Sentencing Practice: Bangladesh–
In Abed Ali –V-State (42 DLR AD 171) our Appellate Division considered mitigating and aggravating circumstances and considering proportionality concept, refused to commute death sentence, stating that claimed extenuating factor in the form of provocation remained unproven.
The Appellate Division’s decision in Abul Khair-V-The State (44 DLR AD 225) also reveal that our Courts consider mitigating and aggravating circumstances in determining the sentence where statute allows discretion. Our law also permits restoration and rehabilitation both for juvenile as well as adult offenders. The children’s Act, as amended in 2013 allows restorative rationale while the Probation of the Offenders Ordinance (XLV) of 1960, allows this rationale for both Juveniles and adults .
Under Ordinance XLV of 1960, if a person (irrespective of age) without previous conviction, is convicted of an offence punishable with no more than two years imprisonment, a Court can pass a probation order in the alter of inflicting punishment, or to discharge him after admonimation, or subject to condition of signing a bond, when probation order appears appropriate.
So, through a chain of high preponderant judicial pronouncement, as well as by such statutory commandments as the Probation Ordinance and Children’s Act, Bangladesh Judicial System apply all the sentencing rationales that are in prevalence in the developed judicial regimes, such as (i) deterrent, both individual and general, (2) just desert (retributive or not), (3) resorative and rehabilitory (through statutory mandate). And, in applying these sentencing rationale the Courts take account of the principles of proportionality, commensurability, aggravating and mitigating circumstances as are done in other developed judiciaries. (Paras:927-930); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

Sentencing Practices in Crimes Against Humanity Cases Oberseas–
With the onset of the 2nd World War, the idea the responsibility of war criminals found expression in many international instruments.
In October 1943 the leaders of three powers published the declaration on responsibility of the Hitlerites for the atrocities committed, where it was said that the guilty will be tried on the spot by the peoples who had suffered violence in their hands. The declaration read,
“Let those who have hitherto not imbued their hands with innocent blood beaware lest they join the ranks of the guilty, for most assuredly the three allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that Justice may be done (The Nuremberg Trial Vol. 1 P 17-21).” (This declaration surely indicated retirbutivism).
These Declaration, signed in Teharan guided the International Military Tribunal at Nuremberg, (IMT) whose charter enunciated the basic indicia of crimes against peace.
Although the theme of International Criminal Law and Courts were within the contemplation of Hugo Grotius, (1625) the recognised patriarch of international law, with the formulation of the Nuremberg Charter a new generis of crimes known as War Crimes and Crimes against Humanity came to the vogue, initially under public international law though.
Nuremberg trial was the first historical precedent for bringing to trial and punishing the most dangerous of them who committed War Crimes and Crimes against Humanity.
On 8th August 1945 the agreement between the Governments of the designated states was signed and the Nuremberg Charter was ratified.
Although crimes and punishment for murder, rape, arson, unlawful confinement had been in existence even before the Nuremberg charter, crime against Humanity, comprising murder, rape, arson, unlawful confinement etc emerged as a new concept which also permeated into the municipal law of several countries subsequently. (Declaration signed by Three Powers, (Nuremberg Trial Vol. 1 P 21). Although co-ordinating the actions of the members of the Tribunal was not an easy task for not only the socio political but also the legal systems of the four Powers were unidentical, nevertheless, the jurists of four countries found in each instance mutually acceptable solutions, by forging a singular, in many ways, unique, procedural formula, quite effective as they all shared the common will of punishing the perpetrators harshly. (surely applying retributism)
So, the IMT widely resorted to the Soviet principle of an active Court, allowed cross examination which is more characteristic of Anglo-Saxon Law. Assessment of evidence in accordance with the inner conviction of the Judges.
Although the sentencing rationale applied by 1TM has not been spelt out in black and white, the language used in the 1943 Declaration, part of which has been reproduced above, along with other expressions that found places in other declarations, reproduced below, make it abundantly clear that retribution and just desert conjugated with general deterrent rationale played the dominant part. That they emphasised “retribution” as the foremost is reflected from the following passages, which found place in different declarations and statements; “The War criminals 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 the liberated countries and of the free governments which will be created therein”(Declaration on the responsibility of the Hitlarites for the atrocities committed 1943). The Soviet Union, advocated the principle that “severe punishment must overtake all who are guilty of these most atrocious crimes against culture and humanity. (lbid P = 87).
