JOURNAL PAPER

Tapos Kumar Das, Calibrating the Human Rights Committee for Environmental Justice and Sustainable Development, ELCOP Journal on Human Rights, Vol. 1, pp.127-141, 2023. doi: https://doi.org/10.59871//TGYA5526

In this paper, the term sustainable development is used to indicate environmentfriendly development. Here a comparative case study is made between Bangladesh and Paraguay to comprehend the difference an international forum can offer in mitigating anthropocentric environmental degradation arising from unsustainable development. From Bangladesh’s perspective, this paper finds that individual victims have limited access to justice to challenge environmental harm or risk. Whereas in the case of Paraguay, victims of unsustainable development after exhaustion of national forum can avail remedy from the Human Rights Committee (HRC) constituted under the International Covenant on Civil and Political Rights (ICCPR). The “views” of the HRC in the Portillo Cáceres and others v. Paraguay1 communication recognizing “the State’s obligation to prevent environmental degradation to ensure the right to life in a healthy environment” – has unfolded a new avenue for individual access to environmental justice through human rights mechanism. The individual communication, State-to-State complaint, and inquiry - provided by the HRC might be instrumental to challenge the degradation of the anthropocentric environment impairing the human rights guaranteed by the ICCPR. This paper argues that instead of creating new international environmental rights or courts, the use of the HRC might offer accessible justice in terms of the cost and complexity when national remedies are inadequate or exhausted against the unsustainable development risking human rights within a State party.

Tapos Kumar Das, Reprisal Against the Use of Chemical Weapons: Examining Limits of the IHL in the Syrian Context, Jahangirnagar University Journal of Law, Vol. X, pp.57-70, 2022.

There has been repeated use of chemical weapons (CWs) in the Syrian civil war in violation of the international humanitarian law (IHL). International response to this breach came in the forms of negotiation, investigation, and armed reprisal. In light of the treaty and customary IHL, this paper examines the (il)legality of the use of CWs, individual and state responsibility for the use of CWs, and the scope and limitation of the armed reprisal against the CWs attack. Finally, it focuses on the implementation measures, both preventive and coercive, to strengthen IHL to promote deterrence of the use of CWs in Syria and elsewhere.

Tapos Kumar Das, The Positive Complementarity: An Alternative Approach for the ICC's Engagement, Jahangirnagar University Journal of Law, VIII:2020, pp.79-93, 2020.

Restricted membership limits the full exercise of criminal jurisdiction by the ICC. Moreover, the accusation of African bias and selectivity in examination and investigation have substantially impaired its acceptance even among the state parties. The past engagement of the ICC represents the inclination for The Hague-based trial rather than encouraging prosecution at the national level; this neglect of the complementarity principle disincentivizes universalization of the ICC. Similarly, the OTP’s complete disregard for peace and reconciliation jeopardizes achieving sustainable peace in a conflict situation and generates a considerable challenge to its authority. Hence, this paper proposes that the “complementarity” mandate, if employed “positively” i.e., to enhance collaboration with the states to manifest national/regional prosecution of serious crimes - might help in sidestepping accusations of politicized justice, and pushback and backlash against the ICC. Moreover, the ICC’s extension of territorial jurisdiction over the Myanmar/Bangladesh situation has opened a new front where the positive complementarity might be instrumental in gaining cooperation from and confidence of the non-party states. This paper finds that more attention on the positive complementarity might help universalization of the ICC and achieving both peace and justice through multilayered accountability.  

Tapos Kumar Das, Reparatory Justice Practice in ICC and ICT-BD: Transitional Justice in Bangladesh in Context, ELCOP Year Book of Human Rights : Human Rights and Women, pp.67-80, 2017.

