unless such
destniction or seizure be
imperatively demand by the
necessities of war;
(h) To declare abolished,
suspended, or inadmissible in
a court of lour the rights and
actions of the nationals of
the hostile party.
A billigerent is likewise
forbidden to compel the
nationals of the hostile party
to take part in the operations
of war directed against their
own country, even if they
were in the belligerents’s ser¬
vice before the commence¬
ment of the war.
Article 24
Ruses of war and the em-
loyment of measures neces¬
sary for obtaining informa¬
tion about the enemy and the
country are considered per¬
missible.
Article 25
The attack or bombard¬
ment. by whatever means, of
towns, villages, dwellings, or
buildings which are undefen¬
ded is prohibited.
APPENDICES
1899
Article £6
The Commander of an
attacking force, before com¬
mencing a bombardment,
except in the case of an
assault, should do all he can
to warn the authoiities.
Article 27
In sieges and bombard¬
ments all necessary steps
should be taken to spare aa
far as possible edifices devoted
to religion, art, science, and
charity, hospitals, and places
where the sick and wounded
are collected, provided they
are not used at the same time
for military purposes.
The besieged should indi¬
cate these buildings or places
by some particular and visible
signs, which should previously
be notified to the assailants.
Article 28
The pillage of a town or
place, even when taken by
assault, is prohibited.
195
1907
Article 26
The officer in command
of an attacking force must,
before commencing a bom¬
bardment, except in case of
assault, do all in his power to
warn the authorities.
ARUCLE 27
In sieges and bombard¬
ments all necessary steps
must be taken to spare, as far
as possible, buildings dedica¬
ted to religion, art, science, or
charitable purposes, historic
monuments, hospitals, and
places where the sick and
wounded are collected, pro¬
vided they are not being used
at the time for military pur-
It is the duty of the besie¬
ged to indicate the presence
of such buildings or places by
distinctive and visible signs,
which shall he notified to the
enemy beforehand.
Article 28
The pillage of a town or
place, even when taken by
assault, is prohibited.
196
WAR TRIAL IN BANGLA DESH
1899
Chapter II—On Spies
Article 29
An individual can only be
considered a spy if, acting
clandestinely, or on false pre¬
tences, be obtains, or seeks to
obtain information in the
zone of operations of a belli¬
gerent, with the intention
of communicating it to the
hostile party.
Thus, soldiers not in dis¬
guise who have penetrated
into the zone of operations of
a hostile army to obtain infor¬
mation are not considered
spies. Similarly, the following
are not considered spies: sol¬
diers or civilians, carrying out
their mission openly, charged
with the delivery of despat¬
ches destined either for their
own army or for that of the
enemy. To this class belong
likewise individuals, sent in
balloons to deliver despatches,
and generally to maintain
communication between the
various parts of an army or a
territory.
Article 3o
A spy taken in the act can¬
not be punished without pre¬
vious trial.
1907
Chapter II.—Spies
Article 29
A person can only be con¬
sidered a spy when, acting
clandestinely or cn false pre¬
tences. he obtains or endea¬
vors to obtain information
in the zone of operations of
belligerent, with the intention
of communicating it to the
hostile party.
Thus, soldiers not wearing
a disguise who have pene¬
trated into the zone of opera¬
tions of the hostiie army, for
the purpose of obtaining in¬
formation. are not considered
spies. Similarly, the follow¬
ing are not considered spies :
Soldiers and civilians, carry¬
ing out their mission openly,
entrusted with tae delivery of
despatches intended either for
their own army or for the
enemy’s army. To this class
belong likewise persons sent
in balloons for the purpose
of carrying despatches and,
generally, of maintaining
communications between the
different parts of an army or
a territory.
Article 30
A spy taken in the act
shall not be punished without
previous triaL
1899
Article 31
A spy who, after rejoining
the army to which he belongs,
is subsequently captured by
the enemy, is treated as a pri¬
soner of war, and incurs no
responsibility for his previous
acts of espionage.
Chapter III—On Flags of
Truce
Article 32
An individual is considered
as a parlementaire who is
authorized by one of the belli¬
gerents to enter into commu¬
nication with the other, and
who carries a white flag. He
has a right to inviolability,
as well as the trumpeter,
bugler, or drummer, the flag-
bearer. and the interpreter
who may accompany him.
Article 33
The chief to whom a par¬
lementaire is sent is not obli¬
ged to receive him in all cir¬
cumstances.
He can take all steps
necessary to prevent the par¬
lementaire taking advantage
of his mission to obtain infor-
1907
Article 31
A spy who. after rejoining
the army to which lie belongs,
is subsequently captureJ by
the enemy, is treated as a pri¬
soner of war, and incurs no
responsibility for his previous
acts of espionage.
Chapter III .—Flags of Truce
Article 32
A person is regarded as a
parlementaire who has been
authorized by one of the belli¬
gerents to enter into com¬
munication with the other,
and who advances bearing
a white flag He has a right
to inviolability, as well as the
trumpeter, bugler or drum¬
mer. the flag-bearer and inte-
preter who may accompany
him.
Article 33
The commander to whom
a pailementaire is sent is not
in all cases obliged to receive
He may take all the neces¬
sary steps to prevent the par¬
lementaire taking advantage
of his mission to obtain infor¬
mation.
198
1899
In case of abuse, he has
tbe right to detain the parle-
mentaire temporarily.
Article 34
The parlementaire loses bis
rights of inviolability if it is
proved beyond doubt that be
has taken advantage of his
privileged position to provoke
or commit an act of treason.
Chapter IV—On Capituta-
Article 35
Capitulations agreed on
between the contracting Par*
ties must be in accordance
with the rules of military
honor.
When once settled, they
must be scrupulously observed
by both the parties.
Chapter V.-On Armis¬
tices.
Article 36
An armistice suspends
military operations by mutual
agreement between the belli¬
gerent parties. If its duration
is not fixed, the belligerent
parties can resume operations
at any time, provided always
the enemy is warned within
the time agreed upon, in ac¬
cordance with the terms of the
armistice.
WAR TRIAL IN BANGLA DESH
1907
In case of abuse, he has
the right to detain the parle¬
mentaire temporarily.
Article 34
The parlementaire loses
his rights of inviolability if it
is proved in a clear and incon¬
testable manner that he has
taken advantage of his privi¬
leged position to provoke or
commit an act of treason.
CHAPTEk W.-Capituia-
ART1CLE 35
Capitulations agreed upon
between the contracting Par¬
ties must take into account
the rules of military honor.
Once settled, they must be
scrupulously observed by both
parties.
Chapter V.— Armistices
Article 36
An armistice suspends
military operations by mutual
agreement between tbe bellig¬
erent parties. If its duration
is not defined, the belligerent
parties may resume operations
at any time, provided always
that the enemy is warned
within the time agreed upon,
in accordance with the terms
of the armistice.
APPENDICES
199
1699
Article 37
1907
Article 37
An armistice may be gene¬
ral or local. The first suspends
all military operations of the
belligerent States; the second,
only those between certain
fractions of the belligerent
armies and in a fixed radius.
Article 38
An armistice must be noti¬
fied officially, and in good
time, to the competent autho¬
rities and the troops. Hosti¬
lities are suspended immedia¬
tely after the notification, or
at a fixed date.
Article 39
It is for the contracting
Parties to settle, in the terms
of the armistice, what com¬
munications may be held, on
the theatre of war. with the
population and with each
other.
Article 40
Any serious violation of
the armistice by one of the
patties gives the other party
the right to denounce it, and
even, in case of urgency, to
recommence hostilities at
An armistice may be gene¬
ral or local. The first suspends
the military operations of the
belligerent States everywhere;
the second only between cer¬
tain fractions of the belli¬
gerent armies and within a
fixed radius.
Article 38
An armistice must be noti¬
fied officially and in good time
to the competent authorities
and to the troops. Hostilities
are suspended immediately
after the notification, or on
the date fixed.
Article 39
It rests with the contrac¬
ting Parties to settle, in the
terms of the armistice, what
communications may be held
in the theatre of war with tbe
inhabitants and between the
inhabitants of one belligerent
State and those of the other.
Article 40
Any serious violation of
the armistice by one of the
parties gives the other party
the right of denouncing it,
and even, in cases of urgency,
of recommencing hostilities
immediately.
200
1899
Article 41
A violation of the terms
of the armistice by private
individuals acting on their
own initiative, only confers
the right of demanding the
punishment of the offenders,
and. if necessary, indemnity
for the losses sustained.
Section HI.— On Mili¬
tary Authority over
Hostile Territory
Article 42
Territory is considered
occupied when it is actually
placed under the authority of
the hostile army.
The occupation applies
only to the territory where
such authority is established,
and in a position to assert
itself.
Article 43
The authority of the legi¬
timate power having actually
parsed into the hands of the
occupant, the latter shall take
all steps in his power to re¬
establish and insure, as far as
possible, public order and
safety, while respecting, unless
absolutely prevented. the
laws in force in the country.
WAR TRIAL IN BANGLA DESH
1907
Article 41
A*violation of the terms of
the armistice by private per¬
sons acting on their own
initiative only entitles the
injured party to demand the
punishment of the offenders
or, if necessary, compensation
for the losses sustained.
Section III.— Military
Authority over the
Territory of the Hostile
State
Article 42
Territory is considered
occupied when it is actually
placed under ri>e authority of
the hostile army.
The occupation extends
only to the territory where
such authority has been esta¬
blished and can be excercised.
Article 43
The authority of the legi¬
timate power having in fact
passed into the hands
of the occupant, the latter
shall take all the measures in
his power to restore, and en¬
sure. as far as possible, public
order and safety, while respe¬
cting, unless absolutely preve¬
nted. the laws in force in the
country.
APPENDICES
201
1899
Article 44
Any compulsion of the
population of occupied terri¬
tory to take part in military
operations againit its own
country is prohibited.
Article 45
Any pressure on the popu¬
lation of occupied territory to
take the oath to the hostile
Power is prohibited.
Article 46
Family honors and rights,
individual lives and private
property, as well as religious
convictions and liberty, must
be respected.
Private property cannot
be confiscated.
Article 47
Pillage is formally prohi¬
bited.
Article 48
If. in the territory occu¬
pied. the occupant collects
the taxes, dues, and the tolls
imposed for the benefit of the
State, he shall do it, as far
as possible, in accordance
with the rules in existence
1 Sm thr li« of v.iriou* Powers w
1907
Article 44*
A belligerent is forbidden
to force the inhabitants of
territory occupied by it to
furnish information about the
army of the other bellige¬
rent, or about its means of
ARTICLE 45
It is forbidden to compel
the inhabitants of occupied
territory to swear allegiance
to the hostile Power.
ARTICLE 46
Family honor and rights,
the lives of persons, and pri¬
vate property, as well as reli¬
gious convictions and practice,
must be respected.
Private property cannot
be confiscated.
Article 47
Pillage is formally forbid¬
den.
Article 48
If, in the territory occu¬
pied, the occupant collects the
taxes, dues, and tolls imposed
for the benefit of the State,
he shall do so. as far as is
possible, in accordance with
the rules of assessment and
tians. infra p. 210.
202
WAR TRIAL IN BANGLA DESH
1899
and the assessment in force,
and will in consequence be
bound to defray the expenses
of the administration of the
occupied territory on the same
scale as that by which the
legitimate Government was
bound.
Article 49
If, besides the taxes men¬
tioned in the preceding arti¬
cle. the occupant levies other
money taxes in the occupied
territory, this can only be for
military necessities or the
administration of such terri-
Article 50
No general penalty, pecu¬
niary or otherwise, can be
inflicted on the population on
account of the acts of indivi
duals for which it can not be
regarded as collectively res¬
ponsible.
Article 51
No tax shall be collected
except under a written order
and on the responsibility of a
commander-in-chief.
This collection shall only
take place, as far as possible.
1907
incidence in force, and shall
in consequence be bound to
defray the expenses of the
administration of the occupied
territory to the same extent
as the legitimate Government
was so bound.
Article 49
If, in addition to the taxes
mentioned in the above article,
the occupant levies other
money contributions in the
occupied territory, this shall
only be for the needs of the
army or of the administration
of the territory in question.
Article 50
No general penalty, pecu¬
niary or otherwise, shall be
inflicted upon the population
on account of the acts of indi¬
viduals for which they can
not be regarded as jointly and
severally responsible.
Article 51
No contribution shall be
collected except under a
written order, and on the
responsibility of a commander
The collection of the said
contribution shall only be
APPENDICES
1899
in accordance with the rules
in existence and the assess¬
ment of taxes in force.
For every payment a
receipt shall be given to the
taxpayer.
Article 52
Neither requistions in kind
nor services can be demanded
from communes or inhabitants
except for the necessities of
the army of occupation. They
must be in proportion to the
resources of the country, and
of such a nature as not to
involve the population in the
obligation of taking pare in
military operations against
their country.
These requisitions and ser¬
vices shall only be demanded
on the authority of the
command or in the locality
occupied
The contributions in kind
shall, as far as possible, be
paid for in ready money; if
not. their receipt shall be
acknowledged.
Article 53
An army of occupation
can only take possession of
the cash, funds, and property
1907
effected as far as possible in
accordance with the rules of
assessment and incidence of
the taxes in force.
For every contribution a
receipt shall be given to the
contributors.
Article 52
Requisitions in kind and
services shall not be demanded
from municipalities or inha¬
bitants except for the needs
of the army of occupation.
They shall be in proportion
to the resources of the coun¬
try, and of such a nature as
not to involve the inhabitants
in the obligation of taking
part in military operations
against their own country.
Such requisitions and ser¬
vices shall only be demanded
on the authority of the
commander in the locality
occupied.
Contributions in kind shall
as far as possible be paid for
in cash; if not. a receipt shall
be given and the payment of
the amount due shall be made
as soon as possible.
Article 53
An army of occupation
can only take possession of
cash, funds, and realizabU
WAR TRIAL IN BANGLA DESH
204
1899
liable to requisition belonging
strictly to the State, depots
of arms, means of transport,
stores and supplies, and gene¬
rally, all movable property
of the State which may be
used for military operations.
Railway plant, land tele¬
graphs. telephones, steamers
and other ships, apart from
cases governed by maritime
law, as well as depots of arms
and. generally, all kinds of
munitions of war. even though
belonging to companies or to
private persons, are likewise
material which may serve for
military operations, but they
must be restored at the con¬
clusion of peace, and indemni¬
ties paid for them.
ArtiCi.E 54
The plant of railways
coming from neutral States,
whether the property of those
States, or of companies, or of
private persons, shall be sent
back to them as soon as pos¬
sible.
Article 55
The occupying State shall
only be regarded as admini-
1907
securities which are strictly
the property of the State,
depots of arms, means of
transport, stores and supplies,
and. generally, all movable
property belonging to the
State which may be used for
military operations.
All appliances, whether on
land, at sea, or in the air,
adapted for the transmission
of news, or for the transport
of persons or things, exclusive
of cases governed by. naval
law. depots of arms, and.
generally, all kinds of muni¬
tions of war. may be seized,
even if they belong to private
individuals, but must be res¬
tored and compensation 6xed
when peace is made.
Article 54
Submarine cables connec¬
ting an occupied territory with
a neutral territory shall not be
seized or destroyed except in
tlie cose of absolute necessity.
They must likewise be restored
and compensation fixed when
peace is made.
Article 55
The occupying State shall
be regarded only as adminis-
APPENDICES
1899
st rat or and usufructuary of
the public buildings, real pro¬
perry, forests and agricultural
works belonging to the hostile
State, and situated in the oc¬
cupied country. It must pro¬
tect the capital of these prop¬
erties, and administer it
according to the rules of usu¬
fruct.
Article 56
The property of the com¬
munes. that of religious, chari¬
table. and educational institu¬
tions, and those of arts and
science, even when State pro¬
perty, shall be treated as pri¬
vate property.
All seizure of, and destruc¬
tion, or intentional damage
done to such institutions, to
historical monuments, works
of art or science, is prohibited,
and should be made the subj¬
ect of proceedings.
205
1907
trator and usufructuary of
public buildings, real estate,
forests, and agricultural esta¬
tes belonging to the hostile
State, and situated in the oc¬
cupied country. It must safe¬
guard the capital of these
properties, and administer
them in accordance with the
rules of usufruct.
Article 56
The property of municipa¬
lities, that of institutions de¬
dicated to religion, charity
and education, the arts and
sciences, even when State pro¬
perty, shall be treated as pri¬
vate property.
All seizure of, destruction
or wilful damage done to in¬
stitutions of this character,
historic monuments, works of
art and science, is forbidden,
and should be : made the subj¬
ect of legal proceedings.
205
WAR TRIAL IN BANGLA DESH
1907
Section IV— On the In¬
ternment of Bellig¬
erents and the Care
of the Wounded in
Neutral Countries’
Article 57
A neutral State which re¬
ceives in its territory troops
belonging to the belligerent
armies shall intern them, as
far as possible, at a distance
from the theatre of war.
It can keep them in camps,
and even confine them in for¬
tresses or locations assigned
for this purpose.
It shall decide whether
officers may be left at liberty
on giving their parole that
they will not leave the neutral
territory without authoriza¬
tion.
Article 58
Failing a special conven¬
tion. the neutral State shall
supply the interned with the
food, clothing, and relief re¬
quired by humanity.
1. In 1907 the provisions on this subject. Article 57. 58. 5? and 60, weir
transferred lo the Convention (V) respecting the rights and duties of
neutral Powers and persona in case of war on land as Articles 11. 12,
14 and 15 thereof. No change was made in their rest eicept the •ubiti-
tution of the wold “Power” for the word “State” whetever the latter
appeal* in these article.
APPENDICES
207
At the conclusion of peace,
the expenses caused by the in¬
ternment shall be made good.
Ariicle 59
A neutral State may autho¬
rize the passage over its ter¬
ritory of wounded or sick
belonging to the belligerent
armies, on condition that the
trains bringing them shall
carry neither combatants nor
war material. In such a case,
the neutral State is bound to
adopt such measures of safety
and control as may be neces¬
sary for the purpose.
Wounded and sick brought
under these conditions into
neutral territory by one of the
belligerents, and belonging to
the hostile party, must be
guarded by the neutral State,
so as to insure their not taking
part again in the military ope¬
rations. The same duty shall
devolve on the neutral State
with regard to wounded or
sick of the other army who
may be committed to its care.
Article 60
The Geneva Convention
applies to sick and wounded
interned in neutral territory.
208
WAR TRIAL IN BANGLA DESH
RATIFICATIONS. ADHESIONS AND RESERVATIONS
The 1899 Convention was
Powers on the dates indicated :
> ratified by all the signatory
Austria-Hungary.
Franc*
German??
Treat Rrifa n
Q rf€Cf
T J
J»r?n
.July 12. 1?01
Mnnt.n.frn
N^rhfrlup’if
N „ rii . f
.July 5,1907
P^nin
Portugal- t , …_
, t -. ri .- T Sepremher 4, 1900
4 1000
■Lnumkr 4 KOO
S’
S P Hrn
Turkey..
.June 12. 1907
Adhesions:
p fj •, P
B 1
niilf
China.
Colombia.
.June 12.1907
.January 30.1907
APPENDICES
209
Dominican Republic.
.April 13. 1907
^ nrM
Nicaragua.
.May 17. 1907
.July 20. 1907
p.n,*
Salvador
Switzerland.
.June 20.1907
Vene7 , u , i*
Reservations: none.
The 1907 Convention was ratified by the following signa¬
tory Powers on the dates indicated :
Cuba..
.February 22. 1912
Denmark .
.November 27, 1909
Germany.
.November 27. 1909
Great Britain.
.November 27, 1909
Lu»euil uig. P ‘
Netherlands .
.November 27, 1909
Panama.
210 \
VAR TRIAL IN BANGLA DESH
Salvador
SiatD
Sandro
UnirH
Adhesions:
The following Powers signed the Convention but did not
ratify:
Argentine Republic Montenegro
Bulgaria Paraguay
Chile Persia
Colombia Peru
Dominican Republic Servia
Ecuador Turkey
Greece Uruguay
Italy Venezuela
Reservations. 1
The following Powers made ;
reservations :
Austria-Hungary
Germany
Japan
Montenegro
Turkey
1. All the** ttacrrations weie made a
Appendix B
CHARTER OF THE INTERNATIONAL MILITARY
TRIBUNAL AT NUREMBERG
Constitution of the International Military
Tribunal
Article 1
In pursuance of the Agreement signed on the 9th August.
1945. by the Government of the United Kingdom of Great
Britain and Northern Ireland, the Government of the United
Stares of America, the Provisional Government of the French
Republic and the Government of the Union of Soviet Socialist
Republics, there shall be established an International Military
Tribunal (hereinafter called “the Tribunal”) for tbe just and
prompt trial and punishment of the major war criminals of
the European Axis.
Article 2
The Tribunal shall consist of four members, each with an
alternate. One member and one alternate shall be appoined
by each of tbe Signatories. The alternates shall, so far as they
are able, be present at all sessions of the Tribunal. In case of
illness of any member of the Tribunal or his incapacity for
some other reason to fulfil his functions, his alternate shall take
his place.
Article 3
Neither the Tribunal, its members nor their alternates can
be challenged by the Prosecution, or by the Defendants or
their Counsel. Each Signatory may replace its member of the
Tribunal or his alternate for reasons of health or for other
good reasons, except that no replacement may take place
during a Trial, other than by an alternate.
212
WAR TRIAL IN BANGLA DESH
Article 4
(a) The presence of all four members of tbe Tribunal or
the alternate for any absent member shall be necessary to con¬
stitute the quorum.
(b) The members of the Tribunal shall, before any trial
begins, agree among themselves upon the selection from their
number of a President, and the President shall hold office
during that trial, or as may otherwise be agreed by a vote of
not less than three members. The principle of rotation of
presidency for successive trials is agreed. If, however, a session
of the Tribunal takes place on the territory of one of the four
Signatories, the representative of the Signatory on the Tribunal
shall preside.
(c) Save as a aforesaid the Tribunal shall take decisions
by a majority vote and in a case the vofes are evenly divided,
the vote of the President shall be decisive : provided always
that convictions and sentences shall only be imposed by
affirmative votes of at least three members of the Tribunal.
Article 5
In case of need and depending on the number of the
matters to be tried, other Tribunals may be set up ; and the
establishment; functions, and procedure of each Tribunal
shall be identical, and shall be governed by this Charter.
Jurisdiction and Gfnfral Principles
Article 6
The Tribunal established by the Agreement referred to
in Article 1 hereof for the trial and punishment of the major
war criminals of the European Axis countries shall have the
power to try and punish persons who. acting in the interests
of the European Axis countries, whether as individuals or as
members of organisations, committed any of the following
APPENDICES
213
The following acts, or any of them, are crimes coming
within the jurisdiction of the Tribunal for which there shall
be individual responsibility :
(a) Crimes against peace : namely 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.
(b) War crimes : namely, violations of the laws or cus¬
toms of war. Such violations shall include, but not
be limited to, murder, ill-treatment or deportation
to slave labour or for any other purpose of civilian
population of or in occupied territory, murder or ill-
treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public property, wan¬
ton destruction of cities, towns or villages, or devas¬
tation not justified by military necessity.
(c) Crimes against humanity : namely, murder, extermi¬
nation. 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 Trifcu-
n«l. whether or not in violation of the domestic low
of the country where perpetrated.
Leaders, organisers, instigators, and accomplices partici¬
pating in the formulation or execution of a common plan or
conspiracy to commit any of the foregoing crimes are res¬
ponsible for all acts performed by any persons in execution
of such plan.
