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Flawed Justice in Bangladesh

The International Crimes Tribunal has its problems. But for many, flawed justice is better than none.

By Sudha Ramachandran for

A special war crimes tribunal in Bangladesh that is seeking to bring to justice those responsible for atrocities during the 1971 liberation war is itself in the dock. The tribunal is being accused of political motivation and bias, and criticized for failing to meet international standards of due process and fair trial.

Set up in 2010 by the present Awami League (AL) government, Bangladesh’s International Crimes Tribunal (ICT) is mandated to investigate and prosecute Bangladeshi nationals who collaborated with the Pakistan military regime during the liberation war.

How many people died during the nine-month war is disputed but official estimates put the figure at over three million people killed (East Pakistan’s total population at that time was around 70 million) and hundreds of thousands of women raped. The victims were mainly pro-independence Bangladeshi nationalists, secular intellectuals and Hindus.

Local collaborators, mainly the Jamaat-e-Islami (JI) and the armed militias it set up such as the Razakars, al-Badr and al-Shams facilitated the horrific violence – noted Bangladeshi journalist Haroon Habib describes it as "one of the worst genocides of the 20th century" – the Pakistan military unleashed to prevent East Pakistan from breaking away.

With the end of the war, the AL, which led Bangladesh to freedom, took quick steps to bring to justice those who participated in the genocide. In 1973, its government enacted the International Crimes (Tribunals) Act (ICTA), 1973, which provided for "the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.” However, these efforts at ensuring accountability ran aground with the ouster in 1975 of the AL government in a military coup. Subsequent regimes disbanded the tribunals, released all those detained and convicted, and rehabilitated the banned JI.

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With official trials of war criminals put on ice, some efforts at unofficial transitional justice were made between 1975 and 2008. In 1992, for instance, a Peoples’ Tribunal conducted a mock trial of several Bangladeshi war criminals, “convicting” them in absentia and sentencing them to death.

It was with the return of the AL to power in December 2008 that the official effort to bring the war criminals to justice was revived.  The process was set in motion in 2009 with the amendment of the ICTA, 1973, paving the way for the setting up of the ICT in 2010. A second court was set up in 2012.

For many Bangladeshis, especially those whose kin were killed or raped in the liberation war, the ICT is a bold initiative. “It is doing good work,” gender specialist and social activist Farzana Shahnaz Majid tells The Diplomat. Farzana’s father, a superintendent of police in Rajshahi was pro-liberation and was dragged away by the military in the first week of the liberation war. His body was never found.

Countless families like Farzana’s have been waiting more than 42 years for justice. 

The ICT indicted eleven persons on charges ranging from abduction to arson, rape, mass murder, war crimes, crimes against humanity and genocide. It has convicted eight so far and sentenced five of them to death.

Among those who escaped the death sentence is Ghulam Azam, who headed the JI’s East Pakistan unit during the liberation war and is believed have planned Operation Searchlight, a brutal crackdown by the Pakistani army in March 1971. His advanced age and ill health – the 91-year old is wheelchair-bound – helped him escape the noose.

Besides organizing violent protests on the streets of Dhaka, the JI is orchestrating a high-decibel campaign by its supporters in the Bangladeshi Diaspora to undermine the ICT’s credibility. The U.K.-based granddaughter of Azam, Aisha Rahman, has accused the ICT of political witch-hunting.  It has targeted “a small number of key political figures” belonging to the JI and Bangladesh Nationalist Party (BNP) although “crimes were committed by both sides [pro and anti-liberation forces] during the war,” she argues.

Indeed, nine of the indicted are members of the JI and two of the BNP. Close allies, the JI and BNP are sworn enemies of the ruling AL. They believe the AL is interfering with the ICT’s working and using it to shore up its declining support ahead of upcoming general elections.

Doubting the AL’s sincerity in ensuring accountability, a London-based Bihari Muslim writer points out that the government has not put on trial those who killed Bihari Muslims during the liberation war. The Bihari Muslims are Urdu speaking, unlike the Bengali speaking majority in Bangladesh and supported a united Pakistan. They were looked upon as traitors and slaughtered in their thousands by the pro-liberation forces.