In transitional justice process, usually sentence is awarded against the individual or collective responsibility of the perpetrator. Justice so dispensed by the international criminal courts and tribunals are retributive in nature where victim’s right to reparation remains unaddressed. In the international realm, even though Rome Statute of the ICC recognized and provided for victim’s reparation, it remained unexplored until 2017, when the ICC in the Prosecutor v Germain Katanga  ordered pecuniary compensation for the victims of war crimes. Moreover, in Germain Katanga and the Prosecutor v Ahmad Al Faqi Al Mahdi, the ICC has introduced a trend of providing reparation at the expense of the perpetrator.

In 2010, Bangladesh started transitional justice process for international crimes committed during the 1971 liberation war. By June 2017, International Crimes Tribunal of Bangladesh (ICT-BD) disposed of 28 cases and in two of those, the prosecution claimed reparation unsuccessfully. Without providing reparatory justice to the victims, the ICT-BD has shifted the burden of reparation to the government. All the human rights instruments to which Bangladesh is a party recognize the victim’s right to effective remedy and reparation against violation of rights. Moreover, section 46 (3) of the Rules of Procedure 2012 applicable to the ICT-BD authorizes the Tribunal to impose fine or pass reparation order proportionate to the gravity of crime. So, this article argues that the ICT-BD being imbibed by the international judicial trend, and national and international legislation may offer reparatory justice to the war victims.

Tapos Kumar Das, Rethinking Reservation in Judicial Appointment in Bangladesh, Jahangirnagar University Journal of Law, IV, 2016.

Reservation is a widely followed criterion for appointment in the subordinate judiciary of Bangladesh. The constitution of Bangladesh permits protective measure like reservation in public office for backward section of the citizens so as to ensure their adequate representation. However, neither the constitution nor the judicial appointment rules define “backward section” nor suggest any guideline to determine who is or are to be included within the ambit of the backward section. In such backdrop, there is every possibility that the “creamy class” of the backward section would oust the “more backward” section, and would unjustly exhaust the benefit of such reservation by frustrating the object of the legislation. In addition, discontent is there as to the bulk of reservation. In the given scenario, the present articulation intends to explore the facts constituting backwardness and qualifying a class of people to be tagged as backward class. It also suggests an objective consideration in determining the extent of reservation. In present days, a discourse is generating as to the legitimacy of the protective privilege availed by the creamy layer of the backward class. The present study encounters this discourse objectively and suggests limitation on the availability of the protective privilege. The study evaluates the potential of the present reservation scheme in accomplishing the legislative intention; and finally, urges to rethink the scheme in an impartial and objective manner to make it consistent with the common constitutional commitment for equality and non-discrimination.

Tapos Kumar Das, Bringing Justice Home, Jahangirnagar University Journal of Law, Vol-III, 2015.

In this article the term ‘justice’ is used to denote the constitutional remedy of enforcement of fundamental rights and judicial review of administrative action. Articles 44 and 102 of the Constitution of Bangladesh permit the High Court Division to dispense justice. Access to justice is inextricably linked with the legal empowerment, rule of law, poverty reduction and development. A comparative study among four South Asian countries reveals that a decentralised justice system has positive influence upon the governance and development of a state. Inaccessibility of court impairs access to justice. To maximise access to justice in Bangladesh this article underscores the need for creation of alternative forum by way of delegation of power or decentralisation of sessions of the High Court Division as expressed in articles 44(2) and 100 of the Constitution.

Tapos Kumar Das, Minority Exodus in Bangladesh: Trends and Causes, Bangladesh Journal of Dalit and Minority, 2016.

Minority exodus is inextricably linked with religion, socio-political culture and hegemony. Since partition of India every political transition of the subcontinent is marked by communal atrocities and mass exodus of minorities. In Bangladesh, historically minorities are considered to be the stronghold of Awami League. To weaken awami politics, the anti-awami regimes always resort to systematic oppression and communal violence to flush the minorities out of the country. Minorities are economically feeble, politically under-represented and disempowered. Moreover, anti-minority legislations and state practices, non-recognition of aboriginal rights, communalization of politics and social relations compelling the minority exodus. The gradual decline in the percentage of minorities as demonstrated in different population census substantiates this trend of exodus. To restrain this trend, minorities should be accorded equal rights and dignity, they need to be politically represented and empowered. For this, qualitative changes in the politics and governance, and manifestation of the constitutional guarantee of the equality and social justice are imperative.