Article 7
The official position of Defendants, whether as Heads of
State or responsible officials in Government Departments,
shall not be considered as freeing them from responsibility or
mitigating punishment.
214
TRIAL IN BANGLA DESh
Article 8
The fact that the Defendant acted pursuant to order of
his Government or of a superior shall not free him from res¬
ponsibility, but may be considered in mitigation of punishment
if the Tribunal determines that justice so requires.
Article 9
At the trial of any indivdiual member of any group or
organisation the Tribunal may declare (in connection with
anv act of which the individual may be convicted) that the
group or organisation of which the individual was a member
was a criminal organisation.
After receipt of the Indictment the T ribunal shall give
such notice as it thinks fit that the Prosecution intends to
ask the Tribunal to make such declaration and any member
of the organisation will be entitled to apply to the Tribunal
for leave to be heard by the Tribunal upon the question of
the criminal character of the organisation. The Tribunal shall
have power to allow ot reject the application. If the appli¬
cation is allowed, the Tribunal may direct in what manner
the applicants shall be represented and heard.
Article 10
In cases where a group or organisation is declared criminal
by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial for
membership therein before national, military or occupation
courts. In any such case the criminal nature of the group or
organisation is considered proved and shall not be questioned.
Article 11
Any person convicted by the Tribunal may be charged
before a national, military or occupation court, referred to in
Article 10 of this Charter, with a crime other than of member¬
ship in a criminal group or organisation, and such court may.
after convicting him, impose upon him punishment indepen¬
dent of and additional to the punishment imposed by the
APPENDICES
Tribunal for participation in the criminal activities of such
group or organisation.
Article 12
The Tribunal shall have the right to take proceedings
against a person charged with crimes set out in Article 6 of
this Charter in his absence, if he has not been found or if the
Tribunal, for any reason, finds it necessary, in the interests of
justice, to conduct the hearing in his absence.
Article 13
The Tribunal shall draw up rules for its procedure. These
rules shall not be inconsistent with the provisions of this
Charter.
Committee for the Investigation and Prosecution
of Major War Criminals
Article 14
Each Signatory shall appoint a Chief Prosecutor for the
investigation of the charges against, and the prosecution of.
major war criminals.
The Chief Prosecutors shall act as a committee for the
following purposes :
(a) to agree upon a plan of the individual work of each of
the Chief Prosecutors and his staff ;
(b) to settle the final designation of major war criminals
to be tried by the Tribunal;
(c) to approve the Indictment and the documents to be
submitted therewith;
(d) to lodge the Indictment and the accompanying docu¬
ments with the Tribunal;
(e) to draw up and recommend to the Tribunal for its
approval draft rules of procedure, contemplated by
Article 13 of this Charter. The Tribunal shall have
power to accept, with or without amendments, or to
reject, the rules so recommended.
216
WAR TRIAL IN BANGLA DESH
The Committee shall act in all the above matters by a
majority vote and shall appoint a Chairman as may be con¬
venient and in accordance with the principle of rotation:
provided that if there is an equal division of vote concerning
the designation of a Defendant to be tried by the Tribunal,
or the crimes with which he shall be charged, that proposal
will be adopted which was made by the party which proposed
that the particular Defendant be tried, or the particular charge
be preferred against him.
Article 15
The Chief Prosecutors shall individually, and acting in
collaboration with one another, also undertake the following
duties :
(a) investigation, collection, and production before or at
the Trial of all necessary evidence;
(b) the preparation of the Indictment for approval by the
Committee in accordance with paragraph (c) of
Article 14 hereof;
(c) the preliminary examination of all necessary witnesses
and of the Defendants;
(b) to act as prosecutor at the Trial;
(e) to appoint representatives to carry out such duties as
may be assigned to them;
(f) to undertake such other matters as may appear neces¬
sary to them for the purposes of the preparation for
and conduct of the Trial.
It is understood that no witness or Defendant detained by
any Signatory shall be taken out of the possession of that
Signatory without its assent
Fair Trial for Defendants
Article 16
In order to ensure fair trial for the Defendants, the fol-
1 owing procedure shall be followed :
(a) The Indictment shall include full particulars specifying
in detail the charges against the Defendants. A
APPENDICES
217
copy of the Indictment and of all the documents
lodged with the Indictment, translated into a language
which he understands, shall be furnished to the Defen¬
dant at a reasonable time before the Trial.
(b) During any preliminary examination or trial of a
Defendant he shall have the right to give any expla¬
nation relevant to the charges made against him.
(c) A p reliminary examination of a Defendant and his
Trial shall be conducted in. or translated into, a
language which the Defendant understands.
(d) A Defendant shall have the right to conduct his own
defence before the Tribunal or to have the assistance
of Counsel.
(e) A Defendant shall have the right through himself or
through his Counsel to present evidence at the Trial
in support of his defence, and to cross-examine a ny
witness called by the Prosecution.
Powers of the Tribunal and Conduct
of the Trial
Article 17
The Tribunal shall have the power :
(a) to summon witnesses to the Trial and to require their
attendance and testimony and to put questions to
them ;
(b) to interrogate any Defendant:
(c) to require the production of documents and other
evidentiary material ;
(d) to administer oaths to witnesses ;
(e) to appoint officers for the carrying out of any task
designated by the Tribunal including the power to
have evidence taken on commission.
218
WAR TRIAL IN BANGLA DESH
Article 16
The Tribunal shall :
(a) confine the Trial strictly to an expeditious hearing
of the issues raised by the charges ;
lb) take strict measures to prevent any action which will
cause unreasonable delay, and rule out irrelevant
issues and statements of any kind whatsoever ;
(c) deal summarily with any contumacy, imposing appro¬
priate punishment, including exclusion of any Defen¬
dant or his Counsel from some or all further pro¬
ceedings, but without prejudice to the determination
charges.
Article 19
The Tribunal shall not be bound by technical rules of
evidence. It shall adopt and apply to the greatest possible
extent expeditious and non-technical procedure, and shall
admit any evidence which it deems to have probative value.
Article 20
The Tribunal may require to be informed of the nature of
any evidence before it is offered so that it may rule upon the
Televance thereof.
Article 21
The Tribunal shall not require proof of facts of common
knowledge but shall take judicial notice thereof. It shall
also take judicial notice of official governmental documents
and reports of the United Nations, including the acts and
documents of the committees set up in the various Allied
countries for the investigation of war crimes, and the records
and findings of military or other Tribunals of any of the
United Nations
Article 22
The permanent seat of the Tribunal shall be in Berlin.
The first meetings of the members of the Tribunal and of the
Chief Prosecutors shall be held at’Berlin in a place to be
APPENDICES 219
designat’d by the Control Council for Germany. The first
trial shall be held at Nuremberg, and any subsequent trials
shall be held at such places as the Tribunal may decide.
Article 23
One or more of the Chief Prosecutors may take part in
the prosecution at each Trial. The function of any Chief
Prosecutor may be discharged by him personally, or by any
person or persons authorised by him.
The function of Counsel for a Defendant may be dischar¬
ged at the Defendant’s request by any Counsel professionally
qualified to conduct cases before the courts of his own coun¬
try. or by any other person who may be specially authorised
thereto by the Tribunal.
Article 24
The proceedings at the Trial shall take the following course:
(a) The Indictment shall be read in court.
(b) The Tribunal shall ask each Defendant whether he
pleads “guilty” or “not guilty.”
(c) The Prosecucion shall make an opening statement
(d) The Tribunal shall ask the Prosecution and the
Defence what evidence (if any) they wish to submit to
the Tribunal, and tbe Tribunal shall rule upon ad¬
missibility of any such evidence.
(e) The witnesses for the Prosecution shall be eiamined
and after the witnesses for the Defence. Thereafter
such rebutting evidence as may be held by the Tribu¬
nal to be admissible shall be called by either the
Prosecution or the Defence.
(f) The Tribunal may put any question to any witness
and to any Defendant, at any time.
(g) The Prosecution and the Defence shall interrogate
and may cross-examine any witness and any Defendant
who gives testimony.
(h) The Defence shall address the court.
(i) The Prosecution shall address the court.
220
WAR TRIAL IN BANGLA DESH
(j) Each Defendant may make a statement to the Tribu¬
nal.
(k) The Tribunal shall deliver judgment and pronounce
Article 25
All official documents shall be produced, and all court
proceedings conducted, in English. French, and Russian, and
in the language of the Defendant. So much of the record
and of the proceedings may also be translated into the lan¬
guage of any country in which the Tribunal is sitting, as the
Tribunal considers desirable in the interests of justice and
public opinion.
JUDGMENT AND SENTENCE
Article 26
The Judgment of the Tribunal as to the guilt or the
innocence of any Defendant shall give the reasons on which it
is based, and shall be Anal and not subject to review.
Article 27
The Tribunal shall have the right to impose upon a Defen¬
dant. on conviction, death or such other punishment as shall
be determined by it to be just.
Article 28
In addition to ary punishment imposed by it, the Tribu¬
nal shall have the right to deprive the convicted person of
any stolen property and order its delivery to the Control
Council for Germany.
Article 29
In case of guilt, sentences shall be carried out in accordance
with the orders of the Control Council for Germany, which
may at any time reduce or otherwise alter the sentences, but
may not increase the severity thereof. If the Control Council
for Germany, after any Defendant has been convicted and
sentenced, discovers fresh evidence which, in its opinion.
APPENDICES
221
would found a fresh charge against him, the Council shall
report accordingly to the Committee established under
Article 14 hereof for such action as they may consider proper,
having regard to the interests of justice.
EXPENSES
Article 30
The expenses of the Tribunal and of the Trials shall be
charged by the Signatories against the funds allotted for
maintenance of the Control Council for Germany.
Appendix C
CONTROL COUNCIL
Law No. 10
PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES
against Peace and Against Humanity
In order to give effect to the terms of the Moscow Declara¬
tion of 30 October 1943 and the London Agreement of 8
August 1945, and the Charter issued pursuant thereto and in
order to establish a uniform legal basis in German; for the
prosecution of war criminals and other similar offenders, other
than those dealt with by the International Military Tribunal,
the Control Council enacts as follow :
Article l
The Moscow Declaration of 30 October 1943 “Concerning
Responsibility of Hitlerites for Committed Atrocities” and the
London Agreement of 8 August 1945 “Concerning Prosecution
and Punishment of Major War Criminals of the European
Axis” are made integral parts of this Law Adherence to the
provisions of the London Agreement by any of the United
Nations, as provided for in Article V of that Agreement, shall
not entitle such Nation to participate or interfere in the opera¬
tion of this Law within the Control Council area of authority
in Germany.
Article II
1. Each of the following acts is recognized as a crime :
(a) Crimes against Peace. Initiation of invasions of other
countries and wars of aggression in violation of international
laws and treaties, including but not limited to planning, pre¬
paration; initiation or waging a war of aggression, of a war of
violation of international treaties, agreements or assurances,
or participation in a common plan of conspiracy for the accom¬
plishment of any of the foregoing.
APPENDICES
(fc) War Crimes. Atrocities or offenses against persons or
property constituting violations of the laws or customs or war;
including but not limited to. murder, ill treatment or deportation
to slave labour or for any other purpose, of civilian population
from occupied territory, murder or ill treatment of prisoners
of war or persons on the seas, killing of hostages, plunder of
public or private property, wanron destruction of cities, towns
or villages, or devastation not justified by military necessity.
(c) Crimes against Humanity. Atrocities and offenses
including but not limiled to murder, extermination, enslave¬
ment, deportation, imprisonment, torture, rape, or other
inhumane acts committed against any civilian population, or
persecutions on political, racial or religious ground whether
or not in violation of the domestic laws of the country where
perpetrated.
(d) Membership in categories of a criminal group or
organization declared criminal by the International Military
Tribunal.
Z Any person without regard to nationality or the
capacity in which he acted, is deemed to have committed a
crime as defined in paragraph 1 of this Article, if be was (a)
a principal or (b) was an accessory to the commission of any
such crime or ordered or abetted the same or (c) took a
consenting part therein or (d) was connected with plans or
enterprises involving its commission or (e) was a member of
any organization or group connected with the commission of
any such crime or (f) with reference to paragraph 1 (a) if he
held a high political, civil or military (including General Staff)
position in Germany or in one of its Allies, co-belligerents or
satellites or held high position in the financial, industrial or
economic life of any such country.
3. Any persons found guilty of any the crimes above men¬
tioned may upon conviction be punished as shall be determined
by the tribunal to be just. Such punishment may consist of one
or more of the following :
(a) Death.
2:’4 WAR TRIAL IN BANGLA DESH
(W Imprisonment for life or a term of years, with or with¬
out hard labor.
(c) Fine, and imprisonment with or without hard labour,
in lieu thereof.
(d) Forfeiture of property.
(e) Restitution of property wrongfully acquired.
(f) Deprivation of some or all civil rights.
Any property declared to be forfeited or the restitution of
which is ordered by the Tribunal shall be delivered to the
Control Council for the Germany, which shall decide on its
disposal-
4. (a) The official position of any person, whether as Head
of State or as a responsible official in a Government Depart¬
ment, does not free him from responsibility for a crime or en¬
title him to mitigation of punishment.
(b) The fact that any person acted pursuant to the order
of his Government or of a superior does not free him from
responsibility for a crime, bur may be considered in mitigation.
5. In any trial or prosecution for a crime herein referred
to. the accused shall not be entitled to the benefits of any
statute of limitation in respect to the period from 30 January
1933 to 1 July 1945. nor shall any immunity, pardon or amnesty
granted under the Nazi regime be admitted as a bar to trial or
punishment.
Article III
1. Each occupying authority, within its Zone of Occupa-
(a) shall have the right to cause persons within such Zone
suspected of having committed a crime, including those
charged with crime by one of the United Nations, to be
arrested and shall take under control the property, real and
personal, owned or controlled by the said persons, pending
decisions as to its eventual disposition.
APPENDICES
225
(b) shall report to the Legal Directorate the name of all
suspected criminals, the reasons for and the places of their
detention, if they are detained, and the names and location of
(c) shall take appropriate measures to see that witnesses
and evidence will be available when required.
(d) shall have the right to cause all persons so arrested and
charged, and not delivered to another authority as herein
provided, or released, to be brought to trial before an appro¬
priate tribunal. Such tribunal may in the case of crimes
committed by persons of German citizenship or nationality
against other persons of German citizenship or nationality, or
stateless persons, be a German Court, if authorized by the oc¬
cupying authorities.
2. The tribunal by which persons charged with offenses
hereunder shall be tried and the rales and procedure thereof
shall he determined or designated by each Zone Commander for
his respective Zone. Nothing herein is intended to. or shall
impair or limit the jurisdiction or power of any court or tribu¬
nal now or hereafter established in any Zone by the Commander
thereof, or of the International Military Tribunal established
by the London Agreement of 8 August 1945.
3. Persons wanted for trial by an International Military
Tribunal will not be tried without the consent of the Com¬
mittee of Chief Prosecucors. Each Zone Commander will
deliver such persons who are within his Zone to that com¬
mittee upon request and will make witness and evidence
available to it.
4. Persons known to be wanted for trial in another Zone
or outside Germany will not be tried prior to decision under
Article IV unless the fact of their apprehension has been
reported in accordance with Section 1 (b) of this Article,
three months have elapsed thereafter, and no request for
delivery of the type contemplated by Article IV has been
received by the Zone Commander concerned.
226 WAR TRIAL IN BANGLA DESH
5. The execution of death sentences may be deferred by
not to exceed one month after the sentence has become final
when the Zone Commander concerned has reason to believe
that the testimony of those under sentence would be of value
in the investigation and trial of crimes within or without
his zone.
6. Each Zone Commander will cause such effect to be
given to the judgments of courts of competent jurisdicti on
with respect to the property taken under his control pursuant
thereto, as he may deem proper in the interest of justice.
Article IV
1. When any person in a Zone in Germany is alleged ro
have committed a crime, as defined in Article II, in a country
other than Germany or in another Zone, the government of
that nation or the Commander of the latter Zone, as the case
may be, may request the Commander of the Zone in which
the person is located for his nrrest and delivery for trial to
the country or Zone in which the crime was committed.
Such request for delivery shall be granted by the Commander
receiving it unless he believes such person is wanted for trial
or as a witness by an International Military Tribunal, or in
Germany, or in a nation other than the one making the
request, or the Commander is not satisfied that delivery
should be made, in any of which cases be shall have the right to
forward the said request to the Legal Directorate of the
Allied Control Authority. A similar procedure shall apply
ro witnesses, material exhibits and other forms of evidence.
2. The Legal Directorate shall consider all request,
referred to it, and shall determine the same in accordance
with the following principles, its determination to be com¬
municated to the Zone Commander.
(a) A person wanted for trial or as a witness by an
Tn’ernational Military Tribunal shall not be delivered for
trial or required to give evidence outside Germany, as the
case may be, except upon approval by the Committee of
APPENDICES 227
Chief prosecutors acting under the London Agreement of
8 August 1945.
(b) A person wanted for trial by several authorities
(other than an International Military Tribunal) shall be
disposed of in accordance with the following priorities :
(1) If wanted for trial in Zone (in) which he is, he should
not be delivered unless arrangements are made for his return
after trial elsewhere:
(2) If wanted for trial in a Zone other than that in which
he is, he should be delivered to that Zone in preference to
delivery outside Germany unless arrangements are made for
his return to that Zone after trial elsewhere;
(3) If wanted for trial outside Germany by two or more
of the United Nations, of one of which he is a citizen, that
one should have priority;
(4) If wanted for trial outside Germany by several coun¬
tries, not all of which are United Nations. United Nations
should have priority;
(5) If wanted for trial outside Germany by two or more
of the United Nations, then, subject to Article IV 2 (b) (3)
above that which has the most serious charges against him,
which are moreover supported by evidence, should have
Article V
The delivery, under Article IV of this law, of persons for
trial shall be made on demands of the Governments or Zone
Commanders in such a manner that the delivery of criminals
to one jurisdiction will not become the means of defeating or
unnecessarily delaying the carrying out of justice in another
place. If within six months the delivered person has not
been convicted by the Court of the Zone or country to which
he has been delivered then such person shall be returned upon
‘AR TRIAL IN BANGLA
demand of the Commander of the Zone where the penoo
was located prior to deliver;.
Dane at Berlin. 20 December 1945.
(Signed) Joseph T. McNarney
JOSEPH T. McNARNEY
General, U.S. Army.
