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.