Tapos Kumar Das, Do Judges Make Law? A Scrutiny in the Context of the Decisions of the Supreme Court of Bangladesh, Rajshahi University Law Journal [ISSN: 1991-8976], 08, 2013.

Initially this article considers how the decision of the Supreme Court of Bangladesh becomes law. Then it analyses the doctrinal critique and statutory recognition of the judge made law. The author finds that the Supreme Court of Bangladesh assumes the law making role vide (i) interpretation, (ii) directions and, (iii) judicial review of legislation. Keeping word limit in mind, this article scrutinises few landmark decisions of the Supreme Court to determine the nature, extent and limits of the judge made law in Bangladesh. The author suggests that the trend of judicial law making must continue to fill up the ‘legislative vacuum’ and to limit ‘legislative transgression’ without imparting indiscriminate alteration in the settled legal regime.

Tapos Kumar Das, National Commission for Minorities- Towards a Protection Regime, ELCOP Year Book of Human Rights: Human Rights and Religion, 2014.

Minority Rights,Post-election violance, Minority Exodus, Minority Commission 

Tapos Kumar Das, Right to Life vs. Right to Encounter: Limitations on the Use of Lethal Force, ELCOP Year Book of Human Rights : Human Rights and Critically Disadvantaged People, 2012.

In Bangladesh the issue of encounter killing by the law enforcers (RAB1-Police) has received a mixed appreciation. In one side, apparent failure of the criminal administration of justice to bring the hardcore criminals to justice stimulates popular support for the raft and drastic measure like extra-judicial killing in the name of encounter. Contrarily, the followers of the rule of law realizing the far reaching risk of lawlessness oppose the practice of deprivation of life in absence of the due process of law. In the backdrop of huge outcry against the arbitrary deprivation of life by the law enforcers, this articulation has ventured to come across the legal basis for the actions and reasoning lead by their spokesman soon after each and every incident. A comparison is made between two contrasting claims for right to life: one - by the common people as guaranteed by the national and international laws; the other - by the law enforcers in the form of the self-defence. On review of the primary and secondary literatures the author accentuates that right to life is an inalienable right applicable to all; self-defence is an exception of the right to life but the use of lethal force in self-defence must be necessary, reasonable and proportionate.

Tapos Kumar Das, Hartal, Mobile Court and Rights of the Accused in Criminal Trial: A Scrutiny of the Mobile Court Act, 2009, Rajshahi University Law Journal [ISSN: 1991-8976], 2010.

Due Process of Law, Mobile Court, Rights of the Accused, Constitutional Rights 

Tapos Kumar Das, Freedom of Expression versus Cybercrime: A Legal Scrutiny of the Information and Communication Technology Act 2006, ELCOP Year Book of Human Rights 2015: Human Rights and Terrorism, 2015.

Freedom of Expression, Cyber Crime, Online Communication  

Tapos Kumar Das, Displacement of Trust – Criminal Justice or Chaos?, ELCOP Year Book of Human Rights 2016: Human Rights and Displacement, 2016.

Criminal Administration of Justice, Public Confidence, Corruption

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BOOK

Tapos Kumar Das, The Obligation to Investigate and Prosecute Past Atrocity: Examining States’ Response to the 1971 Bangladesh Genocide, July 2020.

State’s obligations in armed conflict are regulated by both national and international law. Yet, in case of conflict, the obligation under international law shall have primacy over that of national law. A state cannot derogate its obligation under the IHL and IHRL for the minimum guarantee of human rights and humanitarian protection during the armed conflict irrespective of its nature as an IAC, NIAC, or internal disturbance. International law requires the states to investigate and prosecute violations of CIL, IHRL, and IHL which constitute international crimes, in particular genocide, CAH, war crimes, or other gross violations of human rights, and other serious violations of IHL. Furthermore, the characterization of the crime of genocide as jus cogens gives rise to the obligation erga omnes to investigate and prosecute the crimes and not to allow any impunity to the perpetrators.  Victims’ right to truth, justice, and remedy also underpin this obligation. Omission to investigate and prosecute past atrocities gives rise to a separate breach of international obligation and constitutes a continuing internationally wrongful act.   