(Signed) Bernard L Montgomery
BERNARD L. MONTGOMERY
Field Marshall
(Signed) Louis Koeltz, General d’ Corps de Armee
for PEIRRE KOENIG
General d’Armee
(Signed) Georgi Zhukov
GEORGIZHUKOV
Marshall of the Soviet Union
SUMMARY OF THE FINAL JUDGMENT
INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST
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, < = Jil jJJJ JJi Appendix F THE INDICTMENT (THE EICHMANN CASE) The Attorney-General Adolf, the son of Adolf Karl Eichmann aged 54, at present finder arrest—the accused ADOLF EICHMANN is hereby charged as follows: FIRST COUNT Nature of Offence Crime against the Jewish people, an offence under section 1 (a) (1) of the Nazis and Nazi Collaborators (Punishment) Law. 5710-1950, and section 23 of the Criminal Code Ordin¬ ance. 1936. Particulars of Offence (a) The accused, together with others, during the period 1939 to 1945 caused the killing of Jews, in his capacity as the person responsible for the ezecution of the Nazi plan for the physical extermination of the Jews, known as “the final solution of the Jewish problem.” (b) Immediately after che outbreak of the Second World War the accused was appointed head of a department of the Gestapo in Berlin the duties of which were to locate, deport and exterminate the Jews of Germany and the other Axis countries, and the Jews of occupied areas. That department bore in succession the following distinctive numbers: IV D4; IV B4; IV A4. (c) Instructions for the execution of the plan of extermina¬ tion in Germany were give* by the accused directly to local APPENDICES 233 commander* cf the Gestapo, while in Berlin, Vienna and Prague the instructions of the accused were issued to central authorities (Z entralstelle fur Judische Answanderung) for the direction of which the accused was personally responsible until their liquidation towards the end of the Second World (d) In areas occupied by Germany tbe accused acted through the offices of tbe commanders of the Security Police and the S.D., and through those persons specially nominated to deal with Jewish affairs, who were appointed from the department of the accused in the Gestapo, and were subject to his instructions. (e) In Axis countries and areas conquered by them the accused made use of the offices of the diplomatic representa¬ tives of Germany in each place, in continual co-ordination with the special departments of the German Foreign Ministry in Berlin which dealt with the Jewish Problem. Advisers were appointed in the offices of sucb diplomatic representatives from among members of the department of the accused, who were subject to his instructions. (f) The accused, together with others, secured the ex¬ termination of the Jews, by—among other means—their being killed in concentration camps the purpose of which was mass murder, the more important of such camps being as follows : (1) Auschwitz Millions of Jews were exterminated in this camp from 1941 until the end of January 1945 in gas chambers and in crema¬ toria, and by shooting and hanging. The accused directed tbe commanders of that camp to use gas known as Zyklon B. and in 1942 and 1944 the accused also secured the supply of a quantity of gas for che purpose of exterminating the Jews. (2) Chelmno This extermination camp was operated from November 1941 to the beginning of 1945, and poison gas, among other means of extermination, was used therein. WAR TRIAL IN BANGLA DESH 234 (3) Btlzec This extermination camp was operated from the beginning of 1942 until the spring of 1943. and poison gas, among other means of extermination, was used therein. (4) Sobibor This extermination camp was operated from March 1942 until October 1943 and there were erected there, among other buildings erected for the purposes of extermination, five stone gas chambers. (5) Treblinka This extermination uuup was operated from July. 1942. until November 1943. Also in this camp poison gas, among other means of extermination, was used. (4) Majdaneb This extermination camp was operated from 1941 until July 1944, and poison gas. among other means of extermina¬ tion. was used therein. (g) Immediately after the invasion of Poland by the German army in September 1939. the accused committed acts of expelling, uprooting and exterminating the population, in co-ordination with massacre-squads, recruited from the ranks of German Security Police and the S.S., which were known by the name of Einsatzgruppen (Special Action Groups). Groups of this nature also operated after the invasion of the U.S.S.R. in 1941, and advanced in the wake of the German army. These groups received their orders directly from the Reich Security Head Office (RSHA), and each such group co-operated with the accused in the extermination of the Jews in the area of its jurisdiction. These groups operated in the main on the Sabbath and Jewish Festivals, which days were selected for the slaughter of Jews. These groups extermina¬ ted hundreds of thousands of Jews in the area occupied by Germany in Poland. APPENDICES 235 (h) Before the invasion by the German army of areas of the U.S.S.R. and the Baltic countries Lithuania. Latvia and Estonia, which were annexed to the U.S.S.R, four Einsatz- gruppen co-operated with the accused in the extermination of Jews in the areas referred to, and in that portion of Poland which was annnexed to the U.S.S.R. after September 1939. The activities of such groups included the following acts. inter alia : (1) Einsatzgruppe A During the first four months of the invasion of the areas above-mentioned, by the German army, this Group extermina¬ ted : in Lithuania more than 80.000 Jews ; in Latvia more than 30.000 Jews ; in Estonia about 470 Jews : in Bielorussia more than 7.600 Jews : in the U.S.S.R. about 2.000 Jews : in the District of Tilsit about 5.500 Jews; a total of more than 135.000 Jews. (2) Einsatzgruppe B Up to November 14. 1941. this Group exterminated more than 45,000 Jews in Bielorussia and other areas. (3) Einsatzgruppe C Up to November 3, 1941. this Group exterminated more than 75.000 Jews in the Ukraine, including 33.000 Jews of Kiev. (4) Einsatzgruppe D Up to December 12. 1941. this Group exterminated about 54.000 Jews. (5) During the period from August to November 1942. the Einsatzgruppen referred to above exterminated seme 363.000 Jews. The Einsatzgruppen above-mentioned operated in the same manner and for the same purpose tn the said districts in the extermination of the Jews from June 1941 until 1944, and exterminated hundreds of thousands of Jews in addition to those detailed above. 236 WAR TRIAL IN BANGLA DESH (i) At the end of 1941 the accused ordered the depot ration of thousands of Jews from Germany, Austria and Czechoslo¬ vakia (Protectorate) to ghettoes in Riga. Kovno and Minsk. These Jews were exterminated and, inter alia: (1) A number of such Jews deponed from the Reich (Germany) were murdered on November 30, 1941. together with some 4,000 from Riga; (2) Some 3,500 Jews from Germany who were sent to Minsk as aforesaid pursuant to instructions issued by the accused, were exterminated by an Einsatzgruppe in Bielorussia together with 55,000 more Jew s who were residents of that district. (j) During the years 1940-1945 the accused, together with others, caused the killing of hundreds of thousands of Jews in forced labour camps which were conducted on the lines in concentration camps, and in which such Jews were enslaved, tortured and starved to death in Germany, and in countries occupied by Germany. (k) The accused, together with others, caused the killing of still more hundreds of thousands of Jews during the years 1939-1945 in Germany and the other Axis countries, and the areas occupied by them, by their mass derogation and con¬ centration in ghettoes and other concentration roints under cruel and inhumane conditions, that is to say. in the following countries: Germany; Austria: Italy: Bulgaria; Belgium: U.S.S.R- and the Baltic States. Lithuania, Latvia and Estonia which were annexed to U.S.S.R.. and that part of Poland which was annexed to the U.S.S.R. after September 1939; Denmark; Holland: Hungary; Yugoslavia; Greece; Luxem¬ bourg; Monaco; Norway; Poland; Czechoslovakia: France; Rumania. (l) The accused caused the killing of seme half a million Hungarian Jews by means of their mass deportation to the extermination camp at Auschwitz and other places during the period from March 19 to December 24.1944. at a time when he acted as head of the “Eichmann Special Action Group 1 ‘ (Sondereinsatz- Kommando Eichmann) in Budapest. APPENDICES 237 (m) All the acts mentioned in this count were committed by the accused with the intention of destroying the Jewish SECOND COUNT Nature of Offence Crime against the Jewish people, an ofTence under section 1 (a) (1) of the Nazis and Nazi Collaborators (Punishment) Law. 5710-1950, and section 23 of the Criminal Code Ordi¬ nance. 1936. Particulars of Offence (a) During the period from 1939 to 1945 the accused, together with others, placed many millions of Jews in living conditions which were calculated to bring about their physical destruction, and took steps towards this end in Germany and the other Axis countries, in the areas occupied by them, and in the areas under their de facto control. Duting the period aforesaid, and pursuant to his duties as stated in the first count, and for the purpose of executing “the final solution of the Jewish problem.” the accused committed the following acts in respect of such Jews: (1) Putting them to work in forced labour camps; (2) Sending them to ghettoes and detaining them there: (3) Driving them into transit camps and other concentra¬ tion points; (4) Deporting them, and conveying them in mass trans¬ portations under inhumane conditions. All the said acts were committed by the accused for the same purpose, in the same manner, and in the same places mentioned in the first count. (b) All the said acts were committed by the accused with the intention of destroying the Jewish people. TRIAL IN BANGLA THIRD COUNT Nature of Offence Crime against the Jewish people, an ofTence under section 1 (a) (1) of the Nazis and Nazi Collaborators (Punishment) Law. 5710-1950, and section 2) of the Criminal Code Ordi¬ nance. 1936. Particulars of Offence (a) During the period of the Nazi regime the accused fulfilled certain duties in the Security Service of the S.S. (S.D.) in dealing with Jews, in accordance with the pro¬ gramme of the Nazi Party (N.S.D.A.P.). After the outbreak of the Second World War these duties were combined with the duties of the department in the Gestapo which is des¬ cribed in the first count, at the head of which stood the accused. (b) During the whole of the period aforesaid the accused, together with others, caused serious physical and mental harm to millions of Jews in Germany and the other Axis countries, in areas occupied by them and in areas under their de facto control, in the countries detailed in the first count. (c) The accused, together with others caused the serious harm aforesaid by the enslavement, starvation, deportation and persecurion of the said Jews and by tbeir detention in ghetroes. transit camps and concentration camps in conditions which were designed to cause their degradation, the deprivation of their rights as human beings and to suppress them and cause them inhumane suffering and torture. (d) The accused, together with others, committed the acts aforesaid through measures the more important of which were as follows : (1) The sudden, mass arrest of Jews without any guilt on their part or judicial decision, and merely by reason of their being Jews, and the torture of such Jews in concentra¬ tion camps such as those at Dachau and Buchenwald; APPENDICES 239 (2) The organisation on the night of November 9-10, 1938, of the mass persecution of some 20,000 Jews from Germany and Austria by arrest, cruel beatings, causing seri¬ ous bodily harm, and torture in concentration camps; (3) The organisation of the social and economic boy¬ cott of Jews and their designation as a sub-human racial group; (4) The application of the laws known as the ‘Nurem¬ berg Laws’ in order to deprive millions of Jews in all the countries specified in the first count of their human rights, (e) The acts aforesaid were committed by the accused with the intention of destroying the Jewish people. Fourth count Nature of Offence Crime against the Jewish people, an offence under section 1 (a) (1) of the Nazi Collaborators (Punishment) Law, 5710- 1950. and section 23 of the Criminal Code Ordinance, 1936. Particulars of Offence (a) As from 1942 the accused, together with others, devised measures the purpose of which was to prevent childbearing among the Jews of Germany and countries occupied by her. (b) The devising of such measures by the accused, by virtue of his duty as head of the Department for Jewish Affairs in the Gestapo in Berlin, was also designed to advance the “final solution of the Jewish problem.” (c) The measures referred to include; (1) The instruction of the accused to Dr. Epstein who was Head of the Council of Elders in the Concentration Camp of Theresienstadt during 1943/1944. concerning rhe forbidding of births in rhe camp and the interruption of pregnancy by artificial abortion in all cases and at all stages of pregnancy; (2) An order by the German police in the Baltic coun¬ tries in 1942 against Jewish women in the ghetto of Kovno WAR TRIAL IN BANGLA DESH forbidding birth and compelling such women to undergo operations for abortion in all stages of pregnancy; (3) On October 27,1942 in the offices of the accused IV B4 (RSHA) in Berlin, the accused, together with others, devised measures for the sterilisation of the offspring of mixed marriages of the first degree among Jews in Germany and in areas occupied by her in accordance with the fol¬ lowing principles: (aa) The sterilisation of the offspring of the mixed mar¬ riages. Jews or Jewesses, will be performed with their con¬ sent. in return for the favour of their being given the right to remain within the area governed by the German Reich; (bb) The offspring of rhe mixed marriages will be enti¬ tled to choose between sterilisation and deportation to ex¬ termination areas in the East; (cc) It will be suggested by the authorities to the offspring of the mixed marriages to choose deportation ; (dd) Those who choose deportation will be separated according to their sex in order to prevent any further births ; (ee) The sterilisation will be carried out secretly and in a camouflaged manner. (d) In devising the measures aforesaid, the accused inten¬ ded to destroy the Jewish people. FIFTH COUNT Nature of Offence Crime against humanity, an offence under section 1 (a) (2) of the Nazis and Nazi Collaborators (Punishment) Law, 5710- 1950, and section 23 of the Criminal Code Ordinance. 1936. Particulars of Offence The accused, during the period 1939 to 1945. committed, in Germany and other Axis countries, in areas occupied by them and in the areas under their de facto conttol. acts cons¬ tituting a crime against humanity in that, together with others. APPENDICES 241 be caused the murder, extermination, enslavement, starvation and deportation of the civilian Jewish population in those cou ntries and areas. The accused committed those acts whilst functioning in the capacities specified in the first count. SIXTH COUNT Nature of Offence Crime against humanity, an offence under section 1 (a) (2) of the Nazis and Nasi Collaborators (Punishment) Law, 5710-1950. and section 23 of the Criminal Code Ordinance. 1936. Particulars of Offence The accused, in carrying out the acts described in counts 1 to 5 above, persecuted Jews on national, racial, religious and political grounds. SEVENTH COUNT Nature of Offence Crime against humanity, an offence under section 1 (a) (2) of the Nazis and Nazi Collaborators (Punishment) Law. 5710-1950 and section 23 of the Criminal Code Ordinance. 1936. Particulars of Offence (a) During the period of the Nazi regime in Germany and the other Axis countries, in the countries occupied by them and in the areas under theic de facto control, the accused, together with others, caused the spoliation of the property of millions of Jews resident in the countries aforesaid, by means of inhumane measures involving compulsion, theft, terrorism and torture. (b) Such measures included : (1) The establishment, organisation and operation of “the Central Authority for the Emigration of Jews” (Zen- TRIAL IS BASGLA DESH trahtelle fur Judische Auswanderung) in Vienna, from immediately after the entry of the Nazis into Austria in March 1938 until the end of the Second World War. through which authority the accused transferred the property of the Jews of Austria and all the Jewish communities of that State into German control. Part of this property was stolen for the purpose of financing the expulsion of the Jews of Austria to places beyond the borders of that State, and part of such property was transferred to the authorities by means of com¬ pulsion and measures of terrorism against its owners. (2) The establishment of the “Central Authority for the Emigration of Jews” in Prague after the Nazi invasion of Czechoslovakia in March 1939. until the end of the Second World War, and the organisation and operation of that authority by the accused in the same manner as the Central Authority in Vienna. By means of this Authority a “special aecunt” was operated through which the property of the Jews who had been robbed by the accused, together with others, in Czechoslovakia itself and in other countries, was transferred to the control of Germany. (3) The establishment of a Central Authority for the Emigration of the Jews and the Affairs of German Jews ( Reichszentrale ) in Berlin in 1939, and its operation by the accused until the end of the Second World War. By means of this Central Authority, as was the case with the Central Authority in Vienna, the accused, together with others, despoiled the property of the German Jews, both the indivi¬ dual property as well as the property of the vinous Jewish communities in that country, by the same methods and under the same conditions as were prescribed by him in regard to the authorities in Vienna and Prague. (4) The accused compelled hundreds of thousands of Jews to finance their deportation to extermination camps and other centres of mass slaughter by the levy of compulsory payments upon deportees from Germany and areas occupied APPENDICES 243 by her. For this purpose the accused conducted a special account “W” which was placed at the sole disposal of his department. (5) The property of Jews who were murdered in German occupied countries in Eastern Europe was also stolen by their murderers—members of the S.S. In order to centralise the acts of plunder special actions were organised in 1942/1943 within the framework of the srecial operation for the murder of Jews in Poland known as “Akrion Reinhard.” The person in charge of this special operation was the commander of the Security Police and the S.D. in their District of Lublin. During the two said years property, the nominal value of which was two hundred million Marks, but the actual value of which was several times in excess of that sum. was stolen. (6) During the Second World War and up to a short time before its conclusion, freight trains containing the movable property of persons murdered in extermination camp6, concentration points and ghettoes were run month by month from the occupied districts in the East to Germany. This property also contained vast amounts of parts of the bodies of the murdered persons, such as hair, gold teeth, false teeth and artificial limbs; all other personal effects were also robbed from the bodies of the Jews before their extermination and thereafter. (7) The accused, together with others, planned all the acts of extensive robbery in order that the property of the millions who were tent to extermination should be taken from them and conveyed to Germany. The extent of the success of such robbeiy is reflected by the fact that when the Germans, at the time of their retreat in January 1945. burnt twenty-nine stores of personal effects and valuables out of thirty-five such stores which had been erected in the extermi¬ nation camp at Auschwitz, the six stores saved from the fire were found to contain, inter alia: 34,820 men’s suits 836.255 women’s dresses and 38.000 men’s shoes. 244 WAR TRIAL IN BAKGLA UESH (c) The accused committed the said acta until the end of 1939 in the exercise of his special functions in the Security Service of che S.S. (S.D.) and from the end of that year the accused combined these functions with his functions in Bureau IV of the RSHA. (d) The accused executed the spoliation of the property of the Jews of Germany and the other areas occupied by her; in addition to those already mentioned in this count, by giving instructions to local commanders of the Security Police and, in Axis countries and areas occupied by such countries, through the offices of the diplomatic representatives of Germany as described in the first count. EIGHTH COUNT Nature of Offence. War crime, an offence under section 1 (a) (3) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, and section 23 of rhe Criminal Code Ordinance, 19%. Particulars of Offence The accused, during the period of the Second Word War, in Germany and other Axis states and in areas occupied by them, committed acts constituting a war crime in that, together with others, he caused the ill-treatment, deportation aDd murder of Jewish inhabitants of che States occupied by Germany and ether Axis states. The accused committed these accs whilst functioning in the capacities specified in the first count. NINTH COUNT Nature of offence Crime against humanity, an offence under section 1 (a) (2) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950. and sectian 23 of the Criminal Code Ordinance, 1936. APPENDICES 245 Particulars of Offence The accused, between 1940 and 1942. in Poland, then occupied by Germany, committed acts constituing a crime against humanity in that, together W’th others, he caused the deportation of over half a million Polish civilians from their places of residence with intent to settle German families in those places. The Polish deportees were in part transferred to Germany and German-occupied areas for the purpose of their employment and detention under conditions of enslavement coercion and terrorism: in part abandoned in other regions of Poland and German-occupied areas in the East; in pan con¬ centrated under inhumane conditions in labour camps organised by the S.S.; and in part transferred to Germany for the purpose of re-Germanisation (Ruckverdeutschung). The accused committed these acts under a special appoint¬ ment dated December 1939, by which he was empowered by the head of the Security Police in Berlin to act as officer in charge of the “evacuation” of civilians. TENTH COUNT Nature of offence Crime against humanity, an offence under section l (a) (2) of the Nazis and Nazi Collaborators (Punishment) Law. 5710-1950, and section 23 of the Criminal Code Ordi¬ nance. 1936. Particulars of offence (a) The accused, in 1941, in the then German-occupied parts of Yugoslavia, committed acts constituting a crime against humanity in that, together with others, he caused the deportation of over 14,000 Slovene civilians from their places of residence, with the intention of setting German families in their stead. (b) The Slovene deportees were transferred to the Serbian part of Yugoslavia by coercive, terrorist measures and under inhumane conditions. 246 WAR TRIAL IN BANOLA DISH (c) The planning of the deportations aforesaid was devised by the accused at a meeting which took place at Marburg (Ur.tersteieimark) on May 6. 1941, to which the accused summoned the representatives of the other authorities concer¬ ned in the matter. The deportation headquarters continued to be located in that city, and operated under the directions of the accused. The accused committed these acts under his special appointment referred to in the ninth count. ELEVENTH COUNT Nature oi Offence Crime against humanity, an offence under section 1 (a) (2) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1930, and secrion 23 of the Criminal Code Ordinance, 1936. Particulars of Offence The accused, during the period of the Second World War, in Germany and German-occupied areas, committed acts constituting a crime against humanity in that, together with others, he caused the deportation from their places of resi¬ dence of tens of thousands of gipsies, their concentration at concentration points, and their transportation to extermina¬ tion camps in German-occupied regions in the East for the purpose of theit being murdered. The accused committed these acts under his special appointment referred to in the ninth count. TWELFTH COUNT Nature of Offence Crime against humanity, an offence under section 1 (a) of the Nazis and Nazi Collaborators (Punishment) Law. 5710-1950. and section 23 of the Criminal Code Ordinance. 1936. Particulars of Offence The accused, in 1942, committed acts constituting a crime against humanity in that, together with others, he caused the APPENDICES 247 deportation of approximately 100 childern, civilians of the village of Lidice in Czechoslovakia, their transportation to Poland, and their murder there. The accused committed these acts in the discharge cf his functions in the Gestapo in Berlin. THIRTEENTH COUNT Nature of Offence Membership in a hostile organisation, an offence under section 3 (a) of the Nazis and Nazi Collaborators (Punisb- met) Law. 5710-1950. Particulars of Offence The accused, during tbe period of tbe Nazi regime in Germany, was a member of the organisation known as Schutzstaffeln der NS.D.A.P. (5.5.1. and attained during his service in that organisation the rank of S.S.-Obersturrobann- This organisation was declared a criminal organisation by the Judgment of the International Military Tribunal dated October L 1946. in accordance with article 9 of the Charter of the Tribunal annexed to the Four-Power Agreement of August 8, 1945, concerning the trial of the major war crimi¬ nals. FOURTEENTH COUNT Nature of Offence Membership in a hostile organisation, an offence under section 3 (a) of the Nazis and Nazi Collaborators (Punish¬ ment) Law. 5710-1950. Particulars of Offence The accused, during the period of the Nazi regime in Germany, was a member of the organisation known as Sicher- heitsdienst des Reichsfuhrers 55. (5.D.). This organisation was declared a criminal organisation by the Judgment of the International Military Tribunal dated WAR TRIAL IN BANGLA October 1, 1946, in accordance with article 9 of the Charter of the Tribunal annexed to the Four-Power Agreement of August 8.1945. concerning the trial of the major war crimi¬ nals. FIFTEENTH COUNT Nature of Offence Membership in a hostile organisation, an offence under section 3 (a) of the Nazis and Nazi Collaborators (Punish¬ ment) Law, 5710-1950. Particulars of Offence The accused, during the period of the Nazi regime in Germany, was a member of the Secret Police (Geheime Staats- pclizei) known as the Gestapo, and served in it as Director of the Department for Jewish Affairs. This organisation was declared a criminal organisation by the Judgment of the International Military Tribunal dared October 1. 1946, in accordance with article 9 of the Charter of the Tribunal annexed to the Four-Power Agreemeut of August 8, 1945, concerning the trial of the major war crimi¬ nals. The notice of charge was handed to Counsel for the accused en February 1, 1961, and he intimated that he waives his right to the holding of a preliminary examination. Jerusalem, this fifth day of Adar, 5721 (February 21. 1961). Guideon Hausner ATTORNEY-GENERAL Appendix G ADOPTION OF THE CONVENTION ON THF PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. AND TEXT OF THE CONVENTION “The General Assembly ”Approves the annexed Convention on the Prevention and Punishment of the Crime of Genocide and proposes it for signature and ratification or accession in accordance with its article XI.” ANNEX Text of the Convention The Contracting Parties. Having considered the declaration made by the General Assembly of the United Nations in its resolution % (I) dated 11 December 1946 that genocide is a crime under international law. contrary to the spirit and aims of the United Nations and condemned by the civilized world; Recognizing that at all periods of history genocide has inflicted great losses on humanity; and Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required; Hereby agree as hereinafter provided. Article I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war. is a crime under international law which they undertake to prevent and to punish. Article 11 In the present Convention, genocide means any of the fol¬ lowing acts committed with intent to destroy, in whole or in 250 WAR TRIAL IS BANGLA DESH part, h national, ethnical, racial or religious group, as such: ( a ) Killing members of the group: (b) Causing serious bodily or mental harm to members of the group: (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or (d) Imposing measures intended to prevent births within the group: (e) Forcibly transferring children of the group to another group. Article III The following acts shall be punishable: (a) Genocide: ( b ) Conspiracy to commit genocide: (c) Direct and public incitement to commit genocide: (d) Attempt to commit genocide: (e) Complicity in genocide. Article IV Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article V The Contracting Parties underake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III, Article VI Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal APPENDICES 251 of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have ac¬ cepted its jurisdiction. Article VII Genocide and the other acts enumerated in anicle III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Article IX Disputes between the Contracting Patties relating to the interpretation, application or fulfilment of the present Con¬ vention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in article III. shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Article X The present Convention, of which the Chinese. English. French. Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948. Article XI The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to siCn has been addressed by the General Assembly. 2*2 WAR TRIAL IN BANGLA DESH The present Convention shall be ratified, and the instru¬ ments of ratification shall be deposited with the Secretary- General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article XII Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible. Article XIII On the day when the first twenty instruments of ratifica¬ tion or accession have been deposited, tbe Secretary-General shall draw up a procesverbal and transmit a copy of it to each Member of the United Nations and to each of the non- member States contemplated in article XI. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day follow¬ ing the deposit of the instrument of ratification or accession. Article XIV The present Convention shall, remain in effect for a period of ten years at from the date of its coming into force. It shall thereafter remain in lorce for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. APPENDICES 253 Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Article XV If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. Article XVI A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Sectetary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request. Article XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications and accessions received in accordance with article XI; (b) Notifications received in accordance with article XII; (c) The date upon which the present Convention comes into force in accordance with article XIII; (d) Denunciations received in accordance with article XIV; (e) The abrogation of the Convention in accordance with article XV; (f) Notifications received in accordance with article XVI. Article XVI11 The original of the present Conversion shall be deposited imhe archives of the United Nations. 254 WAR TRIAL IN BANGLA DESH A certified copy of the Convention shall be transmitted to all Members of the United Nations and to the non-member States contemplated in article XI. Article XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force. Appendix H ADVISORY OPINION INTERNATIONAL COURT OF JUSTICE May 28th, 1951 RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE Advisory jurisdiction of the Court—Objection based : on alleged existence of a dispute ; on alleged exclusive right of the parties to the Genocide Convention to interpret it ; on Article IX of the Convention.—Rejection of objection. Replies limited to Genocide Convention.—Abstract ques- Reservations-—Objections thereto.—Right of a State which has made a reservation to be a party to the Convention not¬ withstanding the objection made to its reservation by certain parties.—Circumstances justifying a relaxation of the rule of integrity.—Faculty of making reservations to the Convention; intention of the General Assembly and of the contracting States; high ideals of the Convention.—Criterion of the com¬ patibility of the reservation with object and purpose of the Convention.—Individual appraisal by States.—Absence of a rule of international law concerning the effects of reservations. —Administrative practice of the League of Nations and of the United Nations. Effect of the reservation : between the State which makes :t and the State which objects thereto.—Application of the criterion of compatibility. WAR TRIAL IN BANGLA DESH Objection made : by a State which has not signed the Convention ; by a signatory which has not ratified. — Provisi¬ onal status of signatory State. Present : President BASDEVANT ; Vice-President Guer¬ rero ; Judges Alvarez, Hackworth. Winiarski. Zoricic, De Visscher. Sir Arnold McNair. Klaestad, Badawi Pasha, Read, Hsu Mo ; Registrar Hambro. The Court, composed as above, gives the following Advisory Opinion : On November 16tb, 1950, the General Assembly of the United Nations adopted the following resolution : “The General Assembly. Having examined the report of the Secretary-General regarding reservations to multilateral conventions, Considering that certain reservations to the Convention on the Prevention and Punishment of the Crime of Genocide have been objected to by some States. Considering that the International Law Commission is studying the whole subject of the law of treaties, including the question of reservations. Considering that different views regarding reservations have been expressed during the fifth session of the General Assembly, and particulary in the Sixth Committee, 1. Requests the International Court of Justice to give an Advisory Opinion on the following questions : In so far as concerns the Convention on the Prevention and Punishment of the Crime of Genocide in the event of a State ratifying or acceding to the Convention subject to a reservation made either on ratification nr on accession, or on signature followed by ratification. I. Can the reserving State be regarded as being a parry to the Convention while still maintaining its reser¬ vation if the reservation is objected to by one or more of the parties to the Convention but not by PPENDICES 257 II. If the answer to Question I is in the affirmative, what is the effect of the reservation as between the reserv¬ ing State and : (a) The parties which object to the reservation 7 (b) Those which accept it ? III. What would be the legal effect as regards rhe answer to Question I if an objection to a reservation is made: (a) By a signatory which has not yet ratified ? (W By a State entitled to sign or accede but which has not yet done so ? 2. Invites the International Law Commission .- (a) In the course of its work on the codification of the law of treaties, to study the question of reservations to multi¬ lateral conventions both from the point of view of codification and from that of the progressive development of international law : to give priority to this study and to report thereon, especially as regards multilateral conventions of which the Secretary-General is the depositary, this report to be consid¬ ered by the General Assembly at its sixth session ; (bj In connection with this study, to take account of all the views expressed during the fifth session of the General Assembly, and particularly in the Sixth Committee : 3. Instructs the Secretary-General, pending the rendering rt the Advisory Opinion by the International Court of Justice, the receipt of a report lrom the International Law Commission and further action by the General Assembly, to follow his prior praccice with respect to the receipc of reservations to conventions and with respect to the notification and solicita¬ tion of approvals thereof, all without prejudice to the legal effect of objections to reservations to conventions as it may be recommended by the General Assembly at its sixth By a letter of November 17th, 1950, filed in the Registry on November 20th, the Secretary-General of the United Nations transmitted to the Court a certified true copy of the General Assembly’s resolution. 258 WAR TRIAL IN BANGLA DESH On November 25tb. 1950. in accordance with Article 66. paragraph 1, of the Court’s Statute, the Registrar gave notice of the request to all States entitled to appear befcre the Court. On December 1st. 1950, the President—as the Court was not sitting—made an order by which he appointed January 20th. 1951, as the date of expiry of the rime-limit for the filing of written statements and reserved the rest of the pro¬ cedure for further decision. Under the terms of this order, such statements could he submitted to the Court hy all States entiled to become parties to the Genocide Convention, namely, any Member of the United Nations as well as any non- member State to which an invitation to this effect had been addressed by the General Assembly. Furthermore, written statements could also be submitted by any international organization considered by the Court as likely to he able to furnish information on the questions referred to it for an Advisory Opinion, namely, the International Labour Organi¬ zation and the Organization of American States. On the same date, the Registrar addressed the special and direct communication provided for in Article 66. paragraph 2, of the Statute to all States entitled to appear before the Court, which had been invited to sign and ratify or accede to the Genocide Convention, either under Article XI of that Convention or by virtue of a resolution adopted by the General Assembly on December 3rd. 1949. which refers to Article XI : by application of the provisions of Article 63, paragraph 1. and Article 68 of the Statute, the same commu¬ nication was addressed to other States invited to sign and ratify or accede to the Convention, by virtue of the resolution of the General Assembly, namely, the following States : Albania, Austria, Bulgaria, Cambodia, Ceylon. Finland. Hun¬ gary, Ireland, Italy, Jordan. Korea. Laos, Monaco, Portugal. Romania, and Viet-Nam. Finally, the Registrar’s communi¬ cation was addressed to the International Labour Organiza¬ tion and the Organization of American States. APPENDICES 259 Written statements were deposited within the prescribed rime-limit by the following governments and international organizations: the Organization of American States, the Union of Soviet Socialist Republics, the Hashemite Kingdom of Jordan, the United States of America, the United King¬ dom of Great Britain and Northern Ireland, the Secretary- General of the United Nations, Israel, the International Labour Organization. Poland. Czechoslovakia, the Nether¬ lands. the People’s Republic of Romania, the Ukrainian Soviet Socialist Republic, the People’s Republic of Bulgaria, the Byelorussian Soviet Socialist Republic, the Republic of the Philippines. By a despatch dated December 14rh. 1950. and received on January 29th. 1951, the Secretary-General of the United Nations transmitted to the Registry the documents which he had been requested to furnish pursuant to Article 65 of the Court’s Statute. (All these documents were enumerated in the list attached to the present Opinion). As the Federal German Republic had been invited on December 2Cth, 1–50, to accede to the Genocide Convention, the Registrar, by a telegram and a letter of January 17th, 1951, which constituted the special and direct communication provided for under Article 66. paragraph 2. of the Statute, informed the Federal German Government that the Court was prepared to receive a written statement and to hear an oral statement on its behalf; no action was taken in pursuance of this suggestion. By a letter dated March Sth. 1951, filed in the Registry on March 15th. the Secretary-General of the United Nations announced that he had designated Dr. Ivan S. Kerno, Assis¬ tant Secretary-General in charge of the Legal Department, as his representative before the Court, and that Dr. Kemo was authorized to present any statement likely to assist the 260 WAR TRIAL IN BANGLA Dt’SH The Government of the United Kingdom, the French Government and the Government of Israel stated, in Utters dated respectively January’ 17th. March 12th and March !9th. 1951, that they intended to present oral statements. At public sittings held from April 10th to 14th, 1951, the Court heard oral statements presented : on behail of the Secretary-General of the United Nations by Dr. Ivan S. Kerno, Assistant Secretary-General in charge of the Legal Department ; on behalf of the Government of Israel by Mr. Shabtai Rosenne, Legal Adviser to the Ministry of Foreign Allans; on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland by the Right Honourable Sir Hartly Shawcross, K.C., M.P.. Attorny-Geneial, and by Sir G.G. Ficzmaunce, C.M.G., Second Legal Adviser to the Foreign Olliee ; on behalf of the Government of the French Republic by M. Charles Rousseau, Professor at the Faculty of Law in Paris, Assistant Legal Adviser of the Ministry of Foieign Affairs. In the communications which they have addressed to the Couit, ceitain governments have contended that the Couit is nut competent to exercise its advisory functions in the pte- A lirst objection is lounded on the argument that the mak¬ ing of an objection to a reservation made by a State to the Convention on the Prevention and Punisnment of the Crime of Genocide constitutes a dispute and that, ui order to avoid adjudicating on that dispure, the Court snould refrain from replying to Questions I and II, In this connection, the Court can confine itself to recalling the principles which it laid down in its Opinion of March 30th, 1950 (I.C.J. Reports 1950, p. 71). A reply to a request for an Opinion should not, in principle, be refused. The permissive provision of Article 65 ol the Statute recognizes that the Court has the power to APPENDICES 261 decide whether the circumstances of a particular case are such as ro lead the Court to decline ro reply ro the request fer an Opinion. At the same time. Article 68 of the Statute recognizes that the Court has the power ro decide to what extent the circumstances of each case must lead it t.> apply
to advisory proceedings the provisions of the Statute which
apply in contentious cases. The object of tills request for
an Opinion is to guide the United Nations in respect of its
own action. It is indeed beyond dispute that the General
Assembly, which drafted and adopted the Genocide Con¬
vention. and the Secretary-General, who is the depositary- of
the instruments of ratification and accession, have an interest
in knowing the legal effects of reservations ro that Con¬
vention and more particularly the legal effects of objections
to such reservations.
