Why it took so long to bring the War Criminals to Justice in Bangladesh?

Through the election of 2008, the Mohajote (a national alliance of liberal and left political parties) formed the government in Bangladesh. In its election manifesto Mohajote had explicitly flagged the program of bringing the war criminals of 1971 to justice. In the election Mohajote came into power with more than two-third majority. This can be taken as a clear democratic mandate of the government to pursue justice for the crimes committed by individuals (e.g. leaders of Jamat-e-Islam and auxiliary paramilitary forces- Rajakar and Al-Badar forces)  and organization (presently known as Jamat-e-Islami Bangladesh) during the 1971’s War of Independence. Presently by setting up International Tribunal for trying Crimes against Humanity committed during the War of Independence- the government is implementing its election-commitments. Why Bangladesh had to wait so long a time to start this process? A question that requires our attention to understand the context of the tribunal and the challenges it faces.

One of the spoke persons in Bangladesh news media, Syeed Ahamed, has provided a detailed account of how Bangladesh’s attempt to bring those who had committed crimes against humanity during 1971 has being a trying game. He informed that-

Some 90 to 95 thousand Pakistani prisoners of war (POWs) were imprisoned after they surrendered to the Joint Command of Bangladesh-India. Bangladesh on 29 March 1972 declared its intention to try some 1,100 Pakistani war criminals— including A.A.K. Niazi and Rao Forman Ali Khan^[1].

Meanwhile, some 32,000 local collaborators were arrested on various charges by September 1972. The government initially prepared for 20,000 prosecutions, while lack of evidence hindered the trial of the rest^[2].

The Bangladesh Collaborators (Special Tribunals) Order, 1972 was announced to try the local war criminals. The constitution of Bangladesh was also amended to include Article 47 (3) in order to fasten the trial of members “of any armed or defence or auxiliary forces” for genocide, crimes against humanity or war crimes^[3]. The International Crimes (Tribunals) Act, 1973 was announced on 20 July 1973 mainly to try the Pakistani war criminals^[4].

The government also announced a two-tier trial process where national and international jurists would be appointed to try some high profile war criminals, while an all-Bangladeshi jurist panel would try the rest^[5].

To begin the trial of Pakistanis, Bangladesh requested India to hand over the accused POWs. India agreed to hand over only those Pakistani POWs against whom Bangladesh could provide evidences of atrocities (prima facie cases)^[8]. Initially, Bangladesh provided evidence against 150 POWs, and India agreed to hand them over to Bangladesh^[9]. Eventually, specific charges were brought against a total of 195 Pakistani war criminals.

To prevent Bangladesh from trying the Pakistani war criminals, Pakistan government took a series of atrocious actions including: preventing the 350-400,000 entrapped Bangladeshis from leaving Pakistan and making them hostages; keeping the Bangali officers in “concentration camps”;^[11] 

imprisoning thousands of Bangalis without charges^[12] ; and announcing thousand rupee reward for capturing every Bangali who were trying to escape from Pakistan. On August 10, 1972, Bhutto threatened to use China’s veto power to stop Bangladesh from getting the UN membership if Pakistani soldiers are tried^[13], and China actually vetoed against Bangladesh’s membership at the UN on August 25, 1972^[14]. On May 27, 1973, Bhutto announced that, if Bangladesh tried the Pakistani soldiers, Pakistan would also try the Bangalis in similar tribunal for passing information during the war^[15]. Pakistan arrested 203 senior Bengali officers for this threatened trial^[16]. In 1973, Pakistan proposed that they would establish a judicial tribunal to try these 195 Pakistani officers if Bangladesh abstained from trying those POWs in Dhaka^[18]. They also kept more than 200 Bangalis as hostages until the 195 Pakistanis were released.

It appears that Bangabandhu had to abstain from trying those 195 Pakistanis in Dhaka in a bid to rescue Bangladeshi citizens from Pakistan, to get UN membership (which was vetoed by China on Pakistan’s behalf), and most importantly to ease the path to foreign aid and the Middle East labour market.