Molotov expressly and publicly promised that the Soviet nation “would never forgive the atrocities, rape, destruction and mockery which the bestial bands of German invaders have committed and are committing against the peaceful population of our country “(lbid P-87, statement p-16).
Molotov’s statement clearly indicates that he meant retributive punishment. Encouraged by the Soviet example, the London representatives of the Captive European States, who met at the conference of January 13, 1942 at the palace of Saint-James, issued a declaration to the effect that they “place among other principal war aims, the punishment through the chanel of organised justice of those guilty or responsible for these crimes whether they have ordered them, perpetrated them or in any way participated in them”. (Text of Resolution on German War Crimes signed by Representatives of Nine Occupied Countries: Voices of History 1942-1943 by F Watts, New York 1943 page 33).
This text also indicate that the allied countries meant retributive punishment through the chanels of organised justice.
Molotov repeated his pledge, stating “Hiltar’s government and its accomplices will not escape severe responsibility and deserved punishment for all their unparalleled crimes perpetrated against the peoples of the USSR and all freedom loving people. “(Vneshniaia Politika). Again, the flavour of Retributive and “Just Desert” rationale is apparent from Molotov’s statement.
The British Prime Minister, Winston Churchill on 8th September 1942 made the following statement in British Lower House;
“I wish most particularly to inform his Majesty’s Government and the House of Commons with the Solemn words which were used lately by the President of the United States, namely, that those who are guilty of the Nazi Crimes will have to stand up before tribunals in every land where their atrocities have been committed in order that an indelible warning may be given to future ages, and the successive generations of men may say, “ So perish all those who do the like again”. (The Nuremberg Trial and International Law. Page-14) The voice of the British Prime Minister, who had a pivotal role in setting the IMT into motion, is easily discernable to the thesis that he also meant retributive punishment with element of general deterrence.
President Roosevelt of the United States also, by his reply dated 21st August 1942, to the representatives of the Governments in exile, associated himself with the idea of judicially administered retribution. (Nuremberg Trial and International Law page- 15)
Molotov advanced an additional suggestion stating;
“The Soviet Government considers it essential to handover without delay for trial before a special international tribunal and to punish according to all the severity of criminal law, any of the leaders of Fascist Germany who in the course of the war have fallen into the hands of states fighting against Hitlerite Germany”. (lbid page 52-54). The phrase “punish according to all the severity” can not be misunderstood as regards the applicable sentencing rationale.
Joseph Stalin, who had a prime role in setting up the IMT, delivered a speech on 6th November 42, part of which is reproduced below, which divulge that retributory sentence was contemplated;
“Let these butchers know that they will not escape responsibility for their crimes or elude the avenging hand of the tormented nations” (War Speeches p-48). The words “avenging hand” keep no room for qualm on the theme that retributive punishment was meant.
On 19th April 1943, the Soviet Presidium passed a decree prescribing that German-Fascist criminals guilty of grave crimes against Soviet citizens were to be punished with death by hanging and their accomplices with hard labour.
Between July 14th and 16th 1943, eleven Soviet citizens were tried pursuant to the aforementioned decree under the Soviet municipal law for atrocities committed in Soviet Union in collaboration with the German occupation authorities, and eight of them were sentenced to death notwithstanding their guilty plea. The punishment awarded was obviously retributive. This was the first instance of a trial of this kind for crimes connected with the 2nd World War. (Trial in the case of atrocities by German-Fascist invaders and their accomplices on the territory of the city of Krasnodar and the Krasnodar region during their temporary occupation – Moscow 1943) and also New York Times 30th July 1943 P-5).
Barely a week after the release of the Moscow Declaration, Stalin on 6th November 1943 stated;
“Together with our Allies, we must adopt measures to ensure that all the fascist criminals responsible for the present war and the suffering of the people, should bear stern punishment and retribution for all the crimes perpetrated by them no matter in what country they may hide” (War Speech P 82) Here the word “retribution” was actually used.
This statement was adopted by the “Commission on the Punishment of War Criminals of the London International Assembly. (History of the United Nations War Crimes Commission and the Development of the Laws of War, London 1948 page -100-1001).
Immediately after the cessation of the 2nd War, a series of public trials were conducted in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev and death sentences were meted liberally. (Pravda, December 16-21, 1945, New York Times, 30th December 1945 P-6 and January 6th 1946, P-4, New York Times, 31st December 1945, Pravda, 27th December 1945 P-3). (Paras:934-955); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment