Very informative article by two renowned scholars:
By Dr. S. Serajul Islam and Dr. M. Saidul Islam
Although Bangladesh (formerly East Pakistan) got its independence from Pakistan in 1971 following a bloody war, the nation has yet to resolve one of its contentious issues, the issue of war criminals, that is still dividing the nation. Today, the country is ready to try the ‘war criminals’ not of Pakistani forces but of its own people who opposed the idea of an independent Bangladesh, fought for a united Pakistan, and committed war crimes.
As an election promise, the government of Bangladesh seems to be very serious in prosecuting the war criminals through a special tribunal despite doubts and skepticisms mounting from home and abroad regarding a free and fair trial. Recently, the American Muslim Taskforce on Civil Rights and Elections (AMT), a coalition of major national Islamic organizations, held a news conference on 22 March 2010 in the National Press Club in Washington, D.C., to call for ending, among other things, ‘suppression of political oppositions and wrongful accusation and persecution of Islamic leaders for so-called “war crimeâ€.’
A petition signed by AMT Chair Dr. Agha Saeed was also sent to the Secretary of State, Hilary Clinton (AMT Newsletter, Vol. 10, No. 1). International Bar Association (IBA) also found about a dozen loopholes in The Crimes (Tribunal) Act, 1973, by which the accused would be tried (bdnews24.com, Dhaka, 14 March 2010). Most importantly, Evidence Act and Criminal Procedure code application has been excluded by section 23 of the Act, and this may make the tribunal a kangaroo court. Therefore, despite the government’s commitment to assuring a fair and free trial, the whole move remains largely contested.
The AMT, along with other keen observers, think that the government is deliberately targeting a particular political party, Bangladesh Jamaat-e-Islami (BJI), the largest mainstream liberal Islamic party of the country that formed coalition government with Bangladesh Nationalist Party (BNP) during 2001-2006. They claim that Bangladesh Awami League (BAL), the party in power, came up with a plan to try the “war criminals†of 1971 and accordingly have created a discourse in which they have selectively targeted only the leaders of the BJI.
It is evident in history, however, that war crimes, alongside grievous oppression of civilians were committed in the 1971 war by the Pakistani forces and some of their local allies. Following the independence of Bangladesh, 195 Pakistani army officers were identified as war criminals in the preliminary investigation by the then Bangladesh government.
Following the Simla Agreement signed on 2nd July 1972 between Indira Gandhi, Prime Minister of India and Zulfikar Ali Bhutto, President of Pakistan, a number of agreements were signed between India and Pakistan regarding repatriation of the POWs. On 9th April 1974, an Agreement was signed between Bangladesh, India, and Pakistan in New Delhi in which, among other issues, the question of trial of the 195 POWs was raised and finally it was decided that they would be repatriated to Pakistan along with the other prisoners without trial (The Daily Tribune, Wisconsin, 10 April 1974). For better understanding, paragraph 15 of the 1974 Agreement is quoted here: “In the light of the foregoing and, in particular, having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past, the Foreign Minister of Bangladesh stated that the Government of Bangladesh had decided not to proceed with the trials as an act of clemency. It was agreed that the 195 prisoners of war may be repatriated to Pakistan along with the other prisoners of war now in process of repatriation under the Delhi Agreement.â€
On 24 January 1972, the government of Bangladesh enacted another law to try those who did not side with the liberation war, or politically opposed the call of liberation war, or willingly cooperated with the Pakistan Army or committed criminal acts. It was called the Collaborators Act, 1972. More than a hundred thousand persons were arrested under that Act. Of them, 37,471 persons were charged. Another 30,623 could not be prosecuted for lack of evidence.