Following a similar line of argument, it has been conten¬
ded that the request for an opinion would constitute an
inadmissible interference by the General Assembly and by
States hitherto strangers to the Convention in the interpreta¬
tion of that Convention, as only States which are parries to
the Convention are entitled to interpret it or ro seek an
interpretation of it. It must be pointed out in this connec¬
tion that, not only did the General Assembly take the initia¬
tive in respect of the Genocide Convention, draw up its terms
and open it for signature and accession bv States, but that
express provisions of the Convention (Articles XI and XVI)
associate the General Assembly with the life of the Conven¬
tion ; and finally, that the General Assembly actually associa¬
ted itself with it by endeavouring to secure the adoption of
the Convention by ns great a number of States as possible.
In these circumstances, there can be no doubt thar the precise
determination of the conditions for participation in the Con¬
vention constitutes a permanent interest of direct concern to
the United Nations which has not disappeared with the entry
into force of the Convention. Moreover, the power of the
General Assembly to request an Advisory Opinion from the
which are parries to the Convention enjoy the faculty of
referring the matter to the Court in the manner provided in
Article IX of the Convention.
Another objection has been put forward to the exercise
of the Court’s advisory jurisdiction : it is based cm Article IX
of the Genocide Convention which provides that disputes
relating to the interpretation, application of fulfilment of that
Convention shall be submitted to the International Court of
Justice at die request of any of the parties to dispute. It
has been contended that there exists no dispute in the present
case and that, consequently, the effect of Article IX is to
depiive the Court, not only of any contentious ;unsdiction,
but also of any power to give an Advisory Opinion. The
Court cannot share this view. The existence of a procedure
for the settlement of disputes, such as that provided by
Ardde IX. does not in itself exclude the Court’s advisory
jurisdiction, for Article 96 of the Charter confers upon the
General Assembly and the Security Council in general terms
the right to request this Court to give an Advisory Opinion
”on any legal question.” Further. Article IX, belore it can
be applied, presupposes the status of “contracting parties” ;
consequently, it cannot be invoked against a reqaest for an
Opinion the very object of which is to determine, in relation
to reservations and objections thereto, the condition in which
a State can become a party.
In conclusion, the Court considers that none of the above-
stated objections co the exercise of its advisory function is
well founded.
The Court observes that the three questions which have
been referred to i: for an Opinion have certain common
characteristics.
APPENDICES
263
All three questions are expressly limited hr the terms of
the Resolution of the General Assembly to the Convention on
the Prevention and Punishment of the Crime of Genocide,
and the same Resolution invites the International Law Com¬
mission to study the general question of reservations to
multilateral conventions both from the point of view of
codification and from that of 1 the progressive development
of international law. The questions thus having a clearly
defined object, the replies which the Court is called upon to
give to them are necessarily and strictly limited to that Con¬
vention. The Court will seek these replies in the rules of
law relating to effect to be given to the intention of the parties
to multilateral conventions.
The three questions are purely abstract in character. They
refer neither to the reservations which have, in fact, been
made to the Convention by certain States, nor to the objec¬
tions which have been made to such reservations by other
States. They do not even refer to the reservations which
may in future be made in respect of any particular article; nor
do they refer to the objections to which these reservations
might give rise.
Question I is framed in the following terms;
“Can the reserving State be regarded ns being a party
to the Convention while still maintaining its reserva¬
tion if the reservation is objected to by one or
more of the parties to the Convention but not by
others?”
The Court observes that this question refers, not to the
possibility of making reservations to the Genocide Convention,
but solely to the question whether a contracting State which
has made a reservation can. while still maintaining it, be
regarded as being a party to the Convention, when there is
a divergence of views between the contracting parties con-
WAR TRIAL IN BANGLA OESH
2M
It is well established that in its treat; relations a State
cannot be bound without its consent, and that consequently
no reservation can be effective against any State without its
agreement thereto. It is also a generally recognised principle
that a multilateral convention is the result of an agreement
freely concluded upon its clauses and that consequently none
of the contracting parties is entitled to frustrate or impair, by
means of unilateral decisions or particular agreement, the
purpose and raison d’etre of the convention. To this principle
was linked the notion of the integrity of the convention as
adopted, a notion which in its traditional concept involved
the proposition that no reservation was valid unless it was
accepted by all the contracting parties without exception, as
would have been the case if it had been stated during the
negotiations.
This concept, which is directly inspired by the notion of
contract is of undisputed value as a principle. However,
as regards the Genocide Convention, it is proper to refer to
a variety of circnmstances which would lead to a more
flexible application of this principle. Among these circum¬
stances may be noted the clearly universal character of the
United Nations under whose auspices the Convention was
concluded and the very wide degree of participation envisaged
by Article XI of the Convention. Extensive participation in
conventions of this type has already given rise to greater
flexibility in the international practice concerning multilateral
conventions. More general resort to reservations, very great
allowance made for tacit assent to reservations, the existence
of practices which go so far as to admit that the author of
reservations which have been rejected by certain contracting
parties is nevertheless to be regarded as a party to the con¬
vention in relation to those contracting parties that have
accepted the reservations—all these factors are manifestations
of a new need for flexibility in the operation of multilateral
iPPENDICES
2o5
It must also be pointed out that although the Genocide
Convention was finally approved unanimously, it is neverthe¬
less the result of a series of majority votes. Tbe majority
principle, while facilitating the conclusion of multilateral con¬
ventions. may also make it necessary for certain States to make
reservations. This observation is confirmed by the great
number of reservations which have been made of recent years
to mnltilateral conventions.
In this state of international practice, it could certainly not
be inferred from the absence of an article providing for reser¬
vations in a multilateral convention that the contracting States
are prohibited from making certain reservations. Account
should also be taken of the fact that the absence of such an
article or even the decision not to insert such an article can be
explained by tbe desire not to invite a multiplicity of reserva¬
tions. The character of a multilateral convention, its purpose
provisions, mode of preparation and adoption, are factors
which must be considered in determining, in tbe absence of
any express provision on the subject, the possibility of making
reservations, as well as their validity and effect.
Although it was decided during the preparatory work not
to insert a special article on reservations, it is none the less
rrue that the faculty for States to make reservation was con¬
templated at successive stages of the drafting of the
Convention. In this connectioa the following passage may be
WAR TRIAL IN BANGLA DESH
26^
of the Genocide Convention by the General Assembly. Certain
delegates clearly annonnced that their governments could only
sign or ratify the Convention subject to certain reservations.
Furthermore, the faculty to make reservations to the Con¬
vention appears to be implicitly admitted by the very terms of
Question I.
The Court recognizes that an understanding was reached
within the General Assembly on the faculty to make reserva¬
tions to the Genocide Convention and that it is permitted to
conclude therefrom that Stares becoming patties to the
Convention gave their assent thereto. It must now determine
what kind of reservations may be made and what kind of
objections may be taken to them.
The solution of these problems must be found in the
special characteristics of the Genocide Convention. The
origins and character of that Convention, the objects pursued
by the General Assembly and the contracting patties, the rela¬
tions which exist between the provisions of the Convention
inter se; and between those provisions and these objects,
furnish elements of interpretation of the will of the General
Assembly and the parties. The origins of the Convention
show that it was the intention of the United Nations to
condemn and punish genocide as “a crime under international
law” involving a denial of the right of existence of entire
human groups, a denial which shocks the conscience of man¬
kind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations (Resolution S6 (I) of the General Assembly, Decem¬
ber 11th 19*16). The first consequence arising from this conce*
ption is that the principles underlying the Convention are
principles which are recognized by civilized nations as binding
on States, even without any conventional obligation. A second
consequence is the universal character both of the condemna¬
tion of genocide and of the co-operation required “in order
to liberate mankind from such an odious scourge” (Preamble
to the Convention). The Genocide Convention was there-
APPENDICES
267
fore intended by the General Assembly and by the contracting
parties to be definitely universal in scope. It was in fact
approved on December 9th, 1948. by a resolution which was
unanimously adopted by fifty-sii States.
The objects of such a convention must also be considered.
The Convention was manifestly adopted for a purely humani¬
tarian and civilizing purpose. It is indeed difficult to imagine
a convention that might have this dual character to a greater
degree, since its object on the one hand is to safeguard the
very existence of certain human groups and on the other to
confirm and endorse the most elementary principles of
morality. In such a convention the contracting States do
not have any interests of their own; they merely have, one
and all. a common interest, namely, the accomplishment of
those high purposes which are the raison d’ etre of the conven¬
tion. Consequently, in a convention of this type one cannot
speak of individual advantages or disadvantages to States, or
of the maintenance of a perfect contractual balance between
rights and duties. The high ideals which inspired the Conven¬
tion provide, by virtue of the common will of the parties, the
foundation and measure of all its provisions.
The foregoing considerations, when applied to the question
of reservations, and more particularly to the effects of objec¬
tions to reservations, lead to the following conclusions.
The object and purpose of Genocide Convention imply
tine it was the intention of General Assembly and of the
States which adopted it that as many States as possible should
participate. The complete exclusion from the Convention
of one or more States would not only restrict the scope of
its application, but would detract from the authority of
the moral and humanitarian principles which are its basis.
It is inconceivable that the contracting parties readily con¬
templated that an objection to a minor reservation should
produce such a result. But even less could the contracting
parties have intended to sacrifice the very object of the Con-
WAR TRIAL IN BANGLA
vention in favour of a vain desire to secure as man; partici¬
pants as possible. The object and purpose of the Convention
thus limit both the freedom of making reservations and that
of objecting to them. It follows that it is the compatibility of
a reservation with the object and purpose of the Convention
that must furnish the criterion for the attitude of a State in
making the reservation on accession as well as for the
appraisal by a State in objecting to the reservation Such
is the rule of conduct which must guide every State in rhe
appraisal which it must make, individually and from its own
standpoint, of the admissibility of any reservaricn.
Any other view would lead either to the acceptance of
reservations which frustrate the purposes which the General
Assembly and the contracting parties had in mind, or to
recognition that the parties to the Convention have the
power of eicluding from it the author of a reservation, even
a minor one. which may be quite compatible with those
It has nevertheless been argued that any Stare entitled
to become a party to the Genocide Convention may do so
while making anv reservation it chooses by virtue of its
sovereignty. The Court cannot share this view. It is obvious
that so extreme an application of the idea of State sovereignty
could lead to a complete disregard of rhe object and purpose
of the Convention.
On the other hand, it has been argued that there exists a
rule of international law subjecting the effect o! a reserva¬
tion to the express or tacit assent of all the contracting
parries. This theory rests essentially on a contractual con¬
ception of the absolute integrity of the convention as adopted.
This view, however, cannot prevail if. having regard to the
character of rhe convention, its purpose and its mode of
adoption, it can be established that the parties intended to
derogate from that rule by admitting the faculty to make
reservations thereto.
APPENDICES
It does not appear, moreover, that the conception of the
absolute integrity of a convention has been transformed into
a rule of international law. The considerable part which tacit
assent has always played in estimating the effect which is to
be given to reservations scarcely permits one to state that such
a rule exists, determining with sufficient precision the effect
of objections made to reservations. In f set, the examples of
objections made to reservations appear to be too rare in
international practice to have given rise to such a rule. It
cannot be recognized that the report which was adopted on the
subject by the Council of the League of Nations on June 17th,
1927. has had this effect. At best, the recommendation made on
that date by the Council constitutes the point of departure of an
administrative practice which, after being observed by the
Secretariat of the League of Nations, imposed itself, so to
speak, in the ordinary course of things on the Secretary-
General of the United Nations in his capacity of depositary cf
conventions concluded under the auspices of the League. But
it cannot be concluded that the legal problem of the effect of
objections to reservations has in this way been solved. The
opinion of the Secretary-General of the United Nations him¬
self is embodied in the following passage of his report of
September 21st, 1950 : “While it is universally recognized that
the consent of the other governments concerned must be
sought before they can be bound by the terms of a reservation,
there has not been unanimity either as to the procedure to be
followed by a depositary in obtaining the necessary consent or
as to the legal effect of a Stare’s objecting to a reservation.”
It may. however, be asked whether the General Assembly
of the United Nations, in approving the Genocide Convention,
had in mind the practice according to which the Secretary-
General. in exercising his functions as a depositary did not
regard a reservation as definitively accepted until it had been
established that none of the other contracting States objected
to ic. If this were the case, it might be argued that the implied
intention of the contracting parties was to make the effec-
270
WAR TRIAL IN BANGLA DESH
tiveness of any reservation to the Genocide Convention con¬
ditional on the assent of all the parties.
The Court does not consider that this view corresponds to
reality. It must be pointed out. first of all, that ehe existence of
an administrative practice does not in itself constitute a deci¬
sive factor in ascertaining what views the contracting States to
the Genocide Convention may have had concerning the rights
and duties resulting therefrom. It must also be pomted out that
there existed among the American States members both of the
United Nations and of the Organization of American States,
a different practice which goes so far as to permit a reserving
State to become a party irrespective of the nature of the
reservations or of the objections raised by other contracting
States. The preparatory work of the Convention contains
nothing to justify the statement that the contracting States
implicitly had anv definite practice in mind. Nor is there any
such indication in the subsequent attitude of the contracting
States: neither the reservations made by certain States not
the position adopted by other States towards those reserva¬
tions permit the conclusion that assent to one or the other
of these practices had been given. Finally, it is not without
interest to note, in view of the preference generally said to
attach to an established practice, that the debate on reserva¬
tions to multilateral treaties which took place in the Sixth
Commitree at the fifth session of the General Assembly
reveals a profound divergence of views, some delegations
being attached to the idea of the absolute integrity of the
Convention, others favouring a more flexible practice which
would bring about the participation of as many States as
possible.
It results from the foregoing ccnsideraticns that Question I,
on account of its abstract character, cannot be given an
absolute answer. The appraisal of a reservation and the
effect of objections that might be made to it depend upon
the particular circumstances of each individual case.
APPENDICES
271
Having replied to Question I, the Court will now examine
Question II. which is framed as follows :
“If the answer to Question I is in the affirmative,
what is the effect of the reservation as between the
reserving State and :
(a) the parties which object to the reservation 7
U>) those which accept it ?
The considerations which form the basis of the Court’s
reply to Question I are to a large extent equally applicable
here. As been pointed out above, each State which is a party
to the Convention is entitled to appraise the validity of the
reservation, and it exercises this right individually and from
its own standpoint. A» no State can be bound by a reserva¬
tion to which it has not consented, it necessarily follows that
each State objecting to it will or will not, on the basis of its
individual appraisal within the limits of the criterion of the
object and purpose stated above, consider the reserving State
to be a party to the Convention. In the ordinary course of
events, such a decision will only affect the relationship
between the State making the reservation and the objecting
State; on the other hand, as will be pointed out later, such a
decision might aim at the complete exclusion from the Con¬
vention in a case where it was expressed by the adoption of
a position on the jurisdictional plane.
The disadvantages which result from this possible diver¬
gence of views—which an article concerning the making of
reservations could have obviated—are real; they are mitigated
by the common duty of the contracting States to be guided in
rh’ir judgment by the compatibility or incompatibility of the
reservation with the object and purpose of the Convention.
Tr must clearly be assumed that the contracting States are
desirous of preserving intact at least what is essential
to the object of the Convention ; should this desire be
absent, it is quite clear tf at the Convention itself would be
impaired both in its principle and in it* application.
272
WAR TRIAL IN BANGLA DESH
It may be that the divergence of views between parties
as to the admissibility of a reservation will not in fact have
any consequences. On the other hand, it may be that cer¬
tain patties who consider that the assent given by other
parties to a reservation is incompatible with the purpose of
the Convention, will decide to adopt a position on the juris¬
dictional plane in respect of this divergence and to settle
the dispute which thus arises either by special agreement or
by the procedure laid down in Article IX of the Convention.
Finally, it may be that a State, whilst not claiming that a
reservation is incompatible with the object and purpose of
rhe Convention, will nevertheless object to it. but that an
understanding between that State and the reserving State
will have the effect that the Convention will enter into force
between them, except for the clauses affected by the
reservation.
Such being the situation, the task of the Secretary-General
would be simplified and would be confined to receiving reser¬
vations and objections and notifying them.
Question III is framed in the following terms :
“What would be the legal effect as regards the answer to
Question I if an objection to a reservation is made :
(a) By a signatory which has not yet ratified ?
(b) By a State entitled to sign or accede but which has
The Court notes that the terms of this question link it to
Question I. This link is regarded by certnin States as pre¬
supposing a negative reply to Question I.
The Court considers, however, that Question III could
arise in any case. Even should the reply to Question I not
tend to exclude, from being a party to the Convention a
State which has made reservation to which another State
has objected, the fact remains that the Convention does not
enter into force as between the reserving State and the
objecting State. Even if the objection has this reduced legal
APPENDICES
273
effect, the question would still arise whether the States men¬
tioned under (a) and (b) of Question III are entitled to bring
about such a result by their objection.