On 22 February 1974 Pakistan recognised Bangladesh^[20] and on 24 March it released the remaining 206 Bangladeshi hostages from their captivity^[21]. Finally, a tripartite agreement was signed between Bangladesh-India-Pakistan on 10 April 1974 under which those 195 Pakistani war criminals were repatriated.

At the same time, the tepid pace of trial given lack of resources meant thousands of potentially innocent people were languishing in prison. To address these issues, Bangabandhu announced a conditional general amnesty on 30 November 1973 for everyone except for those who were involved in rape, arson, looting or murder. Hence, many such collaborators got away through general amnesty with a condition that if their role in murder, rape or arson is found, they will be brought to justice again. 

After the 15 August (1975) tragedy, the military regime repealed the Collaborator Act altogether and the rest of the collaborators were eventually released….. Collaborator Act was repealed by the military regime of which Ziaur Rahman (the founder of Bangladesh Nationalist Party- BNP) was the key member, his government (or any subsequent one) did not repeal Article 47(3) and the International Crimes (Tribunals) Act, 1973 which provides the basis of any trial of those who committed war crimes and crimes against humanity in 1971.

 Conclusion:

1.     

1.  Bangladesh, from its very inception, has attempted to bring both the Pakistani and Bangladeshi war criminals (accused of committing crimes against humanity) to justice.
2. Bangladesh had to release the 195 Pakistani POWs to repatriate 350-400,000 entrapped Bangladeshis from Pakistan and also as a part of its process to win international support in its pledge for UN membership. Moreover, In 1973, Pakistan proposed that they would establish a judicial tribunal to try these 195 Pakistani officers if Bangladesh abstained from trying those POWs in Dhaka.
3. In November 1973, at the face of severe resource and administrative constraints along with urgency in ensuring that innocents are not kept detained over a long period without trial- Bangladesh government had to provide amnesty to local war collaborators except for those who were involved in rape, arson, looting or murder. At the same time, there was a provision that the amnesty will be revoked if their role in murder, rape or arson is found, they would be brought to justice again.
4. On ceasing power through military coup and assassination of the First Prime Minister and leader of the War of Independence on 15 August (1975) - Sheikh Mujibur Rahman, Major Ziaur Rahman (the founder of BNP) dismantled all legal provisions of trying war crimes of 1971. Moreover, he released all local “collaborators” who were imprisoned for committing crimes against humanity.
5. The present government came into power (through the National Election of 2008) with more than two-third majority and therefore holds a clear mandate to pursue the trial of the war criminals (individuals and organizations).

A large proportion of the main architects of 1971’s War Crimes are leaders of Jamat-e-Islami Bangladesh. The main opposition party (i.e. Bangladesh Nationalist Party- BNP) of the country is also the prime force that had previously dismantled the legal tools to try war criminals. The same party had also released the imprisoned local collaborators (accused of war crimes) and later had reinstated them into politics. Therefore, BNP is opposing Bangladesh’s International Tribunal process along with Jamat-e-Islam Bangladesh.

Tribunal in Bangladesh sets Justice as the Priority

To refute an allegation against Bangladesh ICT on the ground of not clearing definition of crime we will take two paths. Firstly, we will explore what the laws provide. Secondly, we will discuss the case of Simone Gbagbo’s indictment by ICC and explore how looking beyond “military hierarchies” was not dictated by any prior ruling on scope and definition of the crime; rather was set as an example through action. 

One can find the response of the Tribunal-1 to be adequate regarding the argument of the defense lawyers urging the Tribunal to make ruling on definition of Crimes against Humanity. The Tribunal informed, “In regard to definition of crimes mentioned in the Act and elements thereof, we are of the view that the definitions are quite clear and complete without any ambiguity. The Act was drafted in an era when the crimes enumerated therein were fairly known and understood to the world, and were very much part of customary international law. Therefore, we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals where the International Crimes Tribunal of Bangladesh do not have any such obligation to do so. However, the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interest of justice. In regard to thresholds of the crimes against humanity and its nexus to armed conflict and the requirement of knowledge, as stated above, we are of the view that the crimes under the Act are adequate in all aspects and therefore it is not necessary to visit other recent notions developed by the statutes of various international tribunals.” 