A war veteran who spoke to The Diplomat on condition of anonymity dismisses allegations that the ICT has “targeted” opposition leaders. “These men were put on trial because they committed terrible crimes, not because of their political affiliations,” he points out. If the ICT did not put on trial those who killed Bihari Muslims, this is because such incidents “were few and far between compared with the genocidal killings by the Pakistan military and its local collaborators.”

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The setting up of the ICT was initially welcomed worldwide as “an important and long overdue step to achieve justice for victims.”

However, the way it functions has raised serious concern. Critics point out that the accused were not given fair trials; in several cases the number of witnesses the defense was allowed was curtailed, with one even “kidnapped” on the steps to the court. In one case, defense lawyers were not given enough time to prepare the case.  Besides, trials are not transparent and public discussion of court proceedings is restricted.

Particularly damning is the government’s flaunting of international legal norms. In the case of Abdul Qader Mollah, the tribunal handed out a life sentence. When angry crowds demanded he be hanged, the government amended laws enabling the prosecution to appeal to the Supreme Court (prior to the amendment, the law allowed appeal only in cases where the accused was acquitted). The apex court in turn awarded Mollah the death sentence. This changing of the law and applying it retroactively is a gross violation of international legal conventions.

Human rights organizations have opposed the tribunal’s award of death sentences. “The many victims of horrific abuses during Bangladesh’s independence war and their families have long deserved justice but the death penalty is not the answer. One human rights abuse cannot make amends for another,” Amnesty International said in a statement.

Giving war criminals a death sentence enjoys tremendous support in Bangladesh if the large rallies demanding this are any indication. Victims of the war crimes see execution as just desserts for the atrocities the war criminals committed. Some like Farzana fear that if the guilty are jailed, they could be freed by a future non-AL government. Indeed many want the executions of the convicted war criminals done without delay.

An ICT to bring to justice suspected war criminals was seen as necessary for Bangladesh to be able to close one of the most painful chapters in its history. Justice was seen as essential for victims and their families to achieve closure, paving the way for reconciliation.

But has the ICT’s functioning triggered new injustices that will come back to haunt this deeply polarized country? After all, a flawed justice is known to worsen existing conflicts and trigger new ones.

Bangladeshis say they recognize that an unflawed tribunal process is desirable. But in the circumstances in the country, this is not “fully possible,” the war veteran argues. “Putting the Jamaatis on trial was not easy,” he says, drawing attention to the many decades it has taken to set up a war crimes tribunal. “They may have lost the liberation war but they remain extremely powerful in post-1975 Bangladesh,” he adds.

Indeed, the many challenges faced by the Bangladesh ICT underscores how difficult it is to try powerful people for war crimes. The Jamaat and the BNP may not be in power at the moment but they have been powerful right through Bangladesh’s post-1971 history.

The AL’s rush to hasten the war crimes trial must be seen in this context.

Many of the criticisms leveled against the ICT are valid but rather ahistorical. And this annoys Bangladeshis who are hungry for justice.

Soon after the end of the liberation war, independent Bangladesh was forced to make huge compromises in the name of “peace.” Large-scale amnesties were granted to collaborators. Under a tripartite agreement signed by India, Pakistan and Bangladesh in 1974, 195 Pakistani military personnel charged with war crimes were granted immunity. Although Pakistan undertook to try them in its own courts, it did not do so. These soldiers were among the 93,000 Pakistani prisoners of war in India’s custody, who were repatriated to Pakistan under the 1972 Shimla agreement between India and Pakistan.

“Back then our demands for justice were brushed aside as obstacles to peace,” the war veteran recalls.  “We gave in hoping that peace would happen. But that never did. Instead the JI and other anti-liberation fundamentalist forces grew manifold,” he says.

For Bangladesh’s secular democrats the flawed justice of the ICT is preferable to no justice at all.

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Dr Sudha Ramachandran is an independent journalist/researcher based in Bangalore, India. She writes on South Asian political and security issues and can be contacted at [email protected].