An extreme view of the right of such States would appear
to be that these two categories of States have a right to
become parties to the Convention, and that by virtue of this
right they may object to reservations in the same way as
any State which is a party to the Convention with full legal
effect, i.e. the exclusion from the Convention of the reserv¬
ing State. By denying them this right, it is said, they would
he obliged either to renounce entirely their right of partici¬
pating in the Convention, or to become a party to what is.
in fact, a different convention. The dilemma does not cor¬
respond to reality, as the States concerned have always a
right to be parties to Convention in their relation with other
contracting States.
From the date when the Genocide Convention was opened
for signature, any Member of the United Nations and any
non-member State to which an invitation to sign had been
addressed by the General Assembly, bad the right to be a party
to the Convention. Two courses of action were possible to
this end : either signature, frem December 9th, 19-8, until
December 31st. 1949, followed by ratification, or accession
as from January 1st, 1950 (Article XI of the Convention).
The Court would point out that the right to become a party
to the Convention does not express any very clear notion. It
is inconceivable that a State, even if it has participated in
the preparation of the Convention, could, before taking one
or the other of the two courses of action provided for becom¬
ing a party to the Convention, exclude another State. Possess¬
ing no right which derive from the Convention, that State
cannot claim such a right from its status as a Member of
the United Nations or from che invitation to sign which has
been addressed to it by the General Assembly.
The case of a signatory State is different. Without going
inro the question of the legal effect of signing an international
274 WAR TRIAL IN BANGLA DESH
convention, which necessarily varies in individual cases, the
Court considers that signature constitutes a first step to
participation in the Convention.
It is evident that without ratification, signature does not
make the signatory State a patty to the Convention; never¬
theless, it establishes a provisional status in favour of that
State. This status may decrease in value and importance
after the Convention enters into force. But, both before
and after the entry into force, this status would justify more
favourable treatment being meted out to signatory States in
respect of objections than to States which have neither signed
nor acceded.
As distinct from the latter States, signatory States have
taken certain of the steps necessary for the exercise of the
right of being a party. Pending ratification, the provisional
status created by signature confers upon the signatory a right
to formulate as a precautionary measure objections which
have themselves a provisional character. These would
disappear if the signature were not followed by ratification,
or they would become effective on ratification.
Until this ratification is made, the objection of a signatory
State can therefore not have an immediate legal effect in
regard to the reserving State. It would merely express
and proclaim the eventual attitude of the signatory State
when it becomes a party to the Convention.
The legal interest of a signatory State in objecting to a
reservation would thus be amply safeguarded. The reserving
State would be given notice that as soon as the constitutional
or other processes, which cause the lapse of time before
ratification, have been completed, it would be confronted
with a valid objection which carries full legal effect and
consequently, it would have to decide, when the objection
is stated, whether it wishes to maintain or withdraw its
reservation. In the circumstances, it is of little importance
whether the ratification occurs within a more or less long
time-limit. The resulting situation will always be that of a
APPENDICES
275
ratification accompanied by an objection to the reservation.
In the event of no ratification occurring, the notice would
merely have been in vain.
For these reasons.
THE COURT Is OF OPINION,
In so far as concerns the Convention on the Prevention
and Punishment of the Crime of Genocide, in the event of a
State ratifying or acceding to the Convention subject to a
reservation made either on ratification or on accession, or on
signature followed by ratification.
On Question / :
by seven votes to five.
That a State which has made and maintained a reserva¬
tion which has been objected to by one or more of the parties
to the Convention but not by others, can be regarJed as
being a parry to the Convention if the reservation is com¬
patible with the object and purpose of the Convention;
otherwise, that State cannot be regarded as lieing a patty to
the Convention.
On Question II :
by seven votes to five.
(a) that if a party to the Convention objects to a reserva¬
tion which it considers to he incompatible with the object
and purpose of the Convention, it can in fact consider that
the reserving State is not a party to the Convention;
(b) that if, on the other hand, a party accepts the reserva¬
tion as being compatible with the object and purpose of the
Convention, it can in fact consider that the reserving State
is a party to the Convention;
On Question III:
by seven votes to five,
(a) that an objection to a reservation made by a signatory
State which has not yet ratified the Convention can have the
276 WAR TRIAL IN BANGLA DESH
legal effect indicated in the reply to Question I only upon
ratification. Until that moment it merely serves as a notice
to the other State of the eventual attitude of the signatory
State ;
(b) chat an objection to a reservation made by a State
which is entitled to sign or accede but which has not yet done
so. is without legal effect.
Done in French and English, the French text being autho¬
ritative, at the Peace Palace. The Hague, this twenty-eight day
of May; one thousand nine hundred and fifty-one, in two
copies, one of which will be placed in the archives of the
Court and the other transmitted to the Secretary-General of
the United Nations.
(Signed) BasdEvant,
President.
( Signed ) E. Hambro.
Registrar.
Vice-President GL’ERRERO. Judges Sir Arnold McNair,
READ and Hsu Mo. while agreeing that the Court has com¬
petence to give an Opinion, declare that they are unable to
concur in the Opinion of the Court and have availed them¬
selves of the right conferred on them by Articles 57 and 68 of
the Statute and appended to the Opinion the common state¬
ment of their dissenting opinion.
Judge Alvarez, declaring that he is unable to concur in
the Opinion of the Court, has availed himself of the right con¬
ferred on him by Articles 57 and 68 of the Statute and has
appended to the Opinion the statement of his dissenting
opinion.
(Initialled) J. B.
( Initialled) E. H.
DISSENTING OPINION OF JUDGES GUERRERO,
Sir ARNOLD McNAIR, READ. HSU MO
We regret that we are unable to concur in the Opinion of
the Court, while agreeing that the Court has competence to
give an Opinion.
We also consider that the role of the Court in this matter
is a limited one. The Court is not asked to state which is in
its opinion the best system for regulating the making of reser¬
vations to multilateral conventions. States engaged in the
preparation of a multilateral conventions, by means either of
a diplomatic conference or of the machinery of the United
Nations, are free to insert in the text provisions defining the
limits within which, and the means by which, reservations can
be proposed and can take effect With these questions of
policy the Court is not concerned. Its Opinion is requested
as to the existing law and its operation upon reservations to
the Genocide Convention, which contains no express provision
to govern this matter. But the Court cannot overlook the
possibility that its Opinion may have a wider effect—more
particularly having regard to the fact that Dr. Kemo, the
representative of the Secretaty-General of the United Nations,
in addressing the Court, treated the matter generally and
expressed the hope that the Opinion would be useful in dea¬
ling with the general problem of reservations to multilateral
conventions.
The three questions are described in the majority Opinion
as “purely abstract”. They are abstract in the sense that they
do not mention any particular States or any particular reser¬
vations. We consider, however, that it will make our
examination of the problem more realistic if we state that
before the end of 1950 the Secretary-General had received
i o:ice of eighteen reservations, proposed, some by one State,
some by another, the total number of States being eight, and
WAR TRIAL IN BANGLA DESH
that those reservations relate to Article IV (removal
of any jurisdictional immunities of “constitutionally respon¬
sible rulers, public officials or private individuals”), Article VI
(jurisdiction of municipal tribunals). Article VIII (extradition).
Article IX (the compulsory jurisdiction of the International
Court of Justice), and Article XII (tbe “colonial clause”).
Every one of the eight reserving States has made a reservation
against, or in regard to. Article IX.
In considering the requirements of international law as
to the proposal of reservations and the conditions of their
effectiveness, the Court is not confronted with a legal vacuum.
The consent of the parties is the basis of treaty obligations.
The law governing reservations is only a particular applica¬
tion of this fundamental principle, whether the consent of
the parties to a reservation is given in advance of the
proposal of the reservation or at the same time or later.
The fact that in so many of the multilateral conventions of
the past hundred years, whether negotiated by groups of
States or the League of Nations or the United Nations, the
parties have agreed to create new rules of law or to declare
existing rules of law with the result that this activity is often
described as “legislative” or “quasi-legislative”, must not
obscure tbe fact that the legal basis of these conventions, and
the essential thing that bring them into force, is the common
consent of the parties.
The practice of proposing reservations to treaties (though
the world “reservation” is not always used) is at least a
century old. but it did not receive much attention from legal
writers until the present century. The following quotations
show clearly that the practice of governments has resulted in
a rule of law requiring the unanimous consent of all the
parties to a treaty before a reservation can take effect and
the State proposing it can become a party.
(a) From Fauchille : Traite de droit international public
tome I. 3”’ partie. paragraphs 823), published in 1926. the
APPENDICES 279
following passage may be extracted Itranslation bom French ]:
“In our opinion, reservation on signature are not
admissible unless all the contracting States agree to
accept them, whether expressly or tacitly: the final
result would be a new treaty, quite different from that
first negotiated. If the State which sign without reser¬
vations do not agree, they will be entitled to insist
that the contracting States which made reservations
must either withdraw them or accept the position that
the convention will not apply in relation to other
interested States.”
(b) Sir William Malkin, in his article entitled “Reserva¬
tions to Multilateral Conventions”, in the British Year Boob
of International Law of 1962, at page 159, traced the gradual
development, during the previous half century and more, of
the practice of proposing reservations and the variety of
forms which it has taken. He concluded as folllows :
“It will be seen that of all the cases examined above
where an actual reservation was made to any pro¬
vision of a convention, there is hardly one as to which
it cannot be shown that the consent of the other con¬
tracting Powers was given either expressly or by
implication. Where the reservation is embodied in
a document (which must have formed the subject of
previous discussion and agreement) signed by the
representatives of the other contracting Powers, con¬
sent is express: where the reservation had been pre¬
viously announced at a sitting of the conference and
was repeated at the time of signature without any
objection being taken, consent is implied. And cer¬
tainly there is no case among those examined which
could be quoted as a precedent in favour of the
theory that a State is entitled to make any reserva¬
tions it likes to a convention without the assent of
the other contracting parties.”
TRIAL IN BANGLA DEfH
(c) From Hildebrando Accioly, Tratado di direito inter¬
national publico, published in 1934 (p. 448) [irons/ation from
Portuguese] :
“1288. Re chat as it may. the general principle which is
universally accepted is that ratification cannot be made sub-
i ect to reservations, whether by the ratifying authority, or
by the constitutional organ competent to authorize ratifica¬
tion, unless the other contracting paities agree to these
reservations, or provision is made in the tteaty itself for
reservations. This principle was enshrined a few years ago
in a resolution adopted by the Assembly of the League of
Nations on September 25th. 1931. on the subject of the entry
into force of the Protocol concerning the Revision of the
Statute of the Permanent Court of International Justice.”
(The said resolution is expressed as follows: “The Assembly
considers that a reservation can only be made at the moment
of ratification if all the other signatory States agree or if
such a reservation has been provided for in the text of the
Convention.”) (League of Nations. Official Journal, Special
Supplement No. 92. October 1931, p. 10.)
(d) From Podesta Costa. Manual de derecho interna¬
tional publico (2a edicion 1947). page 189 [ translation from
Spanish J :
“The presentation of a reserve is tantamount to a new
proposal made to the other party. If the latter accepts it. a
consents of opinion exists and a new clause is embodied in
the treaty : if the latter does not accept it, there is only a
unilateral expression of intention which cannot constitute a
source of obligations. This is the basic rule which governs
the matter.”
The application of this rule in practice is illustrated by
the Slavery Convention of 192*. It was an important
humanitarian convention and. after prolonged study of
slavery by the League of Nations Assembly, a convention
was drafted by a committee appointed by the Assembly. It
APPENDICES
281
was approved by the Assembly, on September 25th, 1926
(apparently without dissent), and then opened for signature,
ratification and accession. On August lltb. 1930, the
Secretary-General made a report (A.17.1930. VI) upon the
state of the signatures, ratifications and accessions. The
following passage may be extracted from page 2 of this
document;
“The accessions by Hungary (April 16th, 1927 and by
the United States of America (March 21st, 1929) were given
with certain reservations, which have been submitted for
acceptance to the parties to the Convention. Fourteen States
have not yet replied as regards the Hungarian reservations;
ten replies have still to be received regarding the United
States reservations.”
In the annexed list of ratifications and accessions appear
the names of the United States of America and Hungary,
subject, in each case to the following note :
“Subject to a reservation which has been submitted to
the signatory States for acceptance.”
On page 6 of the same document is printed a letter to
the Secretary-General from the Hungarian Delegation,
containing the following passage :
“(b) The Hungarian Government has already made
known its accession co the Convention on Slavery of
September 25th. 1926. This accession will become
effective as soon as the governments of the following
countries have declared their acceptance of the reserva¬
tion made by Hungary at the time of her accession…”
IHere follow the names of eleven countries.]
In 1927 the law and practice as to reservations engaged
the attention of the Council of the League of Nations. In
1925 the Austrian Government had attached a reservation to
its signature of the Convention on Opium and Drugs of that
year to which, with other States. Austria had been invited
WAR TRIAL LN BAMGLA DESH
to become a part;. (This humanitarian convention, which
has much in common with the Genocide Convention in point
of structure, was negotiated at conferences held under the
auspices of the League of Nations.) That reservation invol¬
ved the non-acceptance of certain obligations which formed
parr of the system of control of the drug traffic devised by
the Conference. It was disputed whether or not Austria
could make this reservation without obtaining the assent of
the State which were parties to the Convention. The matter
was referred by the Council of the League of Nations to the
League Committee for the Progressive Codification of
International Law, which appointed a Sub-Committee, with
M. Promageot as rapporteur, to study the subiect. The
Report of that Sub-Committee will be found in League of
Nations Document C.357.M.I30.1927.V.. and the following
sentence may be extracted from it:
“In order that any reservation whatever may be
validly made in regard to a clause of the treaty, it is
_ essential that this reservation should be accepted by all
the contracting parries, as would have been the case if
it had been put forward in the course of the negotiations.
If not. the reservation, like the signatute to which it is
attached, is null and void.”
Thereupon, the Codification Committee appioved the
Report and sent it to the Council of the League of Nations.
The Council adopted it on June 17th, 1927, directed it to be
circulated to the Members of the League and requested “the
Secretary-General to be guided by the principles of the
Report regarding the necessity for acceptance by all the
contracting States when dealing in future with reservations
made after the close of a conference at which a convention
is concluded, subject, of course, to any special decisions taken
by the conference itself.”
The Council of the League of Nations had, of course, no
power to make law. What it did was to give its approval
APPENDICES
to the statement of the law prepared by Codification Commi¬
ttee. The law, as thus stated, was followed by the League
of Nations thereafter and has later been followed by the
United Nations, as we shall see in the case of the Genocide
Convention.
Since 1927. while multilateral conventions have varied
(as indeed they did before that date) in regard to clauses
dealing with reservations, the rule of law applicable to
reservations in the absence of any express provision has
remained clear. So far as the activities of the United Nations
are concerned, the Secretary-General—who is in a position
to know—stated in his Report on “Reservations to Multila¬
teral Conventions”, dated September 20th, 1950 (A.1372), to
the General Assembly :
“5. In the absence of stipulations in a particular con¬
vention regarding the procedure to be followed in the
making and accepting of reservations, the Secretary-
General. in his capacity as depositary, has held to the
broad principles that a reservation may be definitively
accepted only after it has been ascertained that there is
no objection on the part of any of the other States directly
concerned…’’
‘7. In following the practice referred to above, the
Secretary-General has of course done no more than follow
the practice already established by the League of
Nations…”
In particular, he cited (in paragraphs 11 to 16 of that
Report) four instances of the practice, and it is instructive
to note that the first two occurred in the same year as that
in which the Genocide Convention was approved by the
General Assembly and opened for signature, and before that
took place. The first was the reservation which the United
States of America desired to attach to its adherence to the
Constitution of the World Health Organization. The
Secretary-General says (paragraph 12) :
284
WAK TRIAL IN BANGLA DtSH
”12. …Only after a unanimous acceptance by the
[World Health] Assembly of the ratification as not
inconsistent with the Constitution did the Secretary-
General proceed with bis notification that the United
States had become a party.”
This Constitution entered into force on April 7th, 1948.
The second instance is contained in the following paragraph
13 of his Report :
“13. Prior to the entry into force of the Constitution
of the International Refugee Organization, the Secretary-
General circulated the text of reservations made by several
States in accepting that Constitution. Finally, when the
last instrument of acceptance necessary to permit the entry
into force had been deposited, the Secretary-General so
notified the interested States, requesting their observations
before a specified date. Only after that date bad passed
did he declare that the Constitution bad entered into
force.”
This Constitution entered into force on August 20th. 1948.
The Genocide Convention was approved by the General
Assembly on December 9th. 1948, and was opened for signa¬
ture two days later.
The other two instances cited by the Secretary-General
relate to reservations made to a Protocol modifying the Gene¬
ral Agreement on Tariffs and Trade by the Union of South
Africa and Southern Rhodesia in 1949. (These four instances
are described in some detail in the American Journal of Inter¬
national Law. Vol. 44, January 1950, pp. 120-127.)
Again, the Secretary-General’s representative said to the
Court on April 10th, 1951. that
“The principle which the Secretary-General has
heretofore followed is based on the theory that all the
States most directly interested must consent to reserva-
285
APPENDICES
And early in the course of bis speech on April 11th, he said :
“…l should like to emphasize that the Secretary-
General’s practice is a continuation of that constantly fol¬
lowed by the League of Nations.”
It has been objected that the statement quoted above from
the Report of the Codification Committee made in 1927, which
has formed the basis of the practice of the League of Nations
and the United Nations since then, is not a rule of law but a
mere “administrative practice”. Upon this, three things may
be said : firstly, that the League Codification Committee
appear to have regarded it as rule of law ; secondly, that those
responsible for the preparation of the Harvard Research Draft
Convention on the Law of Treaties (see Articles 14. 15. 16 and
Comment) have accepted the principle of unanimous assent
to reservations laid down in 1927 as right : thirdly, there can
be no doubt that this principle, whether it is a rule of law or
8 rule of practice, was being followed by the United Nations
when the Genocide Convention was negotiated and opened for
s ignature.
While the principle of law governing reservations is clear,
it permits negotiating govemirents the greatest flexibility in
making express provisions in treaties. Against this background
of principle, the law does not dictate what practice they must
adopt, but leaves them free to do what suits ihim best in the
light of the nature of each convention and the circumsrances
in which it is being negotiated. The following are some illu¬
strations :
(a) The Department of International Law and Organiza¬
tion of the Pan-American Union has submitted to the Court
a valuable Statement dated December 14th. 1950. from which
it appears that, in the case of treaties negotiated within the
framework of the Pan-American Union, when a State, on
ratifying a treaty, makes or maintains a reservation is com¬
municated to the other signatory States, and the treaty does
nor enter into force between the reserving State and any State
286 WAR TRIAL IN BANGLA DESH
which declines to accept the reservation, but the reserving
State nevertheless becomes a party to the treaty.
There is, however, a significant difference between the Pan-
American Union procedure and the United Nations procedure,
which is expressed in this Statement as follows :
“The Pan-American Union procedure permits a Stare
to proceed with its ratification in spite of the fact that one
or more of the signatory States may object to the reserva¬
tion, whereas the procedure followed by the Secretary-
General of the United Nations has the effect of preventing
the particular State from becoming a party to the conven¬
tion if any single State among those which have already
ratified voices its disapproval of the proposed reservation.”
(Emphasis by the Judges.)
(Evidently the Pan-American Union has no doubt as to what
is the procedure of the United Nations and as to its effect.)
What is important to note is that the Pan-American
Union procedure rests upon rales adopted by the Governing
Body of the Union, as approved by the International Confer¬
ence of American States held at Lima in 1938 ; that is to say,
it depends on the prior agreement of the contracting parties.
(b) Another procedure is illustrated by the General Act for
the Pacific Settlement of International Disputes adopted at
Geneva on September 26th, 1928. Article 39 expressly provided
that “a party, in acceding to the present General Act, may
make his acceptance conditional upon” reservations in respect
of three kinds of dispute precisely specified in that Article.
The same practice was adopted in the Revised General Act
adopted by the General Assembly of the United Nations on
28th April. 1949.
Another instance is afforded by Article 64 of the 1950
Convention for the Protection of Human Rights and Funda¬
mental Freedoms as follows :
“1. Any State may, when signing this Convention
or when deporting its instrument of ratification, made a
APPENDICES
reservation in respect of any particular provision of the
Convention to the extent that any law then in force in
its territory is not in conformity with the provision.
Reservations of a general character shall not be permitted
under this Article.
2. Any reservation made under this Article shall
contain a brief statement of the law concerned.”
Again, the Convention on the Declaration of Death of
Missing Persons, of 1950, negotiated by the General Assembly
of the United Nations, a fiords, in Article 19, an example of
an express power to attach any reservations to an instrument
of accession, coupled with an express provision permitting
any contracting State which does not accept any reservation,
to notify the Secretary-General “that it considers such acces¬
sion as not having entered into force between the State
making the reservation and the State not accepting it. In
such case the Convention shall be considered as not being in
force between such two States :
(c) Other instances might be noted in which express
provisions were included in multilateral conventions, or col¬
lateral agreements : prescribing the parts of the conven¬
tions to which reservations might freely be made ; providing
a special measure of control over reservations or a special
regimen of consent ; or otherwise enabling States to become
parties to the conventions with limited obligations. Reference
may be made to the following :
Convention on the Simplification of Customs Formalities.
Geneva November 3rd, 1932; Protocol of the same date.
Convention relating to Economic Statistics, Geneva.
December 14th, 1926 : Art. 17. and Protocol of the
same date : as amended by Protocol of December 9rh,
1948.
Convention on the Supression of Counterfeiting Currency,
Geneva. April 20th, 1929 ; Protocol of the same date.
288 WAR TRIAL IN BANGLA DLSH
Sanitary Convention for Aerial Navigation, The Hague,
April 12th, 1933 : An. 67.
Convention for the Prevention and Punishment of Terro¬
rism, Geneva. November 16th, 1937 : Art. 23.
Convention on Road Traffic. Geneva, September 19th,
1949 : Art. 2 (I), and Final Act of the Conference on
Road and Motor Transport : paragraph 7
Protocol on Road Signs and Signals, Geneva, September
19th, 1949 ; and Final Act of the Conference on Road
and Motor Transport : paragraph 7.
In such cases the negotiating governments in effect agree
in uJvancc they would rather have a State become a party to
the convention minus certain provisions than not at all. But
there is a fundamental difference between reservations per¬
mitted in advance by the treaty and ex post facto claims by
States that such and such a reservation is compatible with
the object and purpose of a convention and that, therefore,
a State has a unilateral right to make it, subject to its claim
being challenged on tbc ground of compatibility. The tact
that there is a recognized method of ear-making in advance
aiid by agreement those provisions against which a reserva¬
tion will be permitted is the strongest possible evidence that
the governments negotiating the Genocide Convention did
not contemplate giving to intending parties a unilateral right
of making reservations deemed by them to be compatible with
the purpose of the Convention.
(d) Another practice is illustrated by the Havana Con¬
vention on Private Internation Law of 1928 (the Bustamante
Code), Article 3 of which provides that:
“Each one of the contracting Republics, when ratify¬
ing the present Convention, may declare that it reserves
acceptance of one or more articles of the annexed Code,
and the provisions to which the reservation refers shall
not be binding upon it.”