At the same time, the defense attempted to set a ruling on- “what conducts constituted crimes against humanity in 1971?” based on the conditionality set by the Extraordinary Chamber of the Courts of Cambodia. However, the context and contents are different in every country and the laws need not be explicit in recognizing these aspects (as the international legal norms are quite adequate). An example can be found with regard to changing context and legal application of indictment with regard to war crimes as charged against the wife of the former president of Cote D'Ivoire. The international Criminal Court (ICC) unsealed the indictment of Simone Gbagbo, wife of the former president of Cote D'Ivoire, Laurent Gbagbo. Laurent Gbagbo was already in detention in The Hague, awaiting trial at the ICC, charged with orchestrating a campaign of violence in an effort to remain in power after losing an election. The ICC indicted Simone Gbagbo for her involvement in that post-election violence, asserting that she was personally responsible for crimes against humanity, including murder, rape, and persecution. Significantly, this was the first indictment of a woman by the ICC, perhaps signaling a change in the role of gender in international justice. Yet, the case's most important legacy may instead be the ICC's new willingness to look beyond formal governmental and military hierarchies in identifying those most responsible for serious international crimes. This aspect of looking beyond “military hierarchies” was not included in the conditionality set by the Extraordinary Chamber of the Courts of Cambodia.

Conclusion:

1. The Tribunal has adequate flexibility to draw upon jurisprudential developments from other jurisdictions should it feels so required in the interest of justice. 
2.  The Tribunal makes it clear that legal provisions are adequate. In this regard, it should be kept in mind that this legal tool had once already being applied in Bangladesh to identify crimes against humanity.  
3. Lastly, the changing context of war crimes does not always require definitional clarity as prerequisite, because the International Tribunals set new standards through adopting to the changing context. The International Tribunal on Crimes against Humanity in Bangladesh is also similar in this respect.
4. The demand of defense lawyers of Jamat-e-Islami Bangladesh in ICT regarding following the Cambodia experience as a framework- is an example of undermining the process set on motion to buy time and add to confusion to popular conceptions. The ICT on the contrary can choose to be further innovative. In this regard prevailing international norms do not prescribe prior rulings to dictate actions rather to set examples through novel actions (as for example in case of Simone Gbagbo the incident of looking beyond “military hierarchies” was not dictated by any prior ruling on scope and definition of the crime).

Anatomy of a Film along with an Obituary to a Critic of its Critics

Anyone who is familiar with War Crime Trial knows that media plays an important role in molding international opinion. In a large way ICT functioning has been found to be influenced by global opinions. From this perspective, it is significant that Al Jazeera made a 3 minute film on Gulam Azam. Golam Azam the former chief of the Islamist party Jamaat –e-Islami is now on trial in Bangladesh with charges of crimes against humanity. He is accused of collaborating with the Pakistani army, and ordering the killing of millions during the country’s 1971 war of independence.

What did the film try to convey? Let us not get into any preset opinion; rather I will place the sequences in order so that one may form an independent opinion:

1.  On commentary we hear the charges against Gulam Azam.
2. The commentator introduced Gulam Azam as a person who once led Jamat-e-Islami and now “he can’t walk, he can’t really see nor can he really hear. Yet he has 10 armed police officers watching him at all times. 
3.  The son of Gulam Azam denies any involvement of his father with war crimes and claims that his father had logic for supporting Pakistan.
4. News clippings showing Gulam Azam’s call to support Pakistani Army –while on commentary jamat-e-Islami is termed as a “small” party during 1971.
5. After Independence,  Jamat-e-Islami was banned and then found to become the 3^rd largest party in 8 years.
6. Interview of the defence lawyer claiming that all the 8 who were indicted by ICT were leading “political leaders” of opposition.
7. Commentary on a UN working group claiming that the arrest of these men were “arbitrary and in breach of international law”.
8. Interview of Minister of law (without context) leading to a statement demanding that the tribunal was not international but a domestic one so the detention was not illegal.
9. Commentary informs that the present government’s election manifesto had the agenda of holding trial of the war crime offenders. And the government is determined to fulfill its pledge.
10.  With Gulam Azam’s picture the commentator informs that, if found guilty he will face death penalty.
11. “Whatever the decision this court comes to, It will have dramatic consequences. It may bring justice to many but at the price of throwing Bangladesh into further political instability”- concludes the reporter.

