War crime trials: Our failure and future

To quote from the August 2004 report of the Redress Trust (London): "In Bangladesh, there was apparent political will to prosecute and punish those accused of perpetration of crimes relating to the 1971 events. The then government of Sheikh Mujibur Rahman decided to try those members of the Pakistani army who had surrendered, reportedly more than 95,000 in total, on charges of international crimes. Following an investigation, a decision was made to put on trial 195 'major war criminals' against whom strong evidence was said to be available.
"The First Amendment to the Constitution in 1973 provided legal backing for this course of action by envisaging the introduction of special laws allowing for the trial of persons charged with genocide, crimes against humanity, war crimes, and other crimes under the International Crimes (Tribunals) Act, 1973.
"However, the act did not come into force as the official notification to set it into motion was never issued by the government. The act provided for the establishment of tribunals which would 'have the power to try and punish any person irrespective of his nationality, who, being a member of any armed, defence or auxiliary forces commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this act, any of the following 'crimes' -- namely crimes against humanity, crimes against peace, genocide, war crimes, violations of humanitarian rules applicable in armed conflicts laid down in the Geneva Convention of 1949, and any other crimes under international law. Notably, the act included the crime of genocide committed against a political group, broader than the definition of genocide recognised in international law.
"The other category of war criminals were the 'Bangladesh collaborators.' In 1972, the Bangladesh government issued the Bangladesh Collaborators (Special Tribunals) Order, 1972. Several special tribunals were established with exclusive jurisdiction over offences covered by the order. The schedule of the act specified and divided several offences in four different parts according to their seriousness. Whereas homicide and murder carried the death penalty, most acts of torture were covered by offences listed in part two of the schedule that were punishable with rigorous imprisonment for a term not exceeding ten years and a fine.
"A large number of persons were charged and some convicted under this order. However, less than two years after the order had come into force, the then Bangladeshi government issued an amnesty and released the majority of persons held or convicted under this order, approximately 35,000 in total. While the amnesty did not apply to those charged with murder, rape or arson, apparently a large number of persons falling into this category, including prominent collaborators, were also released. The order was finally revoked in 1975."
To elaborate further, it must be mentioned that just after liberation there was a big hue and cry both inside and outside the country regarding the horrendous atrocities of the Pakistan army. The savage torture and brutal genocide incited every conscious person to raise his or her voice in favour of trial of the perpetrators of the genocide and crimes against humanity.
After release from prison in Pakistan, Bangabandhu Sheikh Mujibur Rahman stated from London on January 8, 1972: "There will be trial of perpetrators of genocide." On January 18, Robert Ozel, head of the International Criminal Court, sent a message to Sheikh Mujib mentioning that formation of a court was under process to address the crimes against humanity that occurred in Bangladesh.
At that time, a national investigation team was formed under the leadership of Deputy Inspector General of Police, Nazrul Islam, to unearth preliminary information. A report of the daily Iffefaq, dated May 9, 1972, mentioned 42 cases regarding the killing of intellectuals in Dhaka. The news agency, Ena, wrote on May 10 that allegations of war crime and crimes against humanity had been constituted against 1,500 perpetrators.
On June 6, 1972, the then foreign minister of Bangladesh, Abdus Samad, stated that there would be open trial of war criminals. He added: "Mr. Bhutto is creating pressure to release war criminals, [but] Bangladesh is not ready to resile from intention of holding the war crime trials." Meanwhile, on July 5, Sayed Abdus Sultan, high commissioner of Bangladesh to UK said: "Bangladesh has formed a tribunal for holding the trail of war criminals."
Meanwhile, Mr. John Connolly, special representative of US President Nixon, visited Dhaka with a 50-member team. He handed over a special message of President Nixon to Prime Minister Sheikh Mujibur Rahman. At that time, he mentioned to the press that he would not expect any country in South Asia to take any decision that would further complicate the situation in the area. That was a signal from the US to deter Bangladesh from the initiative to hold a trial. Nixon took a position opposing trial of war criminals. He raised a question regarding the legitimate right of the Bangladesh government in connection with the trial of Pakistani perpetrators.