A total of 2,848 were brought to trial. Of them, 752 were found guilty. BJI claims that, none of its leaders was ever convicted of war crimes. The remaining 2,096 accused persons were found not guilty and freed. Taking into account the overall situation (of discontent) obtaining in the country, in November 1973 the Government of Bangladesh under the leadership of Bangabandhu Sheikh Mujibur Rahman declared a general amnesty. By virtue of the general amnesty, those accused or convicted for minor crimes under the Act were all set free. But those accused of rape, murder, arson or plunder were not pardoned. In other words, the general amnesty kept the scope of prosecution and trial of those accused of such serious crimes under the Act. On December 31, 1975, the Collaborators Act was repealed by a Presidential Order. After the amnesty, the Act remained in force for a little over two years. In that period, no case was filed for the said four serious offences. Perhaps that was the logic behind repeal of the law in 1975.
The attempt of the Bangladesh government for trials of war crimes after 39 years is, however, according to many, a politically motivated act. It is claimed that the government is conducting a “hate campaign against some individuals before any charge has been brought against them, let alone be proved in the court of law.†Many apprehend that the tribunal will thus simply be a kangaroo court. A list of 36 war criminals has already been announced even before the trial has started and among them majority of them are from BJI. Few of them in the list were even between 4-8 years old during the war in 1971 (Daily Amar Desh, 28 March 2010). It is further claimed that “while the issue of war crimes was resolved internationally (through Simla Agreement) and nationally (through Collaboration Act), bringing it up again shows that it is highly politically motivated. Moreover, Bangladesh judiciary is now being subjugated by the current regime and therefore a fair judgment is absolutely unexpected from this politically motivated trial†(Daily Amar Desh, 16 February 2010).
The skepticism and doubts about a free and fair trial remain largely intact because of some fundamental reasons: First, the tribunal will not try the actual war criminals, the 195 Pakistani army officers, who were identified as war criminals but got released after a tri-party agreement between Bangladesh, India, and Pakistan. Second, it intends to try only some “collaborators†belonging to an opposition party who supported a united Pakistan but do not have any proven record of war crimes, such as killing, rape, arson etc. Third, the International Bar Association (IBA) thinks, the Act does not guarantee any free and fair justice and protection for the convicted ones. Fourth, it is not clear how much the judges of this court are either trained or neutral for this specialized kind of trials. According to various reports, most of the appointed judges and prosecutors are former party men of ruling coalition. Finally, many doubt that the legal apparatus is being manipulated and therefore expectation of a fair and free trial is a mere dream, while currently there have been rampant violations of human rights without any justice, such as 154 extra-judicial killings in 2009 (Odhikar 2009 Report).
More importantly, if the trial is not conducted freely and fairly for all criminals irrespective of any kind of political affiliation, the nation has to pay a severe price. In the first place, for example, if it targets only the members of Islamic parties, reconciliation with the Muslim world will be very difficult. While Bangladesh needs to build strong relations with the Muslim countries for financial support and for supplying manpower to those countries, this will have a negative impact. Second, having no alternative, the BJI which is openly involved in the democratic process of politics may go underground due to the unjust trial. If that happens, it will be dangerous for the nation. In Turkey, once Islamic party was banned for many years but it has come back to power now. BJI’s open activities can be banned temporarily but who knows it may come back if one takes the lesson from history. Third, the unfair trial will divide the whole nation as BJI has millions of supporters which are evident from last few elections. Finally, if the regime fails to conduct the trial, it will backfire the party-in power.
The whole move of the government so far seems to be interpreted by the international communities as nothing but an extreme political vendetta and is intended to subdue the opposition party/parties. This is called “victor’s justiceâ€, which is a questionable justice. The regime has already started a nation-and-worldwide campaign for this trial and obstructed the free movement and overseas travel of the BJI leaders. If this highly disputed trial is conducted unfairly, Bangladesh will certainly enter into another dark chapter of political chaos, uncertainties, and most likely a civil war. Every patriotic Bangladeshis believe that very tragic and pathetic incidents/crimes happened during the liberation war in 1971. If the trial is held, the government must ensure a free and fair trial beyond any doubt. The best way is to form an international tribunal under the auspices of the United Nations. It will not only provide credibility to the current regime, but also remains a reference for trying other war crimes committed elsewhere.
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*Dr. S. S. Islam can be reached at: sseraji99@yahoo.com , and Dr. M. Saidul Islam can be reached at: msaidul@gmail.com.