The factual study undertaken in the thesis reveals that during the 1971-armed conflict, Pakistan’s use of force against the Bengali people breached substantive obligations under IHRL, IHL, and CIL and gave rise to the procedural obligation to investigate and prosecute the crimes and provide the victims a remedy. Yet, Pakistan only undertook a judicial inquiry and no investigation or legal proceeding ensued. On the contrary, Bangladesh has been prosecuting Bengali perpetrators pursuant to the obligation erga omnes. However, its attempt to bring Pakistani perpetrators to justice had failed due to Pakistan’s opposition, international pressure, and geopolitics.        

The obligation for atrocious crimes particularly CAH, war crimes, and genocide are not barred by limitation. So, this study proposes that as per the applicable IHRL, IHL, and CIL Pakistan is required to investigate and prosecute the 1971-atrocities and provide a remedy to the victims. The omission of this obligation constitutes continuing internationally wrongful act which Pakistan must cease. Also, Pakistan’s breach of the jus cogens norm created an obligation erga omnes allowing any state to exercise universal jurisdiction for accountability of the perpetrators.

This research finds that prosecution of the 1971-atrocities is possible under national or international judicial forum constituted for this purpose. Like Bangladesh, Pakistan may constitute a domestic tribunal, or both states may agree to establish an international tribunal. An international tribunal constituted under the UN mandate would ensure both fair justice and criminal accountability. Yet, due to long delay and geopolitics, establishing an international tribunal might be difficult and non-criminal accountability like “recognition” and “reparation” might be an alternative justice. An International Fact-Finding Commission constituted either under the Geneva Conventions or UN resolution might be engaged in determining liability for the 1971-atrocities. The unimpeachable nature of the Commission’s determination can mitigate tension between Bangladesh and Pakistan regarding the denial of the 1971-atrocities. Moreover, states’ recognition of the Commission’s determination might discharge their obligation erga omnes concerning the 1971 Bangladesh genocide, and offer minimum justice to the victims.        

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OTHER

Tapos Kumar Das, Prosecuting Pakistani Perpetrators in absentia, 2021.

The article explores justification for the accountability of the Pakistani perpetrators for their involvement in the 1971 Bangladesh Genocide. On account of the limited or no possibility for the physical appearance of the Pakistani war criminals, it explains the legality and legitimacy of their prosecution in absentia.    

Reservation, Equality and Non-discrimination,

Reservation in public service, concept of equality and non-discrimination 

Framing of Bangladesh Constitution: Some Unsettled Questions,

Framing Histrory of Bangladesh Constitution 

Way to Prevent Marine Environment Pollution,

Causes of Marine Environment Pollution and Protection Measures under UNCLOS III

Delay in Dispensation of Justice,

Causes of Delay in Dispensing Justice and Mitigating Measures 

Right to Encounter?,

Extrajudicial Kiling and Self-defence

Enforcing Court-Sponsored ADR,

Awareness for ADR

Protection Regime for Minorities,

Minority Rights, Minority Protection and Minority Commission 

Expectations from the new Chief Justice,

Public confidence, Public Perception and Expextation  

Who will Compensate the Victim?,

Just and Proportionate Remedy for Victims of Violance 

Compensatory Justice to the Victims of War,

Pain and Gain, Victm's Right, Proportionality 

Trial of International Crimes: Strategic Change is Due,

Speedy Trial, Effective remedy, Recognition 

Post War Justice Initiative: Collaborative Approach is Required,

Post War Justice, Plea Bargaining, Guity Plea

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