War Crimes Trial in Bangladesh: No Kidnapping & No Kidding

There are now some alleged war criminals of Bangladeshi origin in UK. Now imagine what will be the reaction of the Economist if Bangladesh expresses its “intention” of abducting them from UK to place them in trial within the framework of International Court of Justice. I am sure even before Bangladesh attempts to take on such a mission- the Economist would urge the ‘global” community to put a blockade on Bangladesh so that “she comes to her senses” and “comply to the international standards”.

Last month however, in an article on Bangladesh, the Economist wrote- “In 1961 Israel kidnapped Adolf Eichmann from Argentina and put him on trial for crimes committed 20 years earlier. Eichmann had been secretary at the Nazis’ Wannsee conference that led to the Holocaust. His trial in Jerusalem was a model of meticulous process. The prosecutor was Israel’s attorney-general; the defence lawyer, a leading German attorney; the proceedings were broadcast. They were everything the Holocaust was not: open, subject to evidence and challenge, and legal.” Now why should then there be a double standard for Bangladesh???

You may (for obvious reasons) take the article as a propaganda against Bangladesh’s International Crimes Tribunal (ICT). Economist knows it. So it attempts to refute it with high-sounding phrases such as, “The Economist has no sympathy for the views of Jamaat or its backers. But justice does not exist solely for those with a particular approved outlook.” This statement indicates that the Economist is aware that the article has indeed demonstrated “sympathy for views of Jamat” (Jamat is an Islamist terrorist outfit). Economist wants to mask its position by chanting that “justice does not exist solely for those with a particular approved outlook.” Don’t forget that the Economist just praised an action taken by a state for “kidnapping” an accused from another independent state for an alleged crime “committed 20 years earlier”. Thus the bias of Economist towards Jamat cannot therefore be hidden. Unfortunately this means Bangladesh cannot dare to take up any adventurous means to bring back some of the accused now dwelling abroad - come to think of it so far Bangladesh has not expressed any such intention of kidnapping as well.

It is not clear why the Economist is against Bangladesh while she is merely bringing the accused who are dwelling within her border to justice? For the Economist it is a question of justice not being served as – “The government has interfered in the court’s deliberations. Public discussion of the proceedings has been restricted.” The truth is just the reverse. A quick Google-search is enough to demonstrate that there is no restriction on public discussion on these proceedings (it also makes you wonder Why on Earth Economist raised such a flimsy claim?!?). In fact the media attention is unprecedented over these proceedings ever since the tribunal initiated its activities. The Economist brings in the issue of government’s interference as most of the readers are expected to believe it (Economist assumes that readers are willing to believe that “in a country such as Bangladesh- these interferences are normal”). However, please note that this so called theory of interference is based on accusations brought by paid-defense lawyers and Jamat for no other reason but to undermine the credibility of the trial. It is true that the role of the government is not neutral when the interest of Jamat-e-Islami Bangladesh is considered. Government’s initiative to organizing the tribunal to bring the war criminals to justice outrages Jamat! But this in no way raises question regarding the neutrality of the tribunal. The government has not interfered with courts’ deliberations- it expressed urgency in getting justice at the earliest. The national parliament of Bangladesh, like any other democracy, has framed and updated the law of the tribunal to make the process “open, subject to evidence and challenge, and legal”. This law and legal process have agitated Jamat- but for no justifiable cause these had also saddened Economist. It wrote, “Sadly, most Bangladeshis are cheering on the tribunal’s flawed proceedings.”

When I wrote “Tribunal in Bangladesh sets Justice as the Priority”- I refuted many of the negative propagandas of Jamat-e-Islami Bangladesh and I find that it is valid also for of the Economist. The dark grammar of sickening violence of jamati brotherhood is an article which shows whom (a terrorist outfit which is now deploying its killing-squad to spread fear and anarchy in Bangladesh) the Economist is defending and the cost that Bangladesh is paying in her pursuit for justice. The double standards will have to be abandoned before justice comes into the focus of the media merchants such as the Economist.

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).