Must any state that holds and controls prisoners either prosecute those accused of having committed serious violations of international law or extradite them to a state that will prosecute? Finally, would similar breaches of international law by India or Indian troops obviate any jurisdictional competence or duties of India or Bangladesh?
The questions seemed unusual, at least in view of the past practices of international tribunals of the United States in prosecutions of its nationals. Specific criminal applications of relevant international norms had been relatively sparse.' There were problems with the applicability of international norms to Bangladesh, especially during the state's transition through the legally relevant stages of insurgency, belligerency, and state-to-state warfare. It would also be necessary to decide whether violations of human rights were prosecutable by the state whose nationals were the victims of substantial and intentional deprivations. Do general human rights protections apply in an armed conflict? What interrelationships exist between human rights, laws of armed conflict, and prohibitions of genocide? The Bangladesh trials would surely be significant for their precedential value, the analyses of the jurisdictional issues, and the final determinations on the competence to prosecute and to sanction. They would perhaps be as significant as Nuremberg. Equally interesting would be the application of international due process guarantees to safeguard the human rights of the accused before, during, and after the trials. No previous court had faced such issues squarely, and few national or international courts had specifically incorporated human rights into due process guarantees.
Jordan J. Paust and Albert P. Blaustein,
War Crimes Jurisdiction and Due Process: The Bangladesh Experience,
11 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol11/iss1/1