APPENDICES
289
The value of permitting flexibility to the parties in pro¬
viding for reservations was remarked upon by the Secretary-
General in paragraph 47 (c) of his Report to the General
Assembly on “Reservations to Multilateral Conventions,”
dated 20:h September. 1930. which is as follows :
“It is inevitable that any rule followed by the Secre¬
tary-General. in the absence of express provisions in the
convention, will not suit the circumstances of every
convention or every relationship proposed between given
parties. This difficulty can be met by the conscious use.
in the drafting of such a convention, of final articles best
adapted to any special situation. If , for example, it is
desired to forestall certain objections in order to mal/e a
convention acceptable to a maximum number of States.
it u always possible to include an article expressly appro¬
ving specified reservations * (Italics ours.) If it is desired
in special cases to permit signatories, and not only parties,
to reject proposed reservations, the League of Nations
formula mentioned above, used in the Convention for
the Prevention and Punishmenc of Terrorism, might be
applicable.”®
(Footnote 27 refers to Article 39 (I) of the Revised
General Act for the Pacific Settlement of International
Disputes; footnote 28 to Article 23 of the Convention on
Terrorism.)
Let us now see how the question of reservations was dealt
with during the preparation of the Genocide Convention.
The Secretary-General prepared a “Draft Convention on the
Ctime of Genocide,” in pursuance of a resolution of the
Economic and Social Council, and this document is dated 26th
June. 1947. It consisted of draft articles followed by
comments. The passage dealing with reservations is as
follows :
290 WAR TRIAL IN BANGLA DESH
“Article XVII
(Reservations.) No proposition is put forward for the
moment
Comment.
At the present stage of the preparatory work, it is doubtful
whether reservations ought to be permitted and whether an
article relating to reservations ought to be included in the
Convention.
We shail restrict ourselves to the following remarks :
(1) It would seem that reservations of a general scope
have no place in a convention of this kind which does
not deal with the private interests of a Stare, but with
preservation of an element af international order.
For example, the convention will or will not protect
this or that human group. It is unthinkable that in
this respect the scope of rhe convention should vary
according to the reservations possibly accompanying
accession by certain States.
(2) Perhaps in the course of discussion in the General
Assembly it will be possible to allow certain limited
reservations.
These reservations might be of two kinds: either
reservations which would be defined by the conven¬
tion itself, and which all the States would have the
option to express, or questions of detail which some
States might wish to reserve and which the General
Assembly might decide to allow.”
It is evident from the final paragraph that what the
Secretary-General had in mind was that it was open to the
delegates eithet to define any permissible reservations in the
Convention itself or to obtain for them the express permission
of the General Assembly, that is to say that, in accordance
with a not infrequent practice, the permitted reservations
should be agreed in advance. Instances of this practice have
already been given; it was not adopted in this case.
’ENDICE S
291
The Draft Convention was first referred to all the Member
Scates for comment. The United States of America was the
only one that commented on this part of the Draft, and its
comment was limited to the statement ; “An article on the
subject of ‘reservations’ should be omitted. “The Draft was
then referred to a body known as the “Ad Hoc Committee
on Genocide”, which appointed a sub-committee, consisting
of the representatives of Poland, the Union of Soviet Socialist
Republics, and the United States of America, to study it.
This sub-committee “saw no need for any reservations”
(Document E/AC/25/10, page 5). and this conclusion was
unanimously adopted by the full Ad Hoc Committee on
27th April. 1948 (E/AC/25/SR/23. page 7). Accordingly, the
Draft prepared, as revised by the Ad Hoc Committee, con¬
tained no provision concerning reservations. No proposal
for a reservations article was made in the Sixth Committee
or in the plenary meetings of the General Assembly and.
accordingly, the text of the Convention as now in force con¬
tains no provision on this subject.
After the Sixth Committee bad approved the final text of
the Convention at its 132nd and 133rd meetings, on the 1st
and 2nd December, 1948, the representatives of several
governments reserved their position in regard to this or that
article or in regard to the whole Convention, and a summary
of this discussion will be found on pages 83 and 89 of the
printed volume containing inter alia the “Written Statement
of the Secretary-General” submitted to the Court. In the
course of that discussion, the rapporteur, M. Spiropoulos.
referring to this discussion, said :
“Those reservations could be made at the time of
the signature of the Convention. However, if a govern¬
ment made reservations regarding a convention, it could
be considered as a party to that convention unless the
other contracting parties accepted those reservations,
expressly or tacitly.”
WAR TRIAL IN BANGLA DESH
The Chairman of the Sixth Committee, in closing the dis¬
cussion on this point, said that “the purport of those state¬
ments would be recorded in the summary record of the
meeting in the usual way. [He] felt that there was no neces¬
sity to open a discussion on the legal implications of the
reservations which had been made.”
We do not find it possible to infer from the manner In
which the question of reservations was dealt with throughout
the preparatory work that there was any agreement to confer
upon States desiring to sign, ratify or accede to this Conven¬
tion any right to make reservations which would not be dealt
with in accordance with the normal law and practice obser¬
ved by the United Nations.
To summarize our argument up to this point, we are of
the opinion :
(a) that the existing rule of international law. and the
current practice of the United Nations, are to the effect that,
without the consent of all the parties, a reservation proposed
in relation to multilateral convention cannot become effec¬
tive and the reserving State cannot become a party thereto :
(b) that the States negotiating a convention are free to
modify both the rule and the practice by making the neces¬
sary express provision in the convention and frequently
do so ;
(c) that the States negotiating the Genocide Convention
did not do so ;
(d) that therefore they contracted on the basis that the
existing law and. the current practice would apply in the
usual way to ary reservations that might be proposed.
In these circumstances, can it be conceded that it was
agreed by the negotiating governments, dnring the prepara¬
tion of the Genocide Convention, that reservation* would be
permitted and accepted by the parties to the Convention in
APPENDICES 293
so far as they might be compatible with the object and pur¬
pose of the Convention ; and further that each of the exis¬
ting parties to the Convention should appraise the admissi¬
bility of the reservation, individually and from its own
standpoint, and determine its subsequent action, in the light
of this criterion ?
This attempt to classify reservations into “compatible’ 1 and
“incompatible” would involve a corresponding classification
of the provisions of the Convention into two categories—of
minor and major importance : when a particular provision
formed part of “the object and purpose of the Convention”,
a reservation made against it would be regarded as “incom¬
patible.” and the reserving State would not be considered as
a party to Convention ; when a particular provision did not
form part of “the object and purpose,” any party which
considered a reservation made against it to be “compatible”
might regard the reserving State as a party. Any State
desiring to become a party to the Convention would be at
liberty to assert that a particular provision was not a part
of “the object and purpose;” that a reservation against it was
“compatible with the object and purpose of tbe Convention”,
and that it had therefore a right to make that reservation-
subject always to an objection by any of the existing parties
on the ground that the reservation is not “compatible.”
We regret that, for the following reasons, we are unable
ro accept this doctrine :
(a) It propounds a new rule for which we can find no
legal basis. We can discover no trace of any authority in
any decision of this Court or of the Permanent Court of Inter¬
national Justice or any other international tribunal, or in
any text-book, in support of the existence of such a distinc¬
tion between the provisions of a treaty for the purpose of
making reservations, or of a power being conferred upon a
State to make such a distinction and base a reservation upon
it Nor can we find any evidence, in the law and practice of
the United Nations, of any such distinction or power.
294
WAR TRIAL IN BANGLA
If, therefore, such a rule is to apply to the Genocide Con¬
vention, it would have to be deduced from the intentions of
the parties. It must be remembered that representatives of
the governments which negotiated this Convention were in
complete control of its machinery, of its procedural clauses,
and were free to insert in the text any stipulations in the matter
of reservations which seemed to them to be suitable They
refrained from doing so, although, as has been shown, the
question of making provision for reservations was discussed at
several stages during the negotiations. It is difficult to see
how their intention that reservations should be governed by
some new criterion of “compatibility” can be deduced from
the fact that they decided against making the obvious and
simple provision required to give effect to such intention. It
they had intended to permit cerain reservations, there was
available a well recognized method of doing so. to which we
have already referred, namely, for them to agree in advance
upon, and specify in the text of the Convention, those reserva¬
tions which their governments were prepared to accept. As
we have seen, the Secretary-General, in the Draft of this
Convention prepared by him and dated 26th June. 1947 drew
attention to this procedure, so that it must have been present
to the minds of the governments. But the governments res¬
ponsible for this Convention adopted no such procedure and
agreed upon the text on the basis of the existing law and prac¬
tice, which require unanimous assert to all reservations.
Can it he said. then, that the governments which negotiated
and voted for this Convention through their delegates did so
in the belief that any State when signing, ratifying or acceding
to it would he at liberty to divide its provisions into those
which do. and those which do not, form part of “the object
and purpose of the Convention 1 ‘ and to make reservations
against any of the latter, which would thereupon take effect
without the consent of the other parties ? We can find no
evidence of any such belief.
APPENDICES
295
On the contrary, such a rule is so new. and rhe test of the
compatibility of a reservation with “the object and purpose of
the Convention” is so difficult to apply, that it is inconceivable
that the General Assembly could have passed the matter over
in silence and assumed that all the contracting States were
fully aware of the existence of such a test in international law
and practice and were capable of applying it correctly and
effectively. We feel bound therefore to conclude that the
parties entered into this Convention on the basis of the exist¬
ing law and practice, and in these circumstances we do not
see how one can impute to them the intention to adopt a
new and different rule.
(b) Moreover, we have difficulty in seeing how the new
rule can work. Wben a new rule is proposed for the solu¬
tion of disputes, it should be easy to apply and calculated
to produce final and consistent results. We do not think
that the rule under examination satisfies either of these
requirements.
(i) It hinges on the expression “if the reservatin is com¬
patible with the object and purpose of the Convention.”
What is the “object and purpose” of the Genocide Conven¬
tion ? To repress genocide ? Of course; but is it more than
that ? Does it comprise any or all of the enforcement articles
of the Convention ? That is the heart of the matter. One
has only to look at them to realize the importance of this
question, As we showed at the beginning of our Opinion,
these are the articles which are causing trouble.
(li) It is said chat on the basis of the criterion of com¬
patibility each party should make its own individual appraisal
296 WAR TRIAL IN BANGLA DESH
an; reservation that has been objected to is left to subjective
determination b; individual States, it will only be objecti¬
vely determined when the question of the compatibility of
the reservation is referred to judicial decision; but this proce¬
dure, for various reasons, may never be resorted to by the
parties. If and when the question is judicially determined,
the result will be, according as the reservation is judicially
found to be compatible or incompatible, either that the
objecting State or States muse, for the first time, recognize
the reserving State as being also a party to the Conven¬
tion, or that the reserving State ceases to be a party in rela¬
tion to those other parties which have accepted the reserva¬
tion. Such a state of things can only cause the utmost
confusion among the interested States. This lack of finality
or certainty is especially to be deprecated in the case of the
operation of the clauses relating to the coming into force of
the Convention (Article XIII) and its termination by denuncia¬
tions (Article XV). We may add that, as we understand
the questions referred to the Court, what the General
Assembly wishes to know is whether in given circumstances
a reserving State can or cannot be regarded by the law as a
party to the treaty—not whether, or when, an existing party,
in the light of its individual appraisal, may consider a
reserving State as a party or not.
(iii) It is suggested that certain contracting States hold¬
ing different opinions upon the compatibility of a reservation
may decide to settle the dispute which thus arises by adopting
the procedure laid down in Article IX of the Convention ;
this article provides for the compulsory jurisdiction of the
Court, but it should be noted that eight States have already
made reservations against, or in relation to, this very article.
(iv) With regard to objections which are not based on
incompatibility, the suggestion is made that the reserving State
and the objecting State should enter into discussion and that
an understanding between them would have the effect that the
Convendon would enter into force between tbeai, except for
APPENDICES
297
the clauses affected by the reservation. But we cannot regard
to admissibility of a reservation as a private affair to be
settled between pairs of States. Moreover, it is clear that
different pairs of States may come to different understandings
upon the same reservations and that some States may consider
a reserving State to be a patty while others do not.
(v) When the question of reservations to this Convention
first arose in the fifth session of the General Assembly, the
conditions required for bringing the Convention into force did
not yet exist. It was necessary to consider how Article XIII.
which requires twenty ratifications or accessions to bring rhe
Convention into force, was going to work in the event of some
of the ratifications or accessions accompanied by reservations.
Suppose that one of the first twenty ratifications or accessions
tendered to the Secretary-General had been accompanied by a
reservation which one or more the State previously ratifying
or acceding were prepared to accept, while the other States
previously ratifying or acceding were net prepared to accept
it, what is the position according to the new rule ? In the view
of some Stares the requirement of twenty ratifications or
accessions would have been satisfied and the Convention would
enter into force on the ninetieth day after the date of the last
deposit. In the view of others, the requirement would not 1%
satisfied. Would the Convention be in force ? And suppose
later that it was judicially determined that the reservation
referred to was not “compatible with the object and purpose
of the Convention.” what would happen 7 Would the Con¬
vention cease to be in force from that moment ? And would
it be regarded ab initio as never having been in force ? Such
problems are bound to arise when the question whether a
State is or is not a party remains in doubt, and, as we have
already indicated, the importance of that question is not con¬
fined to Article XIII. In addressing the Court on April 10th,
1S51, the representative of the Secretary-General showed, by
means of numerous examples, how essential it is to the dis¬
charge of his functions as depositary of this Convention and
296
WAR TRIAL IN BANGLA DESK
many other multilateral conventions that he she uld know
definitely whether a State is or is not a party ; he told the
Court that the Secretary-General is the depositary of more
than sixty multilateral conventions which have been drafted or
revised under the auspices of the United Nations.
We regret, therefore, that we do not find in the new rule
that has been proposed any reliable means of solving the
problems to which reservations to this Convention have
given and may continue to give rise, nor any means that are
likely to produce final and consistent results.
We belive that the integrity of the terms of the Con¬
vention is of greater importance than mere universality in
its acceptance. While is it undoubtedly true that the repre¬
sentatives of the governments, in drafting and adopting the
Genocide Convention, wished to see as many States become
parties to it as possible, it was certainly not their intention
to achieve universality at any price. There is no evidence
to show that they desired to secure wide acceptance of the
Convention even at the expense of the integrity or uniformity
of its terms, irrespective of the wishes of those States which
accepted all the obligations under it.
It is an undeniable fact that the tendency of all interna¬
tional activities in recent times has been towards the promo¬
tion of the common welfare of the international community
with a corresponding restriction of the sovereign power of
individual States. So. when a common effort is made to
promote a great humanitarian object, as in the case of the
Genocide Convention, every interested State naturally expects
every ocher interested State not to seek any individual
APPENDICES
299
universality at any price that forms the first consideration.
It is rather the acceptance of common obligations—keeping
step with like-minded States—in order to attain a high objec¬
tive for all humanity, that is of paramount importance! Such
being the case, the conclusion is irresistible that it is neces¬
sary to apply to the Genocide Convention with even greater
exactitude than ever the existing rule which requires the
consent of all patties to any reservation to a multilateral
convention. In the interests of the international community,
it would be better to lose as a party to Convention a State
which insists in face of objections on a modification of the
terms of the Convention, than to permit it to become a
party against the wish of a State or States which have
irrevocably and unconditionally accepted all the obligations
of the Convention.
The Opinion of tbe Court seeks to limit the operation of
the new rule to the Genocide Convention. We foresee diffi¬
culty in finding a criterion which will establish the unique¬
ness of this Convention and will differentiate it from the
other humanitarian conventions which have been, or will be.
negotiated under the auspices of the United Nations or its
Specialized Agencies and adopted by them. But if the
Genocide Convention is in any way unique, its uniqueness
consists in the importance of regarding it as a whole and main¬
taining the integrity and indivisibility of its text, whereas it
seems to us that the new rule propounded by the majority
will encourage the making of reservations.
In conclusion, the enormity of the crime of genocide can
hardly be exaggerated, and any treaty for its repression deser¬
ves the most generous inrerpretation ; but the Genocide
Convention is an instrument which is intended to produce
legal effects by creating legal obligations between the parties
to it. and we have therefore felt it necessary to examine it
against the background of law.
300 WAR TRIAL IN BANGLA DESH
On Question I our reply is in the negative.
Accordingly. Question II does not arise for us.
On Question III we dissent from the reply given by the
majority ; having regard to the dominating importance that
we attach to the issues raised by Question I. we do not pro¬
pose to add the reasons for our dissent upon Question III.
(Signed) J. G. GUERRERO.
( Signed ) Arnold D. McNair.
(Signed) JOHN E. REAL’.
(Signed) HSU Mo.
APPENDICES
301
DISSENTING OPINION OF M. ALVAREZ
The General Assembly of the United Nations, at its
plenary session of November 16th. 1950. asked the Inter¬
national Court of Justice for an Opinion upon certain ques¬
tions concerning reservations to the Convention for the Pre¬
vention and Punishment of the Crime of Genocide: the
admission of these reservations had evoked objections on the
part of certain States, as well as differences of opinion among
the representatives of the United Nations themselves.
As was well said by the Attorney-General of the United
Kingdom in his oral statement before the Court, this Court
has the power and the duty both to devote itself in the first
place to the examination of question relating to the Conven¬
tion on Genocide and to formulate its conclusion in such a
manner that they may be. as far as possible, applicable, not
only to conventions of this type which may be drawn up
within the framework of the United Nations but also to
multilateral conventions in general.
Moreover, it is natural that the Court should proceed in
this manner : it should, in order that its Opinion may be
properly founded, view the subject from a broader angle
than that indicated in the Request transmitted to it by the
Assembly of the United Nations.
It has Been pointed out, in the course of the discussions
which have taken place upon this subject, that there are no
precise rules or precedents well established in international
law regarding reservations to multilateral conventions in
general; three kinds of practices have been mentioned to us.
one of which was called the Pan-American practice.
302 WAR TRIAL IN BANGLA OE5H
Up to the present time, multilateral conventions have been
established under the individualist system, based upon the
absolute sovereignty of States. According to this system.
States are only bound to the extent to which they consent to
obliged; consequently, they are free to make reservations
to these conventions as they please. Furthermore, these con¬
ventions have become more and more numerous since the
beginning of this century and relate to a wide diversity of
matters: they constitute an important part of what is called
international legislation.
The multiplicity of reservations made to these multilateral
conventions, together with the adhesions to them and the
denunciations of them, has produced much uncettainry.
because it is difficult to be sure as to the States between
which these conventions are in force. A real crisis, to which
some persons—including myself—have drawn attention for
some time past, has thus arisen in international treaty law.
The task of the Secretary-General of the League of Nations
and after that the United Nations in connection with the
registration of these conventions has become extremely
complicated; and it is without doubt partly to remedy this
situation that General Assembly of the United Nations has
sent to the Court the Request for an Opinion which is now
before us.
II
In appraising multilateral conventions—and specifically
that on genocide—in the future, we shall be forced to aban¬
don traditional criteria, because we are now confronted with
an international situation very different from that which
existed before the last social cataclysm; the latter has caused
a profound and rapid evolution of facts and ideas in the
international sphere.
APPENDICES 303
Consequently, a very important point invites the considera¬
tion of the Court
According to current opinion, this Court has to apply
the principles of international law deemed to be in existence
at the moment when it delivers its judgment or opinion,
without considering whether they have undergone any more
or less sudden changes, or whether chey are in accord with
the new conditions of international life; if appertains—we
are told—to the International Law Commission created by
the United Nations to determine what modifications should
be made in international law.
That is a view which it is impossible to accept. As a
result of the great changes in international life that have
taken place since the last social cataclysm, it is necessary
that the Court should determine the present state of law in
each case which is brought before it and, when needed, act
constructively in this respect, all the more so because in
virtue of Resolution 171 of the General Assembly of the
United Nations of 1947, it is at liberty to develop inter¬
national law and indeed to create law, if that is necessary, for
it is impossible to define exactly where the development of
this law ends and its creation begins. To proceed otherwise
would be to fail to understand the nature of international
law. which must always reflect the international life of which
it is bom, if it is not to be discredited.
The method I have just indicated is that applied to
domestic constitutional law. If, for example, consequently
upon a revolution, a new republican political regime establi¬
shes itself in the place of a monarchy, it is obvious that both
old and new institutions must at once be applied and inter¬
preted in conformity with the new regime.
There are stronger reasons why the same course should be
followed in regard to international law. After the social
cataclysm which we have just passed through, a new order
has arisen and. with it, a new international law. We must
304 WAR TRIAL IN BANGLA DESH
therefore apply and interpret both old and new institutions
in conformity with both this new order and this new law.
Ill
In order not to go outside the scope of the Request for
an Opinion. I will confine myself to indicating the charac¬
teristics of the new international law so far as concerns
multilateral conventions of a special character.
In this respect, this law includes within its domain four
categories of multilateral conventions, three of which were
formerly unknown : (a) those which seek to develop world
international organization or to establish regional organiza¬
tions, such as the European organization which is of such
great present-day interest; (b) those which seek to determine
the territorial status of certain States: such conventions have
existed iD Europe since the beginning of the XIXth century,
and have constituted what may be called “European public
law”- (c) conventions which seek to establish new and impor¬
tant principles of international law; (d) conventions seeking
to regulate matters of a social or humanitarian interest with
a view to imploring the position of individuals.
It is among the conventions referred to under (c) and
(d) above that we find the Convention on Geaocide. The
new international law, reflecting the new orientation of the
legal conscience of the nations, condemns genocide—as it
condemns war—as a crime against civilization, although this
was not admitted till quite recently.
Conventions of the above four categories present charac¬
teristics which differentiate them markedly from ordinary
multilateral conventions.
To begin with, they have a universal character; they are,
in a sense, the Constitution of international society, the new
international constitutional law. They ate not established for
the benefit of private interests but for that of the general
interest; they impose obligations upon States without grant¬
ing them rights, and in this respect are unlike ordinary
APPENDICES
305
multilateral conventions which confer rights as well as
obligations upon their parties.
Furthermore, these conventions are not merely formulated
under the auspices of the United Nations, but in its Assem¬
blies; they are discussed there at length by all States, who
have the opportunity to comment upon them as they see fit;
and the conventions which are proposed by these Assemblies
can be modified by them up to the last moment.
The decisions of these Assemblies are taken upon a
majority vote (Art. 18 of the Charter). The old unanimity
rule is thus abolished, or rather it exists only in the exceptio¬
nal cases mentioned in the said Article 18. This rule of the
majority vote is, moreover, in conformity with our ideas of
international organization, of the interdependence of States
and of the general interest: national sovereignty has to bow-
before the will of the majority by which this general interest
is represented.
(Let us note, in passing, that the judgments and opinions
of this Court are given on a majority vote.)
Thus, in fact, these Assemblies of the United Nations are,
in these cases, fulfilling a legislative function.
Ic is convenient to recall that at times certain Stares have
given the General Assembly of the United Nations truly legis¬
lative powers by submitting themselves in advance to its
decisions upon questions which they have referred to it We
find a typical case in the peace treaty signed between Italy
and the four Great Powers, in the part which relates to the
future of the former Italian colonies. The General Assembly
of 1949 determined their fate ; and its resolution concerning
Eritrea contains the broad outline of a Constitution.
In addition to the multilateral conventions which have
just been mentioned, the Assemblies of the United Nations
pass Declarations and Resolutions of a very important nature.
These Declarations do not require ratification, and by reason
WAR TRIAL IN BANGLA DESH
306
of their nature, are not susceptible to reservations ; the; have
not yet acquired a binding character, bur they may acquire it
if they receive the support of public opinion, which in several
cases has condemned an act contrary to a Declaration with
more force than if it had been a mere breach of a convention
of minor importance.
Finally, the General Assembly of the United Nations is the
meeting place where States discuss political matters of general
interest (open diplomacy) : in doing so. the Assembly is in a
good position to reconcile Law and Politics.