Now let us discuss! I for one end up concluding that the film gives an edge to the 89-year old former leader of Jamat-e-Islami (the 3^rd largest political party of Bangladesh) who is presently “detained” (that’s what the commentary informs us no matter what the Minister claimed)- a man who is now so feeble that he can’t walk, talk or see. The defence lawyers make us believe that Gulam Azam, along with 7 other top opposition political leaders, is arrested by the government to undermine opposition (nothing to do with justice). For the Western ear (not for the Middle East viewers who are habituated with Shariah law-based practice of beheading) the commentator leaves the message that this man is facing death sentence in a tribunal which is formed as a part of the government’s commitment to punish the alleged war criminals! The conclusion tells us that Bangladesh government (although in the election it had received more than two-third majority) does not know what’s best for the country. Justice is not the key concern- the reporter educates; the key concern is to prevent political instability (well it keeps us guessing when will someone from the international community gets this message across to Bangladesh).

This is what anyone who does not even know Bangladesh and its history will probably make out of the film. Well someone who knows Bangladesh wrote so on a daily. This brings us to another critic. Let’s call him the “critic of the critic”. What he does in criticizing the Bangladeshi critic of the film is extraordinary:

1. He regrets that media is trying to be a friend of the government – as otherwise there will be negative implications. This is why the piece was written (the film and its content has got nothing to do with it). Now how good do you know Bangladesh? Probably you have not ever read a single line before on the country. Learn from the expert who dwells in this third world autocracy- that what he tells us! 
2. He finds that the film was not biased – it had the victim’s perspective and he makes us believe that it is obvious around the world to hold such a perspective for the sake of neutral. Now that’s some logic! 
3.   After writing the 3,771 words long post on his blog- he realizes that his own bias can become obvious. So he explains, “Why spend so much time on this, you may be asking. This is because it is important to stop the harmful and dangerous misrepresentation of journalism and journalists which is playing into the hands of those who want the ICT to be spoken about using a one dimensional script”. So he was on a benevolent mission towards Bangladesh (after all someone has to tie the bell)!

So you can very well see- what Bangladesh is facing in its pursuit to bring those who had been accused of committing crimes against humanity during 1971? It’s not just being attacked by international media (such as this Al Jazeera film) for conducting the trial (which pushes old feeble politicians at the risk of being sentenced to death!!) but also being criticized by international media’s self-claimed monitor for criticizing such negative media campaign (as it makes us the harmful and dangerous misrepresentation of journalism and journalists)!!! Where do we get these critics? Beats me!! But let me share a hunch – war crimes are highly political and it draws global attention- may be too many “journalists” with too much idle time in hand are aware of this!

Court room Drama of Defence and the Baffled Armatures on Blogs

On Tuesday, November 6, 2012, the defence of war crimes accused Jamaat-e-Islami leader Delawar Hossain Sayedee boycotted International Crimes Tribunal-1 as the prosecution began arguments in the case. The day was fixed for the start of the prosecution's arguments in the case. Before that, the defence in the morning alleged before the tribunal "plainclothes police abducted" their witness from the road near the High Court shrine. According to news report, the defence demanded direction from the tribunal in this regard. Interestingly, while the tribunal wanted to take a little break to enquire about the allegation, the defence did not want to give any time for and in everyone’s dismay boycotted the courtroom around 1:15pm and did not return after lunch break.

This was another show staged by the defence. The local sources informed that Mr. Shukharanjan Bali was from the very beginning an element of drama that Jamat-e-Islam Bangladesh managed through some form of miracle. Being Hindu by religion and a key witness regarding one of the charges brought against Sayedee (a prominent leader of Jamat-e-Islami), Mr. Shukharanjan Bali was a trophy that defence wanted to present at any cost. In Bangladesh, it is in general not at all common for any Hindu to affiliate with Jamat-e-Islami- more so in case of any form of testimony concerning genocide and atrocities conducted during the War of Independence. Jamat-e-Islami does not allow anyone but Muslims to be its members (this is a violation of the registration law of the country under the present Election Council law) and the party does not find any fault in its position during 1971 when it functioned as auxiliary forces of invading Pakistani military.

