Once more I have encountered Judge Agnieszka Klonowiecka-Milart, a member of the International Bench of the Extraordinary Chamber of the Courts of Cambodia (ECCC) or the hybrid tribunal, as it is popularly known, in Phnom Penh during the sessions of the Forum on the Prevention of Genocide. Judge Agnieszka was in Dhaka in September, 2011 and visited Bangladesh Tribunal as well as the Liberation War Museum. She came as a member of the delegation to the international seminar organised by Morten Bergsmo of the Forum for International Criminal and Humanitarian Law (FICHL) and got a good understanding of the trial for crimes of genocide undergoing in Bangladesh. In Phnom Penh during the lunch-break, we were exchanging pleasantries and the Polish Judge, slim and agile, was negotiating the stairs holding the railings. She told me apologetically that this has became a habit for her, as in the specially built Cambodian Court she always grips the railings because the steps are too narrow. She murmured, "May be quite OK for the Cambodians with their small feet, but not for us Europeans."
This struck me as the reality of the trial of perpetrators of genocidal crimes, now going on in various parts of the world where each Tribunal has to develop its own distinct mode to suit its purpose to deliver justice. It also reminded me what Mahdev Mohan, Assistant Professor of Law at the Singapore Management University observed while analysing recommendations of international experts on ICT of Bangladesh. He wrote, "In order to have resonance and to be properly understood and received, any proposed legal reforms to the ICT-BD must be context-sensitive and not simply one-size-fits-all approach."
The international judge has to negotiate the Cambodian stairs to reach to the cherished goal of justice and adjust herself accordingly. The same is also true for the national judges of Cambodia and the journey is not an easy one. In such backdrop the justice process and end of impunity in Bangladesh is creating resonance in the international community promoting justice for genocide and crimes against humanity. We found such understanding of reality in the 4th Regional Forum on the Prevention of Genocide held in Phnom Penh, Cambodia on 28 February- 1 March, 2013.
The Forum has been established by 4-nations: Tanzania, Argentina, Cambodia and Switzerland. The office of the Council of Ministers of Cambodia, Swiss Ministry of Foreign Affairs, Ministry of Foreign Affairs and Worship (as it is called) of the Republic of Argentina and the Ministry of Foreign Affairs and International Co-operation of the United Republic of Tanzania launched this Forum in 2008 to promote a qualitative exchange and dialogue among State and civil society representatives with a view to deepen understanding about what it means for states and societies to develop national perspectives and strategies for the prevention of genocide.
This writer had the opportunity to take part in the 4th Forum as one of the panelists focusing on the role and responsibilities of non-state actors and the ways forward. The other members of this panel were peace activist and religious leader from Thailand Sulak Sivasaksa, UK-based journalist and researcher Salil Tripathi, human rights and conflict resolution activist from Korea Jae Young Lee and Youk Chhang, the well-known Director of the Documentation Center of Cambodia who played a big role in making the Cambodian trial a reality. Professor Alex Hinton, President of International Association Genocide Scholars presided over the session.
Professor Gareth Evans, former Foreign Minister of Australia and President Emeritus of the International Crisis Group made an eloquent speech at the Forum and in between the sessions shared with us his observation on Bangladesh genocide. He spoke about his attempt to highlight this dark episode of history in one of his books on Asian experience of genocide. In his speech he further said, "Genocide and other conscience-shocking mass atrocity crimes did not begin with Hitler's holocaust, nor have they been confined to Europe and Africa, or to war or civil war situations. The Asian story over the last century has been as distressing as anywhere else." He gave a long list of genocidal atrocities in Asia, beginning with the traumatic experience of the host nation Cambodia where in the mid-1970's up to two million died under the Khmer Rouge regime. The list includes horrible record of group-targeted violence by the nationalists under Chiang Kai-shek, atrocities of the communists under Mao Zedong, US massacre in Vietnam, Indonesian massacre of 1965-66 when more than 500,000 people perished, Dilli massacre in Timer-Leste in 1991 and again in 1999 etc.
Among the recent atrocities he mentioned the recurring ethnically-driven violence against the Rohinga Muslims in Arakhan / Rakhine state of Burma and the horrifying violence in Sri Lanka in 2009 during the bloody endgame of the government's war against the separatist Tamil Tigers. He also dwelt on similar ugly violence in southern Philippines and southern Thailand. Of the South-Asian experiences he specially mentioned, "the brutal Pakistani response in 1971 to the self-determination struggle in what is now independent Bangladesh."
