15 Jun Religion and Genocide: Perspectives from the International Crimes Tribunals-Bangladesh
[Barrister Tapas Baul is a Prosecutor at the International Crimes Tribunal-Bangladesh. He is an Adjunct Faculty of International Criminal Law, Clinical Legal Education and Penal Laws in Jahangirnagar University and Bangladesh Open University. Mr Aakarsh Banyal is a University Merit Scholar and Shantanu Tomar Scholar at Symbiosis Law School, Pune, India.]
The International Crimes Tribunals of Bangladesh is a domestic tribunal established under a domestic law, i.e., International Crimes (Tribunal) Act, 1973 (hereinafter, ‘the Act’). The Act was enacted to try perpetrators who had committed international crimes within the territory of Bangladesh. Since 2009, the tribunals are trying the perpetrators (the then Pakistan Army and their local auxiliary forces) who were responsible for committing international crimes, for example, crimes against humanity, genocide, war crimes etc. during the war of independence of 1971. The Act was inspired mostly by the Charter of the International Military Tribunal, the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter, ‘Genocide Convention’) and the Geneva Conventions.
In this regard, this article will focus on the crime of genocide against religious minorities defined under Section 3(2)(c) of the Act. It is important to note at the outset that the formation of the definition of genocide mostly follows the definition of Genocide Convention, except in two places. The first one is it included ‘political’ group as one of the protected groups and the second one is the inclusion of the words ‘such as’ instead of the words ‘as such’. The second one is elaborated in this article; however, ‘political’ group is not the focus of this article since the Tribunal has not held an individual guilty for committing genocide upon a political group. The tribunals found that genocide was committed upon ‘national’ and ‘religious’ groups, with the latter group being discussed in majority of the cases.
Historically, four religious groups were predominant in the Indian Sub-Continent, i.e., Hindu, Muslim, Buddhist and Christians, along with Sikhs, Jains, Jews etc. After 1947, when Pakistan and India became independent countries, Hindus became minorities in Pakistan (30%) and most of them were living in East Pakistan, which became Bangladesh in 1971 after the war of independence. In 1971, 21% Hindus were living in Bangladesh. During the war of independence, Hindu religious people were specifically targeted because of their religious identity.
In the ensuing segments of this article, the authors have critically analyzed the tribunals’ decisions on convicting perpetrators for committing genocide on the Hindu populace. In doing so, the article seeks to redress the dearth of literature discussing emergent jurisprudence from the Tribunal’s decisions. Furthermore, the authors have tried to establish that the tribunals, even though domestic in character, have followed the principles established by the ad hoc tribunals and the ICC.
ICT-BD’s Treatment of the Crime of Genocide Against Religious Minorities
According to Section 3(c) of the Act, genocide is defined as ‘any of the…acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as.’ This chapeau is followed by a list of acts including killing, causing bodily harm, preventing births, etc. The Tribunal’s treatment of this chapeau provision vis-à-vis religious minorities shall be analysed seriatim in this segment.
‘Committed with Intent to Destroy’
The crime of genocide has a specific intent requirement whereby the accused shall bear the intent to destroy the target group, in whole or in part. Otherwise known as the dolus specialis, this specific intent under the Rome Statute is assessed above the general intent requirement provided under Article 30, Rome Statute.
In the germinal genocide decision of Prosecutor v. Akayesu (¶518), the Rwandan Tribunal characterised this specific intent as a mental linkage ‘between the physical result and the mental state of the perpetrator.’ Notably, the use of the word ‘result’ means that such intent is purpose driven. The ICTY’s decisions further emphasise the irrelevance of a mere knowledge requirement (¶ 3.1). In other words, even if a perpetrator has knowledge that its actions will bring about physical destruction of a specific group, the offence of genocide would not be proved if it cannot be established that, over and above, the perpetrator brought about that destruction with the intent to destroy that group.
The International Crimes Tribunal-Bangladesh in Mahbabur Rahman (¶287-291) remarked that genocidal intent, an intangible mental element, is inferred and not ‘a matter to be proved by direct evidence.’ Instead, it is determined from the facts and circumstances of the case. In this case, the Tribunal observed that the killing of 33 Hindu civilians of Mirzapur village, even if it did not result in the complete destruction of the Hindu population of the region, was substantial enough to demonstrate the accused’s genocidal intent. This is because the 33 civilians were specifically captured and later killed by the perpetrators based on their religious identity coupled with the torching of several houses to spread fear among the entire Hindu community and convey the perpetrators’ genocidal intentions.
In addition, the case of Moulana Abdul Kalam Azad (¶164) provides further insight into the Tribunal’s approach towards the concept of genocidal intent. Firstly, by relying on Rwandan tribunal’s decisions, it held that genocidal policy, albeit not a legal ingredient, is an important factor in inferring genocidal intent. Secondly, it laid down four factors to infer specific intent, which are, the scale and pattern of atrocities, the fact of systematically targeting the individuals belonging to a group, political dogma of the perpetrators of the crime and extent and repetition of the destructive and discriminatory acts. Applying the same to the facts of the case, the Tribunal accordingly held that the accused’s conduct reflected genocidal intent owing to the destruction of Hindu civilians coupled with torching and looting activities accompanying the said killings.
‘In Whole or in Part’
This phrase, according to Prof. Schabas (pg. 133), serves a twin purpose. First, on the objective level, it seeks to remove singular events from the remit of the crime of genocide. Second, on the subjective level, it means that the perpetrator need not intend the destruction of the entire targeted group. The ICTY, in its Krstić decision (¶12), espoused a substantiality standard whereby, in addition to the numeric size of the group, “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial.”