Nevertheless, on the blogs- many “experts” conducted analysis on the issue. Although, these discussions died out soon as - no concrete evidence in favor of the alleged abduction could be found and no reliable witness could be produced by the defence. The defence lawyers and journalists with close political affiliations with Jamat-e-Islami Bangladesh were the only witnesses.

On the blog, few photos from CC camera were posted (while claims were made that the images of the CC camera remained unexplored) -which showed no evidence regarding the validity of the alleged abduction. The photos were circulated to establish a visual confusion – as in many occasion people do not read the fine prints below the photographs. Let us have a look at few of these photos:

1. White vehicle coming parked outside one of the tribunal gates. The journalist Golam Azam is said to be the person in the foreground. At this point, Bali is said to have already been put in the car.

2. Close up of vehicle. Man on outside is claimed to be from  detective branch. The unclear figure in the car is said to be that of Bali who was wearing a white shirt on the day. The face on the other side of the car, outside, is said to be that of Advocate Sohag

3. Police vehicle leaving the tribunal with Bali inside. The man in the foreground of the picture is said to be that of  the journalist Shahidul Islam

It can be seen that none of these images can be treated as visual proof. One of the “self-designated monitor”, of ICT Bangladesh, used quotes of one of his source in his post and then changed it by saying, “The original post said that Tajul Islam had said that the witness stayed at the house of Masud Sayedee, the son of Delwar Hossain Sayedee. Whist that was what Islam had said to me, this is apparently not what happened. In fact he stayed at the house of a relative.” These reflect how unprofessional these web-posts are even though they are broadly circulated.

None of these posts and analyses stopped to question- why would the police choose to “abduct” the defence witness from within the premise of the Tribunal? or Why is there not a single witness beyond the defence lawyers and pro-Jamat journalist? More importantly - why the witness at the first place choose to cooperate with Jamat-e-Islam (a political party which is notorious for its anti Hindu campaign not just during 1971- it continues the same culture of spreading hate and carrying out rampage against the religious minorities in Bangladesh till date)?? Let us close the case by informing on Jamat-e-Islami Bangladesh and its relation with people like Mr. Shukharanjan Bali. Recently the cloud of confusion over Jamat’s democratic practices was cleared at least for Amnesty. Recently at the outburst of violent campaign of Jamat-e-Islami Bangladesh, the Amnesty report provided context to the violence against the Hindus in the backdrop of Bangladesh's war crimes trials. “The Hindu community in Bangladesh is at extreme risk, in particular at such a tense time in the country. It is shocking that they appear to be targeted simply for their religion. The authorities must ensure that they receive the protection they need,” said Abbas Faiz, Amnesty’s Bangladesh Researcher. Victims told Amnesty that the attackers were taking part in rallies organised by Islamist party Jamaat-e-Islami (JI) and its student group Islami Chhatra Shibir.

Conclusion:

1.  The blog-based journalists and web-based news media have reflected unprofessional attitude (by using unreliable sources and making strong comments without any support of evidence) regarding ICT Bangladesh. This raises a caution- as the world media and global human rights organizations are often depended upon these forms of reporting- a reality and reliability check should be made before citing any such reports.

2.    The approach of using visuals in blog-reporting can confuse unsuspecting readers who often tend to ignore the fine prints below the photos (sometimes these images are left without any title). 

3.    Jamat-e-Islami Bangladesh is keeping no stone unturned in its attempt to discredit the charges brought against its leaders on the count of crimes against humanity- this may involve dramatic events. Wise heads must prevail to question reliability of any such event as Jamat is only depending on forceful presentation of its case- not on accuracy or legality of their means.

The baffled armatures on the blogs are not the only campaigners who are spreading confusions over the ICT Bangladesh process. There are obviously pro-Jamat-motivated web campaigners who are also undermining the trial to free the imprisoned leaders of their alleged Islamic outfit of communal, undemocratic and violent war criminals.