The 4-nation initiative was launched in Buenos Aires, Argentina with a Regional Meeting held in December, 2008. The second regional forum was held in Arusha, Tanzania in March, 2010 followed by the third regional forum in April, 2011 in Berne, Switzerland. The fourth regional forum being held in Phnom Penh, Cambodia was attended by more than 150 participants from 29 countries. Apart from this author, the Registrar of the ICT-BD and representative of the Foreign Ministry was the two other members of the Bangladesh delegation. It was a great occasion for us to present the case of Bangladesh genocide and the process of justice to the broader audience. The participants appreciated the role of the state in ending impunity and setting up of the domestic tribunal. The deep involvement of the younger generation with the trial process has surprised many because in many other places even with massive outreach programme of the court society remains passive to the trial process. Eradication of impunity for past genocide is one essential aspect of preventing future genocide. In its final declaration, the Forum has made an appeal to the States and International Actors to "contribute to eradicating impunity and bring those most responsible for genocide and mass atrocities to justice."
The case of Bangladesh has drawn special interest of the representatives of the International Association of Genocide Scholars and it is hoped that in their future work, due attention will be given to Bangladesh's long journey to justice and the process of law it is following. The legal aspects of the International Crimes (Tribunal) Act of 1973 also attracted interest among the academics and activists. Dr. Daniel Feierstein, Director of the Centre for Genocide Studies of Argentina has shown special interest in the definition of genocide as provided in the Bangladesh Act which termed genocide as "act committed with the intent to destroy in whole or in part, a national, ethnic, racial, religious or political group." The political group criterion was not in the definition of the Genocide Convention of 1948, neither in the ICC statute.
But Dr. Daniel Feierstein maintains that this meaning of genocide was in the two earlier drafts of the Genocide Convention written in May 1947 and April 1948, but it was carefully edited out of the final text. He thinks that the international law has faced a paradox here, by protecting some groups and excluding others such as political, gender or sexual identity groups from its protection, it created a legal instrument that has proved to be almost useless given that nearly all modern genocides are to some degree, politically motivated. Nevertheless, he thinks that new interpretation can be given to the words “partial destruction of the national group” to focus attention on the wider purpose of genocide and the way it targets the whole population of a particular territory. He represents the new thinking among the genocide scholars who are dedicated to broaden the definition in line with the ground reality.
Dr. Feierstein places the genocidal acts in new perspective and brings up the issue of destruction of national identity as a major aim of genocide. He is not in favour of challenging the definition in the Court of Law but look for opportunity to accommodate the broader perspective in the interpretation of law. He thinks that because of such constraints many judges and academics abandoned the notion of genocide in favor of "crimes against humanity”. Fortunately, this is not the case in Bangladesh where in the indictments both the charges of genocide and crimes against humanity has been included. But in the Bangladesh trial charges of genocide have been put only in case of targeted killing of a religious group, that is the Hindus. Here also Dr. Daniel Feierstein has other thought based on the experience of Nazi atrocities and holds the opinion that the ultimate aim of extermination of the Jews was to destroy the German nation and its identity based on internationalism and cosmopolitanism. The Jews and Romas were targeted as part of this aim of destroying the national identity. This perspective makes the Jews not a separate identity, but part of German identity, what the Nazis disliked most. Such interpretation of genocidal intents has great relevance for our reality also.
The Argentine trial has other significance for us. The Generals in Argentina have been accused for their crimes against humanity, universally defined as widespread and systematic attack against civilian population. This is easier to prove and do not lead to much controversy, but the Argentine civil society is not comfortable with such charges as the civilians were targeted not as an individual but as part of a group or part of Argentine national identity. After long arguments and campaign they finally got a verdict where the judge has termed the atrocities as "crimes against humanity perpetrated under the framework of genocide." Such interpretation of international criminal law is quite interesting to study from Bangladesh perspective.
The organisers and participants of the 4-Nation Forum to Prevent Genocide have shown deep interest and understanding of the justice process for international crimes in Bangladesh. The role of the civil society and the involvement of the younger generation have excited them greatly. They are looking forward to work with Bangladesh in the disposition for justice. It is very important for Bangladesh to raise its voice of truth and justice of past crimes in a strong way and pave the path of cooperation with the international initiatives working towards prevention of genocide. It is essential that Bangladesh add its experience and understanding to the 4-Nation initiative and the time to do that is now.
The writer is an Essayist and Cultural Activist.