Pakistan's President, Zulfiqar Bhutto, expressed his vehement anger by threatening to derail the peace talks with India if Bangladesh went ahead with war crime trials and, on December 4, 1972, threatened from Pindi: "If he [Sheikh Mujib] tries any prisoner of war then I would try same number of Bangalees stranded in Pakistan."
In the midst of that political row, a dialogue was going on between Pakistan and India regarding prisoners of war and other issues. Describing the events, D. N. Dixit, former ambassador as well as security adviser of India mentioned in his book, Liberation and Beyond:
"Four rounds of talks were held between India and Pakistan between February and late June 1972, with Aziz Ahmed, Secretary General of the Pakistan Foreign Ministry leading the Pakistani delegation. Haksar visited Dhaka twice during this period to get Mujib's concurrence on resolving issues related to the prisoners of war and the holding of war crimes trials.
"By April, Mujib had reduced the number of potential war criminals for trial from 400 to 195 and then to 118. And even in these reduced number of cases, the Bangladesh government was not expeditious enough to gather evidence or prepare the case documents. One wonders whether this was deliberate, on the basis of some understanding through back channels between Bangladesh and Pakistan at that time, or whether it was a genuine failure of not being able to gather credible evidence for an international court to try these war crimes. There was no doubt among the Bangladeshi public that war crimes had been committed."
An extraordinary constitution of the country was written just after liberation of Bangladesh. Many laws were incorporated in it to defend human rights and to uphold the secular democracy. Politics based on religion was banned by the Constitution as per Clauses 12 and 138.
Collaborators of the perpetrators of genocide were not legally allowed to participate in the election and cast vote as per Clauses 66 and 122. All these good laws were nullified by Gen. Ziaur Rahman after his assumption of power through a series of coups d'etat. All safeguards to prevent the political rights of war criminals and perpetrators of crimes against humanity were revoked by Gen. Zia through the Second Proclamation Order (No. 3) of 1975 and 1976.
In the process, those terms of Article 38 of the Constitution were erased that prevented politics based on religion. He also revoked Article 122 and, thereby, allowed the collaborators of heinous crimes to register themselves in the voter list.
As a result, most of the collaborators involved in war crimes, genocide, and crimes against humanity became staunch supporters of Gen. Zia and his party. It was Gen. Zia who revoked Clause 12 of the Constitution through Proclamation Order (No. 1) of 1977 to allow citizenship of those criminals who were leading a fugitive life in abroad. Thus, Golam Azam, the head of the Jamaat-e-Islami, who lost his nationality through the Citizenship Act Presidential Order (No. 8) of 1972 vide gazette dated April 18, 1973, got the opportunity to reclaim his citizenship and permission to enter the country.
Many conceived that the lack of experience and non-availability of lawyers experienced in international criminal law disabled the government when it came to the trial of perpetrators of war crimes and genocide. As a result, international support for the trial had evaporated by 1974.
However, even after that, in context of the menace of impunity, the trial is still possible. For that, what is foremost necessary is political will, next to that detailed documentary and forensic exhibits would be necessary to substantiate cases. FIRs of 1972 and records of instructions of perpetrator would be matter of paramount importance. As per the law, instructions of perpetrators and their collaborators, propagated through radio, television, wireless and print media can be used as court evidence.
In spite of the long delay and great many negative developments, the trial of the real perpetrators and their local collaborators is still possible and they can be put in the dock for their participation and collaboration in the acts of mass killing, rape, torture, and other crimes against humanity. To ensure that what is primarily required is correct political decision and firm commitment of the people. They must be put on trial to ensure the dignity of mankind and establish justice.
On this issue, the government of Bangladesh is bound by international obligations as well. Bangladesh ratified both the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on October 5, 1998.
Besides all international obligations, Bangladesh has its own law and constitutional mandate to address such matters. Above all, it is the people's desire and dream for justice that makes the trial imperative. The mass people of Bangladesh have never relinquished their demand for trial of the war criminals and perpetrators of genocide and crimes against humanity. The absence of trial has truly thrown the nation into a cycle of denial of justice, eroding the moral fabric and self-confidence of the nation. Now the government has to take the initiative to form an enquiry commission and tribunals to break the silence of impunity.
Dr. M. A. Hasan is Convener, War Crimes Facts Finding Committee, Bangladesh.