In short, the Assembly of the United Nations is tending to
become an actual international legislative power. In order
that it may actually become such a power, all that is needed
is that governments and public opinion should give it support.
Public opinion is an important factor which comes into play
in the new international law.
Certain consequences of great practical importance ensue
from the nature of the four categories of multilateral conven¬
tions which have just been mentioned, and from the manner in
which they were drawn up.
To begin with, the said conventions are almost real inter¬
national laws.
Secondly, these conventions signed by a great majority of
States ought to be binding upon the other, even though they
have not expressly accepted them : such conventions establish
a kind of binding custom, or rather principles which must be
observed by all States by reason of their interdependence and
of the existence of an international organization.
It follows from the foregoing that the said conventions
must not be interpreted with reference to the preparatory
work which preceded them ; they are distinct from that work
and have acquired a life of their own ; they can be compared
to ships which leave the yards in which they have been built,
and sail away independently, no longer attached to the dock¬
yard. These conventions must be interpreted without regard
to the past, and only with regard to the future.
APPENDICES 307
Nor muse they be interpreted in the light of arguments
drawn from domestic contract law. as their nature is entirely
different.
IV
Let us nest consider the particular question of the reserva¬
tions to which the conventions of which I have just spoken—
and in particular that on genocide—may be subjected.
These conventions, by reason of their nn-ure and of the
manner in which they have been formulated, constitute an
indivisible whole. Therefore, they must not te made the sub¬
ject of reservations, for that would be contrary to the purposes
at which they are aimed, namely, the general interest and also
the social interest.
To support this view, one may refer to what has happened
in the case of certain instruments of our international organi¬
sation, in particular the Charter of the United Nations and
the Statute of the International Court of Justice. After long
discussions preceding their formulation, these instruments
were accepted without reservation by all participating States;
and, at the present time, countries which desire to take part in
the United Nations are prepared to sign this Charter and this
Statute upon the same terms.
These instruments, to be sure, have given occasion to many
criticisms, and if the States had been allowed to make reserva¬
tions in regard to them they would have done so; nevertheless,
they accepted them as they stood, because they could not do
otherwise. A psychological factor, in fact, comes into con¬
sideration in regard to these instruments : States are unwilling
to remain aloof from these conventions, for, if they did so.
they would find themselves in an awkward position in inter¬
national society.
Those who advocate the admissibility of reservations even
in the four categories of statements to which I have referred.
308 WAR TRIAL IN BANGLA DESH
argue chat States desire to make reservations, and that if they
were not allowed to. they would not sign these instruments.
To this it can be replied that, when the said conventions
were debated in the Assemblies of the United Nations, the
States had an opportunity of making criticisms or objections
on any points that they pleased, and that, consequently, they
cannot afterwards return to those points. It would be inadmis¬
sible that an instrument approved by the Assembly of the
United Nations and designed to form one of the foundations
of our international life could be destroyed, or even shaken,
by the independent action of one or more States, which
actually rook part in drawing up the conventions concerned.
To avoid these difficulties, conventions of the kind referred
to above ought to be established in their essential points
without going into details, so that they can be accepted by
the greatest possible number of States ; a less ambitious pact,
upon which all parties are in agreement, is preferable to a
more elaborate pact to which numerous reservations have
been made.
As regards the Convention on Genocide in particular, it is
contended that it may be made the subject of reservations
because this possibility was mentioned in the General Assembly
of the United Nations ; and because certain States gave their
adhesion to this Convention subject to reservations, and,
finally, because tbe matter of reservations is mentioned in the
Request for the opinion of the Court.
To this it can be replied that if reservations to this Con¬
vention are contemplated, that is a consequence of the sur¬
vival of old-fashioned ideas on multilateral conventions ;
people are still considering this subject in relation to the old
criterion, without taking its new aspect into consideration.
It has been proposed to seek a solution of the problem
stated in the Request by having recourse to doctrinal or
practical systems. According to one point of view, reserva¬
tions. to be valid, must be accepted by all the contracting
APPENDICES 309
States. Following another more recent system—that adopted
by this Court—reservations are inadmissible if they are not
compatible with the aims and objects of the Convention.
Neither of these points of view is satisfactory. So far as
the latter is concerned. States making reservations could
agrue that their reservations were not in conflict with the
aim of Convention, while States objecting to the reservations
must allege the opposite. And. when one realizes that in
this event it would be the duty of the International Court of
Justice ro settle the dispute, this tribunal will find itself so
overburdened with controversies of rhis nature that its func¬
tions would be utterly distorted.
The best solution would be to establish plainiy that reser¬
vations are inadmissible in the four categories of multilateral
conventions which have been mentioned, and in particular
in chat on gerocide : the psychological factor which has been
referred to would then come into play, and States would
sign these conventions without reservations.
If. however, the admissibility of reservations in these
conventions is to be maintained, it would be necessary that
the conventions should state this fact expressely. and explain
the legal efTect that they would possess. In that event the
said conventions would become ordinary multilateral con¬
ventions : and they would no longer be fundamental conven¬
tions of international law.
If the scope of the reservations were not determined in
the convention itself, it would have to be admitted that they
would only involve the minimum legal result.
These results could then be as follows :
If the reservations proposed by a State are not accepted by
one or several others of the States parties to the convention,
reserving State is not to be considered as a party to the
convention.
If the reservations are accepted by the majority of other
States, then the convention is transformed, and other con-
310 WAR TRIAL IN BANGLA DESH
vention takes its place ; the States which have not accepted
the reservations are not parties to the new convention.
Finally, if the reservations are accepted by certain States
but objected to by others, then there is no convention at all.
V
The foregoing considerations regarding the new inter¬
national law ccnceming multilateral conventions of the kinds
indicated above, and in particular the Convention on Geno¬
cide, provide a new criterion which we.must employ in
finding a solution to the questions put to the Court in the
To the first of these questions. I reply with a categorical
NO : as I have just said, the Convention on Genocide cannot
admit of reservations. In any event, even if they were
allowed, they should produce the minimum of legal effect in
favour of the States making the reservation.
The second question does not fall to be considered, in
view of the reply given to Question I.
As regards Question III, I reply that legal effect must be
given to objections made to reservations by a State coming
within the categories stated in my paragraphs (a) and (b).
The conclusions which I have set forth may assist in
preventing States from making reservations to the Convention.
( Signed ) A. Alvarez.
Appendix I
PRINCIPLES OF INTERNATIONAL LAW RECOG¬
NIZED IN THE CHARTER OF THE NUREMBERG
TRIBUNAL AND IN THE JUDGMENT OF THE
TRIBUNAL*
Principle I
Any person who commits an act which constitutes a crime
under international law is responsible therefore and liable to
punishment.
Principle II
The fact that internal law does not impose a penalty for
an act which constitutes a crime under international law does
not relieve the person who committed the act from responsi¬
bility under international law.
Principle III
The fact that a person who committed an act which con-
stitues a crime under international law acted as Head of
Stare or responsible Government official does not relieve him
from responsibility under international law.
Principle IV
The fact that a person acted pursuant to order of his
Government or of a superior does not relieve him from respon¬
sibility under international law, provided a moral choice was
in fact possible to him.
Principle V
Any person charged with a crime under international
law has the right to a fair trial on the facts and law.
“Test adopted by the Comnmiion nt its second union in 1950, anj sub¬
mitted to the General Alterably n> a part of the Commission s report
covering the work of thst iniinn. The report, which alto contains
comrarntaiies on the principles, appears in Yearbook of ike Inter.
notional Law Commit non. 1950, vol. It.
312 WAR TRIAL IN BANGLA OESH
Principle VI
The crimes hereinafter set out are punishable as crimes
under international law :
(a) Crimes against peace :
(i) Planning, preparation, initiation or waging of a war
of aggression or as war in violation of international treaties,
agreements or assurances;
(ii) Participation in a common plan or conspiracy for the
accomplishment of any of the acts mentioned under (i).
(b) War crimes :
Violations of the laws or customs of war which include,
but are not limited to, murder, ill treatment or deportation to
slave-labour or for any other purpose of civilian population
of or in occupied territory, murder or ill-treatment of
prisoners of war, of persons on the seas, killing of hostages,
plunder of public or pnvate property, wanton destruction of
cities, towns, or villages, or devastation not justified by mili¬
tary necessity.
(c) Crimes against humanity :
Murder, extermination, enslavement, deportation and
other inhuman acts done against any civilian population, or
persecutions on political, racial or teligious grounds, when
such acts are done or such persecutions are carried on in
execution of or in connexion with any crime against peace or
any war crime.
Principle VII
Complicity in the commission of a crime against peace,
a war crime, or a crime against humanity as set forth in
Principle VI is a crime under international law.
Appendix J
DRAFT CODE OF OFFENCES AGAINST THE PEACE
AND SECURITY OF MANKIND*
Article 1
Offences against the peace and security of mankind, as
defined in this Code, are crimes under international law, for
which the responsible individuals shall be punished.
Article 2
The following acts are offences against the peace and
security of mankind :
(1) Any act of aggression, including the employment by
the authorities of a State of armed force against another State
for any purpose other than nitional or collective self-defence
or in pursuance of a Jecision or recommendation of a com¬
petent organ of the United Nations.
(2) Any threat by the authorities of a State to resort to
an act of aggression against another State.
( J) The preparation by the authorities of a State of the
employment of armed force against another State for any pur¬
pose other than national or collective self-defence or in pur¬
suance of a decision or recommendation of a competent organ
of the United Nations.
(4) The organization, or the encouragement of the organi¬
zation, by the authorities of a State, or armed bands within
its territory or any other territory for incursions into the
territory of another State, or the toleration of the organization
• Test adopted by the Commission at its sixth session. in 1951, anJ
submitted to tbe General Assembly as a part of the Commissicai’t
report covering tbe work of that sesiion. The report, which also
International Law Commission. 1951. Vol. II.
314
WAR TRIAL IN BANGLA DESH
ot such bands in its own territory, or the toleration of the use
bv such armed bands of its territory as a base of operations or
as a point of departure for incursions into the territory of
another State, as well as direct participation in or support of
such incursions.
(5) The undertaking or encouragement by the authorities
of a State of activities calculated to foment civil strife in
another State, or the toleration by the authorities of a State
of organized activities calculated to foment civil strife in an¬
other State.
(6) The undertaking or encouragement by the authorities
of a State of terrorist activities in another State or the tolera¬
tion by the authorities of a State of organized activities cal¬
culated to carry out terrorist acts in another State.
(7) Acts by the authorities of a State in violation of its
obligations under a treaty which is designed to ensure inter¬
national peace and security by means of restrictions or limita¬
tions on armaments, or on military training, or on fortifications,
or of other restrictions of the same character.
(8) The annexation by the authorities of a State of ter¬
ritory belonging to another State, by means of acts contrary
to international law.
(9) The intervention by the authorities of a State in the
internal or external affairs of another State, by means of
coercive measure of an economic or political character in
order to force its will and thereby obtain advantages of any
kind.
(10) Acts bv the authorities of a State or by private
individuals committed with intent to destroy, in whole or in
parr, a national, ethnic, racial or religious group as such,
including :
(i) Killing members of the group;
(11) Causing serious bodily or mental harm to mem
the group;
APPENDICES
315
(iii) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or
(iv) Imposing measures intended to prevent births within
the group:
(v) Forcibly transferring children of the group to another
(11) Inhuman acts such as murder, extermination, enslave¬
ment, deportation or persecutions committed against any
civilian population on social, political, racial, religious or
cultural grourds by the authorities of a State or by private
individuals acting at the instigation or with the toleration of
such authorities.
(12) Acts in violation of the laws or customs of war.
(13) Acts which constitute:
(i) Conspiracy to commit any of the offences defined
in the preceding paragraphs of this article; or
(ii) Direct incitement to commit any of the offences
defined in the preceding paragraphs of this article; or
(iii) Complicity in the commission of any of the offences
defined in the preceding paragraphs of this article; or
(ivj Attempts to commit any of the offences defined in
the preceding paragraphs of this article.
Article 3
The fact that a person acted as Head of State or as res¬
ponsible government official does not relieve him of responsi¬
bility for commitring any of the offences defined in this code.
Article 4
The fact that a person charged with an offence defined in
this Code acted pursuant to an order of his Government or
of a superior does not relieve him of responsibility in inter¬
national law if, in the circumstances at the time, it was
possible for him not to comply with that order.
Appendix K
RELEVANT PROVISIONS OF THE 1949 GENEVA
CONVENTION ON PRISONERS OF WAR
CONCERNING THE TRIAL
Article 1
Respect for the Convention.
The High Contracting Parties undertake to respect and to
ensure respect for the present Convention in all circumstances.
Article 2
Application for the Convention.
In addition to the provisions which shall he implemented
in peace time, the present Convention shnll apply to all cases
of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties,
even if the state of war is not recognised by one of them.
The Convention shall also apply to all cases of partial or
total occupation of the territory of a High Contracting
Party, even if the said occupation meets with no armed resis-
Although one of the Powers in conflict may not he a
party to the present Convention, the Powers who are parties
thereto shall remain bound by it in their mutual relations.
They shall furthermore be bound by the Convention in rela¬
tion to the said Power, if the latter accepts and applies the
provisions thereof.
Article 3
Conflicts not of an international character.
In the case of armed conflict not of an international
character occuring in the territory of one of the High Con¬
tracting Parties, each party to the conflict shall be bound to
apply, as a minimum, the following provisions :
(I) Persons taking no active part in the hostilities,
including members of armed forces who have laid down their
APPENDICES 317
armed and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on
race, colour, religion or faith, sex. birth or wealth, or any
other similar criteria.
To this end. the following acts are and shall remain prohi¬
bited at any time and in any place whatsoever with respect
to the above-mentioned persons :
(a) violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture :
(b) taking of hostages ;
(c) outrages upon personal dignity, in particular, humilia¬
ting and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees
which are recognised as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared
for.
Any humanitarian body, such as the International Com¬
mittee of the Red Cross, may offer its services to the Parties
to the conflict.
The Parties to the conflict should further endeavour to
bring into force, by means of special agreements, all or part
of the other provisions of the present Convention.
The application of the preceding provisions shall not
affect the legal status of the Parties to the conflict.
Article 4
Prisoners of war.
A. Prisoners of War. in the sense of the present Con¬
vention. are persons belonging to one of the following cate¬
gories, who have fallen into the power of the enemy :
(1) Members of the armed forces of a Party to the con¬
flict as well as members of militias or volunteer corps forming
part of such armed forces.
318
WAR TRIAL IN BANGLA DESH
(2) Members of other militias and members of other
volunteer corps, including those of organized resistance move¬
ments. belonging to a Part; to the conflict and operating in or
outside their own terrirorry even if this territory is occupied
provided that such militias or volunteer corps, including such
organized resistance movements, fulfil the following condi-
(n) that of being commanded by a person responsible
for his subordinates ;
(b) that of having a fixed distinctive sign recognizable
at a distance ;
(c) that of carrying arms openly ;
(d) that of conducting their operations in accordance
with the lavs and customs of war.
(3) Members of regular armed forces who profess
allegiance to a government or an authority not recognised by
the Detaining Power.
(4) Persons who accompany the armed forces without
actually being members thereof, such as civilian members of
military aircraft crews, war correspondents, supply con¬
tractors. members of labour units or of services responsible
for the welfare of the armed forces, provided that they have
received authorization from the armed forces which they
accompany, who shall provide them for that purpose with an
identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and
apprentices, of the merchant marine and the crews of civil
aircraft of the Parties to the conflict, who do not benefit by
more favourable treatment under any other provisions of
international law.
(6) Inhabitants of a non-occupicd territory, who on
the approach of the enemy spontaneously take up arms to
resist the invading forces, without having had time to form
themselves into regular armed units, provided they carry
arms openly and respect the laws and customs of war.
APPENDICES
319
B. The following shall likewise be treated as prisoners
of war under the present Convention :
(1) Persorts belonging, or having belonged, to the armed
forces of the occupied country, if the occupying Power con¬
siders it necessary by reason of such allegiance to intern them,
even though it has originally liberated them while hostilities
were going on outside the territory it occupies, in particular
where such persons have made an unsuccessful attempt to
rejoin the armed forces to which they belong and which are
engaged in combat, or where they fail to comply with .1
summons made to them with a view to internment.
(2) The rersons belonging to one of the categories
enumerated in the present Article, who have been received by
neutral or non-belligerent Powers on their territory and whom
these Powers are required to intem under international law.
without prejudice to any more favourable treatment which
these Powers may choose to give and with the exception of
Articles 8. 10.15. 30. fifth paragraph. 58-67. 92. 126 and.
where diplomatic relations exist between the Parties to the
conflict and the neutral or non-belligerent Power concerned,
those Articles concerning the Protecting Power. Where such
diplomatic relations exist, the Parties to a conflict on whom
these persons depend shall be allowed to perform towards
them the functions of a Protecting Power as provided in the
present Convention, without prejudice to the functions which
these Parties normally exercise in conformity with diplomatic
and consular usage and treaties.
C. This Article shall in no way affect the status of
medical personnel and chaplains as provided for in Art. 33
of the present Convention.
Article 5
Beginning and end of application.
The present Convention shall apply to the persons referred
to in Art. 4 from tke time they fall into the power of the
enemy and until their final release and repatriation.
320 WAR TRIAL IN BANGLA DESH
Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands
of the enemy, belong to any of the categories enumerated in
An. 4, such persons shall enjoy the protection of the present
Convention until such time as their status has been deter¬
mined by a competent tribunal.
Article 6
Special agreement.
In additions to the agreement expressly provided for in
Articles 10. 23. 28. 33. 60. 65. 66. 67. 72. 73. 75. 109. 110. IIP,
119. 122, and 132. the High Contracting Parties may conclude
other special agreements for all matters concerning which
rhey may deem it suitable to make separate provision. No
special agreement shall adversely affect the situation of
prisoners of war as defined by the present Convention, nor
restrict the rights which it confers upon them.
Prisoners of war shall continue to have the benefit of such
agreements as long as the Convention is applicable to them
except where express provisions to the contrary are contained
in the aforesaid or in subsequent agreements or where more
favourable measures have been taken with regard to them by
one or other of the Parties to the conflict.
Article 7
Non-renunciation of rights.
Prisoners of war may in no circumstances renounce in
part or in entirely the rights secured to them by the present
Convention, and by the special agreements referred to in the
foregoing Article, if such there be.
Article 8
Protecting Powers.
The present Convention shall be applied with the co¬
operation and under the scrutiny of the Protecting Powers
whose duty is to safeguard the interests of the Parties to
the conflict. For this purpose, the Protecting Powers may
APPENDICES
321
appoint, apart from their diplomatic or consular staff,
delegates from amongst their own nationals or the nationals
of other neutral Powers- The said delegates shall be subject
to the approval of the Pow er with which they are to carry
out their duties.
The parties to the conflict shall facilitate to the greatest
extent possible the task of the representatives or delegates of
the Protecting Powers.
The representatives or delegates of the Protecting Powers
shall not in any case exceed their mission under the present
Convention. They shall, in particular, take account of the
imperative necessities of security of the State wherein they
carry out their duties.
Article 9
Activities of the International Committee of the Red
Cross
The provisions of the present Convention constitute no
obstacle to the humanitarian activities which the International
Committee of the Red Cross or any other impartial humani¬
tarian organization may. subject to the consent of the Parties
to the conflict concerned, undertake for the protection of
prisoners of war and for their relief.
Article 10
Substitutes for Protecting Powers.
The High Contracting Parties ciay at any time agree to
entrust to an organization which offers all guarantees of
impartiality and efficacy the duties incumbent on the Protect¬
ing Powers by virtue of the present Convention.
When prisoners of war do not benefit or cease to benefit,
no matter for what reason, by the activities of a Protecting
Power or of an organization provided for in the first para¬
graph above, the Detaining Power shall request a neutral
State, or such an organization, to undertake the functions
322 WAR TRIAL IN BANGLA DESH
performed under the present Convention by a Protecting
Power designated by the Parties to a conflict.
If protection cannot be arranged accordingly, the Detaining
Power shall request or shall accept, subject to the provisions
of this Article, the offer of the services of a humanitarian
organization, such as the International Committee of the
Red Cross, to assume the humanitarian functions performed
by Protecting Power under the present Convention.
Any neutral power or any organization invited by the
Power concerned or offering itself for these purpose, shall be
required to act with a sense of responsibility towards the
Party to the conflict on which persons protected by the
present Convention depend, and shall be required to furnish
sufficient assurances that it is in a position to undertake the
appropriate functions and to discharge them impartially.
No derogation from the preceding provisions shall be
made by special agreements between Powers one of which is
restricted, even temporarily, in its freedom to negotiate with
the other Power or its allies by reason of military events,
more particularly where the whole, or a substantial part, of
the territory of the said Power is occupied.
Whenever in the present Convention mention is made of
a Protecting Power, such mention appjies to substitute organi¬
zation in the sense of the present Article.
Article 11
Conciliation procedure
In cases where they deem it advisable in the interest of
protected persons, particularly in cases of disagreement bet¬
ween the Parties to the coflict as to the application or inter¬
pretation of the provisions of the present Convention, the
Protecting Powers shall lend their good offices with a view to
settling the disagreement.
APPENDICES 323
For this purpose, each of the Protecting Powers may.
either at the invitation of one Party or on its own initiative,
propose to the Parties to the conflict a meeting of their repre¬
sentatives. and in particular of the authorities responsible for
prisoners of war. possibly on neutral territory suitably chosen.
The parties to the conflict shall be bound to give effect to the
proposals made to them for this purpose. The Protecting
Powers may, if necessary, propose for approval by the Patties
to the conflict a person belonging to a neutral Power, or
delegated by the International Committee of the Red Cross,
who shall be invited to take part in such a meeting.
Transfer of prisoners of war after their
arrival in camp
Article 46
Conditions.
The Detaining Power, when deciding upon the transfer
of prisoners of war. shall take into account the interests of
the prisoners themselves, more especially so as not to increase
the difficulty of their repatriation.
The transfer of prisoners of wat shall always be effected
humanely and in conditions nat less favourable than those
under which the forces of the Detaining Power are transferred.
Account shall always be taken of the climatic conditions to
which the prisoners of war are accustomed and the conditions
of cransfer shall in no case be prejudicial to their health.
The Detaining Power shall supply prisoners of war during
transfer with sufficient food and drinking water to keep them
in good health, likewise with necessary clothing, shelter and
medical attention. The Detaining Power shall take adequate
precautions specially in case of transport by sea or by air.
to ensure their safety during transfer, and shall draw up a
complete list of all transferred prisoners before their
departure.
Article 47
Circumstances precluding transfer.
Sick or wounded prisoners of war shall not be transferred
as long as their recovery may be endangered by the journey,
unless their safety imperatively demands it.
If the combat zone draws closer to a camp, the prisoners
of war in the said camp shall not be transferred unless their
transfer can be carried out in adequate conditions of safety,
or unless they are exposed to greater risks by remaining on
the spot than by being transferred.
Article 48
Procedure for transfer.
In the event of transfer, prisoners of war shall be officially
advised of their departure and of their new postal address.
Such noti6cations shall be given in time for them to pack
their luggage and inform their nexr of kin.
They shall be allowed to take with them their personal
effects, and the correspondence and parcels which have arriv¬
ed for them. The weight of such baggage may be limited,
if the conditions of transfer so require, to what each prisoner
can reasonably carry, which shall in no case be more than
twenty five kilogtams pec head.