Echoing on the same rationale, the ICT-BD in Azharul Islam (¶185) stated that ‘targeting the group of Hindu community residing at the crime site of Carmichael College campus itself is rather emblematic of the overall Hindu community of the country. Thus, targeting part of the community qualifies as substantial to infer the ‘genocidal intent.’ Similarly, the Tribunal in Liakat Ali (¶443) stated that killing 26 civilians within a small geographical area was sufficient to satisfy the ‘in part’ threshold.
As opposed to the ad hoc tribunals’ decisions, the accused individuals’ conduct during the Liberation Struggle was restricted (¶456) to limited geographical areas within Bangladesh. Often, the accused traveled from one village to another, killing any Hindu civilian that came their way. It was crucial to analyse the cases from the larger lens of a policy that the Pakistan military and their local collaborators had set out in these cases. These policy statements, both verbal and written, were instrumental (¶198) in connecting all the killings. Hence, the specific intent to destroy a group in part was satisfied (¶188) since the perpetrators were aware that their contribution in terms of ravaging small Hindu communities was part of a larger design sufficient to “annihilate the [complete] group” as a distinct entity.”
The ICTR’s attempt to define a religious group came in Akayesu (¶515) as “one whose members share the same religion, denomination or mode of worship.” The threat that Akayesu’s seemingly objective approach posed was highlighted by the ICTY’s in Jelisić (¶70), following which it sought to adopt a subjective approach based on the perpetrator’s perception of the victim’s identity. This shift was even embraced by the latter decisions in Rutanganda (¶55) and Kayishema et al. (¶98).
The Pakistan military junta was specifically hostile against the Hindu community. However, defining Hinduism based on Akayesu’s objective approach is no easy task since Hinduism does not (¶572) prescribe a single set of beliefs and has no single founder, scripture, or governing body. Notwithstanding, the Court derived (¶574) a unifying set of beliefs by referring to Indian judicial pronouncements and other sources to state that accepting Supreme Reality, the authority of the Vedas, and moksha (liberation) are certain common unifying values that broadly underpin the Hindu religion.
Preliminarily, in ATM Azharul (¶194), although the Tribunal did state that identification of the victim’s group is made on a case-by-case basis, it did affirm the fact that it is the perpetrator’s perception that shall be given due consideration while making a determination. Thus, the ICT-BD subscribed to both subjective and objective identification approaches.
While doing so for the Hindu community in the given case, it stated –
“Evidence shows […] victims of the killing were perceived by the accused […] belonging to the group i.e ‘Hindu religion or community’ targeted for destruction. Hindu community is a group sharing common beliefs. It is clear that the victims were targeted because they belonged to this group.” (¶194)
This observation holds especially true in cases where the accused is a local collaborator whose involvement was directly tied to identifying Hindu villages, houses, etc., as an aide to the Pakistani military forces (see, for instance, Moulana Kalam Azad).
Although most of the ICT-BD’s caseload in relation to genocide deals with religious groups, the ICT-BD has not meted out a decision where the defense challenged the group identity of the victim. This is primarily because, on a practical assessment, the defense majorly contends the wrongful identification of the accused as the real perpetrator, or the absence of the accused from the crime scene in opposition to the witness testimonies (see, for instance, Ali Mujahid). Furthermore, the defense perhaps does not raise this objection owing to the self-evidentiary nature of these religion-driven genocidal acts.
A major gulf between the Genocide Convention’s definition and the Act’s definition of genocide is that the former uses the phrase ‘as such’ and the latter uses the phrase ‘such as’ before enumerating the culpable acts. The initial use of the phrase ‘as such’ during the drafting of the Genocide Convention was to proscribe (¶53) the requirement to prove motive, in addition to intent for the crime of genocide.
However, the author has argued elsewhere that the phrase ‘such as’ serves another purpose at ICT-Bangladesh. This is since ‘such as’ rather explicitly provides for a non-exhaustive, inclusive account of proscribed acts, thereby affording the Tribunal more discretion to include other incidents under the crime of genocide. This evolutive approach can prove helpful for the Tribunal to try wide-scale atrocities that would have otherwise escaped the clutches of justice. Although the Tribunal has not affirmed this approach, the prosecution attempted to argue in Prosecutor v. Delowar Sayadee (¶43) that forceful conversion of Hindus to Muslims qualifies as a means to commit genocide.
International Crimes Tribunal-Bangladesh’s decisions have time and again incorporated ad hoc tribunals’ rationale after affording care to domestic sensibilities, thereby signifying its hybrid approach to international criminal justice. This is because the context governing the Liberation Struggle was in many ways distinctive from the Rwandan and Srebrenican genocides since Bangladesh witnessed acts of widespread and systematic violence by different perpetrators in limited geographical regions. The ICT-BD, thus, acts as a remarkable, albeit less discussed tribunal, that furthers the tenets of international criminal justice while balancing them with the domestic legal milieu.
On a general note, domestic tribunals like the ICT-BD provide yet another, and arguably a more effective way, to prosecute individuals conducting mass atrocities. This is because domestic tribunals carry the potential to better capture the ground realities of a particular case, thereby making states more open towards their decisions. Thus, it becomes important to direct the international criminal legal academy’s attention towards domestic voices like the ICT-BD that silently yet steadily contribute to international criminal justice in the current day and age.