Mail and parcels addressed to their former camp shall
be forwarded to them without delay. The camp commander
shall take, in agreement with the prisoners’ representatives,
any measures needed to ensure the transport of the prisoners’
community property and of the luggage they are unable to
take with them in consequence of restrictions imposed by
virtue of the second paragraph of this article.
The costs of transfers shall be borne by the Detaining
Power.
APPENDICES
Judicial Proceeding!
Article 99
Euential rule*.
I. General principle*.
No prisoner of war may be cried or sentenced for an act
which is not forbidden by the law of the Detaining Power or
by International Law, in force at the cime the said act was
committed.
No normal or physical coercion may be exerted on a pris¬
oner of war in order to induce him to admit himself guilty of
the act of which be is accused.
No prisoner of war may be convicted without having had
an opportunity to present his defence and the assistance of a
qualified advocate or counsel.
Article 100
II. Death Penalty.
Prisoners of war and the Protecting Powers shall be in¬
formed, as soon as possible, of the offences which are puni¬
shable by the death sentence under the laws of the Detaining
Other offences shall not thereafter be made punishable by
the death penalty without the concurrence of the Power on
which the prisoners of war depend.
The death sentence cannot be pronounced on a prisoner of
war unless the attention of the court bas. in accordance with
Article 87. second paragraph, been particularly called to the
fact that since the accused is not a national of the Detaining
Power, he is not bound to it by any duty of allegience. and
that he is in its power as the result of circumstances indepen¬
dent of his own will.
Article 101
IIL Delay in execution of the death penalty.
If the death penalty is pronounced on a prisoner of war,
the sentence shall not be executed before the expiration of a
326 WAR TRIAL IN BANGLA DHSH
period of at least six months from the date when the Protec¬
ting Power receives, at an indicated address, the detailed com¬
munication provided for in Article 107.
Article 102
Procedure.
I. Condition* for validity of sentence.
A prisoner of war can be validly sentenced only if the
sentence has been pronounced by the same courts according
to the same procedure as in the case of members of the armed
forces of the Detaining Power, and if furthermore, the provi¬
sions of the present (Convention) have been observed.
Article 103
II. Confinement awaiting trial (Deduction from sen¬
tence. treatment).
Judicial investigations relating to a prisoner of war shall
be conducted as rapidly as circumstances permit and so that
his trial shall take place as soon as possible. A prisoner of war
shall not be confined while awaiting trial unless a member of
the armed forces of the Detaining Power would be so confined
if he were accused of a similar offence, or if it is essential to
do so in the interest of national security. In no circumstances
shall this confinement exceed three months.
Any period spent by a prisoner of war in confinement
awaiting trial shall be deducted from any sentence of impri¬
sonment passed upon him and taken into account ir fixing any
penalty.
The provisions of Articles 97 and 98 of this (Convention)
shall apply to a prisoner of war, whilst in confinement
awaiting trial.
Article 104
III. Notification of proceedings.
In any case in which the Detaining Power has decided to
institute judicial proceedings against a prisoner of war. it shall
notify the Protecting Power as soon as possible and at least
APPENDICES
327
three weeks before the opening of the trial. This period of
three weeks shall run as from the day on which such notifi-
cation reaches the Protecting Power at the address previously
indicated by the latter to the Detaining Power.
The said notification shall contain the following inforraa-
(1) Surname and first names of the prisoner of war, his
rank, his army, regimental, personal or serial number, his date
of birth, and his profession or trade, if any;
(2) Place of internment or confinement;
(3) Specification of the charge or charges on which the
prisoner of war is to be arraigned, giving the legal provisions
applicable;
(4) Designation of the court which will try the case, like-
wise the date and place fixed for the opening.
The same communication shall be made by the Detaining
Power to the prisoners’ representative.
If no evidence is submitted, at the opening of a trial that
the notification referred to above was received by the Protec¬
ting Power, by the prisoner of war and by the prisoners’ re¬
presentative concerned, at least three weeks before the open¬
ing of the trial, then the latter cannot take place and must be
adjourned.
Article 105
IV. Rights and mean* of defence.
The prisoner of war shall be entitled to assistance by one
of his prisoner comrades, to defence by a qualified advocate or
counsel of his own choice, to the calling of witnesses and, if he
deems necessary, to the services of a competent interpreter.
He shall be advised of these rights by the Detaining Power in
due time before the trial.
Failing a choice by the prisoner of war, the Protecting
Power shall find him an advocate or counsel, and shall have
328 WAR TRIAL IN BANGLA DESH
at least one week at its disposal for the purpose. The Detain¬
ing Power shall deliver to the said Power, on request, a list
of persons qualified to present the defence. Failing a choice
of an advocate or counsel by the prisoner of war or the
Protecting Power, the Detaining Power shall appoint a com¬
petent advocate or counsel to conduct the defence.
The advocate or counsel conducting the defence on behalf
of the prisoner of war shall have at his disposal a period
of two weeks at least before the opening of the trial, as well
as the necessary facilities to prepare the defence of the
accused. He may. in particular, freely visit the accused and
interview him in private. He may also confer with any
witnesses for the defence, including prisoners of w:r. He
shall have the benefit of these facilities until the term of
appeal or petition has expired.
Particulars of the charge or charges on which the prisoner
of war is to he arraigned, as well as the documents which
are generally communicated to the accused by virtue of the
laws in force in the armed forces of the Detaining Power,
shall he communicated to the accused prisoner of war in a
language which he understands, and in good time before the
opening of the trial. The same communication in the same
circumstance shall be made to the advocate or counsel
conducting the defence on behalf of the prisoner of war
Tlie representatives of the Protecting Power shall be
entitled to attend the trial of the case, unless, exceptionally,
this is held in camera in the interest of State security. In
such a case the Detaining Power shall advise the Protecting
Power accordingly.
Article 106
V. Appeals.
Every prisoner of war shall have, in the same manner as
the members of the armed forces of the Detaining Power,
the right of appeal or petition from any sentence pronounced
upon him. with a view to the quashing or revising of the sen-
APPENDICES
tence. or the reopening of the trial. He shall be full; infor¬
med of his right to appeal or petition and of the time limit
within which he may do so.
Article 107
VI. Notification of finding* and aentence.
Any judgment and sentence pronounced upcn a prisoner
of war shall be immediately reported to the Protecting Power
in the form of a summary communication, which shall also
indicate whether he has the right of appeal with a view to
the quashing of the sentence or the reopening of the crial.
This communication shall likewise be sent to the prisoners’
representative concerned. It shall also be sent to the accused
prisoner of war in a language he understands, if the sentence
was not pronounced in his presence. The Detaining Power
shall also immediately communicate to the Protecting Power
the decision of the prisoner of war to use or to waive his
right of appeal.
Furthermore, if a prisoner of war is finally convicted or
if a sentence pronounced on a prisoner of war in the first
instance is a death sentence, the Detaining Pcwer shall as
soon as possible address to the Protecting Power a detailed
communication containing.
(1) the precise wording of the finding and sentence:
(2) a summarized report of any preliminary investiga¬
tion and of the trial, emphasizing in particular the elements
of the prosecution and the defence;
(3) notification, where applicable, of the establishment
where the sentence will be served.
The communications provided for in the foregoing sub-
paragraphs shall be sent to the Protecting Power at the
address previously made known to the Detaining Power.
Article 108
Execution of peneltiea’ penal regulation*.
Sentences pronounced on prisoners of war after a con¬
viction has become duly enforceable, shall be served in the
330 WAR TRIAL IN BANGLA OESH
same establishments and under the same conditions as in the
case of members of the armed forces of the Detaining Power.
These conditions shall in all cases conform to the require¬
ments of health and humanity.
A woman prisoner of war on whom such a sentence has
been pronounced shall be confined in separate quarters and
shall be under the supervision of women.
In any case, prisoners of war sentenced to a penalty
depriving them of their liberty shall retain the benefit of the
provisions of Articles 78 and 126 of the present Convention.
Furthermore, they shall be entitled to receive and despatch
correspondence, to receive at least one relief parcel monthly,
to take regular exercise in the open air, to have the medical
care required by their state of health, and the spiritual
assistance they my desire. Penalties to which they may be
subjected shall be in accordance with the provisions of Arti¬
cle 87. third paragraph.
Release and repatriation of prisoners of war at the
close of hostilities
Article lie
Release and repatriation.
Prisoners of war shall be relesed and repatriated without
delay after the cessation of active hostilities.
In the absence of stipulations to the above effect in any
agreement concluded between the Parties ro the conflict with
a view to the cessation of hostilities, or failing any such
agreement, each of the Detaining Powers shall itself establish
and execute without delay a plan of repatriation in con¬
formity with the principle laid down in the foregoing
paragraph.
In either case, the measures adopted shall be brought
to the knowledge of the prisoners of war.
APPENDICES 331
The coses of repatriation of prisoners of war shall in all
cases be equitably apportioned between the Detaining Power
and the Power on which the prisoners depend. This appor¬
tionment shall be carried out on the following basis :
(a) if the two Power are contiguous, the Power on which
the prisoners of war depend shall bear the cost of repatriation
from the frontiers of the Detaining Power,
(b) if the two Powers are not continuous, the Detaining
Power shall bear the costs of transport of prisoners of war
over its own territory as far as its frontier or its port of
embarkation nearest to the territory of the Power on which
the prisoners of war depend. The Parties concerned shall
agree between themselves as to the equitable apportionment
of the remaining cost of the repatriation. The conclusion
of this agreement shall in no circumstances justify and delay
in the repatriatoin of the prisoners of war.
Article 119
Details of procedure.
Repatriation shall be effected in conditions similar to
those laid down in Articles 46 to 48 inclusive of the present
Convention for the transfer of prisoners of war, having
regard to the provisions of Article 118 and to those of the
following paragraphs.
On repatriation, any articles of value impounded from
prisoners of war under Article 18, and any foreign currency
which has not been converted into the currency of the
Detaining Power, shall be restored to them. Articles of value
and foreign currency which for any reason whatever, are
not restored to prisoners of war on repatriation, shall
be despatched to the Information Bureau set up under
Article 122.
Prisoners of war shall be allowed to take with them their
personal effects, and any correspondence and parcels which
have arrived for them. The weight of such baggage may be
WAR TRIAL IN BAKGLA DFSH
limited, if the conditions of repatriation so require, to what
each prisoner can reasonably cany. Each prisoner shall
in all cases be authorised to carry at least twenty-five
kilograms.
The other personal effects of the repatriated prisoner shall
be left in the charge of the Detaining Power which shall have
them forwarded to him as soon as it has concluded an agree¬
ment to this efTect, regulating the conditions of transport
and the payment of the costs involved, with the Power on
which the prisoner depends.
Prisoners of war against whom criminal proceedings for
an indictable ofTence are pending may be detained until the
end of such proceedings, and. if nececessary, until the com¬
pletion of the punishment. The same shall apply to prisoners
of war already convicted for an indictable offence-
Parties to the conflict shall communicate to each other
the names of any prisoners of war who are detained until
the end of the proceedings or until punishment has been
completed.
By agreement between the Parties to the conflict, com¬
missions shall be established for the purpose of searching for
dispersed prisoners of war and of assuring their repacriatio u
with the least possible delay.
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Woetzel, Robert K.. The Nuremberg Trials in International
Law (Stevens and Sons Ltd., London, 1962; Frederick A.
Praeger Inc. New York,).
342 WAR TRIAL IN BANGLA DESK
Wright, Quincy. “War Criminals”. American Journal of
International Law. 39 (April 1945), pp. 257-285.
—. “The Crime of ‘War Mongering”, American Journal of
International Law. 40 (April 1946), pp. 396-406.
—, “Due Process and International Law”, American Journal
of International Law. 40 (April, 1946), pp. 128-136.
—. “The Law of the Nuremberg Trial”, American Journal
of International Law. 41 (January. 1947), pp. 38-72.
“Legal Positivism and the Nuremberg Judgment”.
American Journal of International Law. 42 (April. 1948).
pp. 405-414.
—, International Law and Guilt by Association”. American
Journal of International Law. 43 (October. 1949)
pp. 38-32.
—. “Proposal for International Criminal Court”, American
Journal of International Law, 46 (January, 1952), pp.
60-72.
INDEX
Act of State, doctrine of. 17.
95. plea of. 142-145
Adams. Quincy. 30
Admiral Soemu Toyoda, 83
admission of evidence, pro¬
blem of. Ill
Agha Sbahi, views on the
trial. 109
aggressive war. concept of,
19. 64. 80
Akhtar, Parveen. 126
A1 Badr. 2
Ali.Wazid.125
American Bar Association. 32
American missionaries, 30
Anschluss. 20
Araki. 61
Armenia, 21
Attack on Dacca. 129. 131-
132
Australia. 13
Awami League Party, 1, 106,
113
Bangla Desh Collaborators
(Special Tribunal) Order
(1972). 168
Belgium. 11, 13
helium justum, 65
Benton. Wilboum E., 56n
Bergen Belsen, 97
Berlin. 39. 96
Berlin Head Office of Security
Police (S.D.), 96
Bernard ‘(Justice). 65. 70. 79
Bhutto, views on the trial.
150
Biswas, R.K., 168
Bormann, 40
Borneo, 86
Bosch. William J.. 57n
Brahamanbaria, 2
Brezhnev. Leond, 109
Brickerism, 32
British Manual of Military
Law, 146
British Royal Warrant (1945)
160
Buriganga River. 130
Chand Joshi. 117
Charter of the International
Military Tribunal. 16. 19.
2L 23. 147. 211-221
China (Nationalist) 13
Choudhary, Muzaffar Ahmed.
Chowdhary, Kabir, 109
Chungking, 14
Churchill. Winston, 11
Concentration Camp cases, 51
344
Congress of Vienna, 37
Commission on Responsibi¬
lities. 37, 146
Committee on the codifica¬
tion and progressive deve¬
lopment of international law,
23
Committee on Peace and Law
through the United Nations,
33
Control Council Law No. 10,
49. 351, 160. 222-228
conventional war crimes,
49, 60
Crete, 21
Crimes against Humanity. 15,
25,60
Crimes against Peace. 15,
25. 60
Criminal Chamber, 34
Cuba. 31
Czarist Russia, 30
Czechoslovokia. 11, 13
Dacca. 112. 113. 118, 122-123.
129
Dacca University. 131-133
Dachau Concentration Camp
Trial. 167
Darwin. 86
Deb. G.C., 1
Declaration of Nazi Ger¬
many’s atrocities, 11
delicti juris gentium, the con-
De-Nazification laws, 44
Denmark. 13
WAR TRIAL IN BAKGLA DESH
Dohihara, 61
Doenitz, 46
Draft Code of Offenses against
the Peace and Security of
Mankind. 18. 26. 313-315
Dyke, Vernon Van, 33n
East Bengal Regiment. 119,
133
Economic and Social Coun¬
cil. 28
Eichmann. Adolf, 89
Eichmann’s appeal, 99-103
Eichmann case, judgment of,
232-248: appraisal of. 103-104
Eichmann trial, 89-103
Enforcement Committee (San
Francisco), 19
eyewitness accounts and testi¬
monies. of Pakistani Army
atrocities, 111-137
ex post facto law. 7, 56, 64,
66. 67, 92
Farben case. 152
Far Eastern Commission. 14.
58. 59. 83-85
Filipinos, 86
“Final Solution,” 89, 98
Firman Ali, 110
Flick case. 151
foreign nationals in Dacca,
harassment of, 135-137
France. 11, 13
Frick. 46
Fritzche. 40
Funk. 46
INDEX
General Assembly, of the
United Nations. 3. 4. 22. 25.
54. 144
General Headquarters (SCAP),
82-83
General MacArtbur, 81. 85
Geneva Convention (1929), 21
Geneva Convention III (1949),
158
Geneva Convention on Pri¬
soners of War. 139,169,316-
332
Genghis Khan, 115
Genocide Convention, 3. 29.
249-254 ; approval of. 30 ;
ratification of. 31
Genocide, crime of, 27-33
German Code of Military
Justice (1872). 37
Gestapo. 97
Goering. 45
Greece. 11. 13
Green. L.C.. Ill
Greenspan. Morris, 151n
Grimm. Georg, 56n
Grotius. Hugo. 141, 173
habeas corpus, writ of 91
Hadamar Murder Factory
case. 50
Hague Convention II (1899),
175-210:
Hague Convention III. 71 ;
Hague Convention IV (1907).
11. 170, 175-210
Haque, Piaml. 124
Hashimoto. 61
345
Hastings. Father John, 127
Hata. 61
Hess, 45
High Command case, 153
Hiranuma. 61
Hirota, 61
Hiroshima, 1
Hitler. 3, 10. 27. 41. 45. 172
Hongkong. 86
Horwitz, Solis. 62
Hoshino, 61
Human Rights Commission,
.discussion on the prosecution
and punishment of war crimi¬
nals. 171-172
Hungary, 43
Indian Ocean. 73
Indian Law Institute, 111
India’s stand on the trial of
prisoners of war, 108
Indira Gandhi, views on the
trial. 108-109
Indo-Cbina. 86
Inter-American Conference
(1945). 12
Inter-Parliamentary Union. 34
International Association for
Penal Law, 34
International Court of Justice,
advisory opinion on reserva¬
tions to the Genocide Con¬
vention. 94, 171, 255-310
International Criminal Court,
projects for, 33-35
international criminal law,
nature of. 5-8
34f>
International Law Associa-
tion. 34
International Law Commis¬
sion. 18. 23. 148
International Military Tribu¬
nal. see Nuremberg Tribunal
International Military Tribu¬
nal for the Far East. 591
Islam, Mohammad Shohidul.
119
Israel Secret Service, 89
Itagaki. 61
Jallianwala Bagh. 172
Jaranilla (Justice), 67, 69. 70
Java, 86
Jescheck. 22
Jodi. 45
Judge Advocate for War
Crimes, 49
Kaiser William II. 38
Karim. Ali, 123
Kaya. 61
Keitel. 45
Kellog—Briand Pact, see Pact
of Paris
Kennedy. Senator Edward. 109
Khulna. 2
Kido. 61
Koiso. 61
Krvpp case 153
Krupp. Gustav, 40
Kuhn 34n
Kushtia. 168
Kyushu University case, 86
WAR TRIAL IN BANGLA DESH
Lake Khassan, 80
Lemkin, Raphael, 171
legal positivism, doctrine of,
57
Leipzig trials, 7. 37-39
lex loci, 16
London Agreement (1945),
65
London Charter, 41. 43
Luxembourg. 11. 13
Macro Polo Bridge Incident
73
Madagascar Plan. 97
Madrid International Con¬
gress (1933), 171
Malmedy Massacre cast, 50
Manila. 86
Mascarenhas. Anthony. 113
Matsui, 61
Matsunka, 61
Military Court of Appeal
150
military junta, 1. 105
military necessity. 21
Military Tribunals. 49
Minami, 80
Mirpur, 112
Moscow Declaration (1943),
11. 15
Mukti Bahini. 2. 137. 168-169
Muto, 61
Nagano, 61
Nagasaki, 1
Nanking. 14. 86
INDEX
347
Napoleon. 37
Nazi and Nasi Collaborators
(Punishment) Law, 91-92
Nazi Party, 44
necessity, the defense of, 151-
156
Nero, 27
Netherlands, 11. 13
New Guinea. 86
New 2>aland. 13
Norway, 1L 13
nullum crimen nulla poena
sine lege maxim of; 7, 20. 66
Nuremberg Charter, 21, 26
Nuremberg judgment. 22;
appraisal of, 55-58
Nuremberg principles, codi-
fcation of, 23-27
Nuremberg Trial, 39-48
Nuremberg Military Tribunal
2.16, 19,20. 23. 26-27, 39.
42-45. 48-49
Office of Chief of Council for
War Crimes (OCCWC), 53
Oka. 61
Okawa, 61
Oppenheim. L. 8n. 18
Oshima, 61
Pacific Ocean. 73
Pacific Sub-Commission. 14
Pacific War. 64. 72
Pact of Paris (1928), 64-65
Pal. Radha Binod. 66. 68. 69.
70. 77-78
Palestine, 95
Pakistan collaborators. 111
Papadatos. Peter. 17n
par in parem non habet impe-
rium. 142
Pearl Harbor. 71
Pella. 6n. 34
Piracy, 5
Potsdam Declaration, 62-64,
85
procedure for trial. 158-168
Proclamation of Indepen¬
dence (Bangla Desh). 140
Poland. 11,13
Raeder, 45
Rangoon. 86
Rashid. A. 1
Razakar groups. 2. 119
Red Cross Convention. 50
Rehman. Sheikh Mujibur.
appeal to the United Nations
and views on the crial for
the crime of genocide, 110
Ribbentrop. 45
Roling (Justice), 65. 76, 81
Roosevelt, Franklin. D.. 11
Rosenberg. 45
RSHA, 97
Rumania, 43
Rusk. Dean, 31
Russelheim case. 50
Russian intervention against
the Balkan States. 21
Sadarghat, 1
Saigon, 86
Sato. 61
348
WAR TRIAL IN BANGLA DESH
Sauckel. 46
Schacht. 40
Schanberg, Sydney H., 113
Schwarzenberger, Georg, 6n
Schwelb, 21n
Sen. Samar, 1C8
Senator Bricker, on ratifica¬
tion of Genocide Conven¬
tion. 32-33
Seyss-Inquart, 46-47
Shakaripatti, 129
Shanghai. 86
Sharif. A.. 1
Shigemitsu. 80
Shimada, 61
Shiratori 61
Simon, Lord. 12
Singapore, 86
Sir Peter of Hagenbach. trial
of. 36
Speer. 46
Spiropolous. Jean. 24
St. Helena, island of. 37
St. James’s Decalaration (1942).
11
Stalin. Joseph. 11
Stevensen. Senator Adlai. 2
Storm Troopers (SA). 44
Streicher, Julius, 47
Subsequent Proceedings, Nu¬
remberg. 48. 49-55
Superior Orders case. 51
superior orders, the problem
of. 145-551
Supreme Commander for the
the Allied Power in Japan
(SCAP). 59
Suzuki. 61
Swadhin Bangla Betar Kendra.
105
Tamura case, 84
Taylor. Brigadier General. 40
territoriality, principle of, 16
Thirty Years’ War, 36
Tikka Khan. 3. 115, 133. 138
Togo, 61
Tojo. 61
Tokyo Charter, 64 ; compari¬
son with Nuremberg Charter;
87-88
Tokyo judgment, appraisal of.
87-83
Tokyo trial. 58-87
Tokyo Tribunal, 61. 63-69.
71-75
Treaty of Commerce and
Navigation with Japan (1939),
74
Truman, Henry, 31
Turkish atrocities (1827). 21
United Kingdom, 13. 14
United Nations. Adhoc Com¬
mittee on genocide. 28 ; and
GenocideConvention. 28-30
United Nations War Crimes
Commission. 12-14. 22
United States of America. 13,
14,30
United States Military Courts
of Commission in Austria.
55
INDEX
Universal Declaration on
Human Rights (1948). 27
universal principle of juris¬
diction, 16
Umezu. 61
Versailles, treaty of. 38
Vienna Centre for emigration
of Austrian Jews, 96
Vietnam. 1
von Neurath, 46
von Papen, 40
Waldheim. Kurt. 108
war crimes. 8-10,15. 25
349
war criminals. of Nad
many. 45-48; of Far East,
60-61,80-87
Wilson. Harold, 109
Woetzel, Robert K., 17n
World Jurists Association,
109
World Peace Council. 109
Wright, Quincy. 5n
Yahya Khan. 3. 106, 111. 116.
136-138
Yamashita cose. 72.157-158
Yokohama, 86
Yugoslavia. 11. 13