MOFIDUL HOQUE retraces the nation's long quest for justice.
Bangladesh 1971 was in the limelight of the world's media. While the major centres of power were concerned with the events of the then East Pakistan and most western governments opposing the emergence of the independent state of Bangladesh, people everywhere showed sympathy and solidarity with the cause of Bangladesh. In 1971 the world was deeply involved with Bangladesh and the nation won its freedom through a bloody war of nine months paying a very high price with three million people dead, 300,000 women becoming victims of sexual violence and 10 million people seeking refuge in India. It was a human tragedy with few parallels in history. It was also a great story of the massive solidarity of the international community which was one of the determining factors behind the emergence of Bangladesh.
Acts of genocide and crimes against humanity
Pakistan, at the time of its birth, was a strange country with two wings separated by 1,200 miles of physical distance, established on the basis of a sole Muslim identity of the majority of the multicultural multilingual population. The centre of power lay in the west, with the civil-military axis dominated by the Punjabis, whereas the majority of the population were Bengalis of East Pakistan who had a rich tradition of their own language and culture, not to be overshadowed by religious identity. What happened in 1971 was the Pakistani government's “brutal nine-month suppression of Bengalis seeking independence for the then East Pakistan.” (International Crisis Group -- Bangladesh: Back to the Future, Asia Report N° 226- 13 June 2012). The major crime of the Bengalis was that they won an absolute majority in the first democratically held election in Pakistan in December 1970 and the Junta was not ready to handover power to the elected representatives. There was no denying the acts of genocide and crimes against humanity initiated by the military junta on the fateful night of March 25, 1971. This was not only a popular notion reflected in the international media and endorsed by numerous eye-witness accounts, but was also based on the understanding of international criminal law. The attack against the Bengali population especially targeting Hindus clearly showed the intent of the perpetrators to annihilate either wholly or partially a particular religious group. Most of the criminality was aimed at making East Pakistan free of Hindus. This outlook reflected the legacy of the partition of India in 1947 when in Punjab the policy of exchange of population was officially approved and executed, thus wiping out the Hindu population from the face of West Pakistan. This later on found reflection in the strategy to achieve a military solution to the political problem of 1971. In the official document 'Operation Searchlight', which planned to launch the military attack, the target identified was not military in nature but civilian. As the document stated, “Maximum number of political and student leaders and extremists amongst the teaching staffs, cultural organisations to be arrested. Operation must achieve a hundred per cent success in Dacca. For that Dhaka University will have to be occupied and searched.”
Another instruction laid down the task to carry out, “House to house search of Dhanmandi suspected houses, also Hindu houses in old city.” In the elite neighbourhood only the suspected houses would be searched whereas in the old Dhaka with strong Hindu presence every house became a potential target for the military.
Lt. Gen A.A.K. Niazi, Pakistani General who was made Chief of the Eastern Command, had shown some understanding of the reality of the two wings of Pakistan separated by a thousand miles. In his memoirs 'The Betrayal of East Pakistan' he wrote, “Except for religion there was hardly anything in common between the Muslims of East and West Pakistan. The distance was an impediment, hindering a rapport between the two provinces. The language was different, customs and traditions failed to merge. The diet was different. The dress was not the same. The culture of East Pakistan clashed with the culture of West Pakistan.”
But eventually he considered the Muslim majority population of East Pakistan as “Hindu-controlled Bengalis”, and wrote, “With twenty per cent of the population being educated Hindus, and given their dominance in all facets of life, who could have stopped them from dictating the national policies? The government would be formed by Bengalis, the iron fist in the velvet glove would be that of the Hindus.”
Like the Wannsee Conference resolution in Nazi Germany, 'Operation Searchlight' of the Pakistan Army was aimed to achieve a 'final solution' of the Bengali nationalist aspirations. Pak Army especially targeted the university students, teachers and cultural activists because they considered such groups as the most subversive and under the strong influence of Hindu teachers and their culture. With the venom of hatred, in the name of protecting their so-called Islamic religious identity, the Pak Army launched a “widespread and systematic attack against the civilian population.” What the military strategy meant in real terms was reflected in the conversation between the field level operator and command headquarters which was recorded and later published. On the night of 25 March, when asked by wireless about the number casualties inflicted upon the enemy the field commander replied, “Three hundred.” Then he was asked how many of them were dead or injured and how many captured. He curtly replied, “I do not believe in capturing, all of them are dead.”
'Operation Searchlight' was launched simultaneously from Dhaka and other major towns and cantonments to establish control over the territory. The plan treated almost every Bengali as a potential enemy and stated, “Awami League action and reactions to be treated as rebellion and those who support Awami League or defy Martial Law action be dealt with as hostile elements.”
The aim of achieving a quick military solution with a mighty and brutal blow evaporated soon as the Bengali people unitedly faced the onslaught and organised an armed resistance with the help of the Bengali members of the Pakistani military, paramilitary and auxiliary forces. As the Pakistan Army penetrated deep into the territory to establish control the carnage became widespread and systematic. They had to look for local collaborators and followers of religious-fundamentalist parties like Jamaat-e-Islami which became a strong partner. This alliance of the Pakistan Army and local collaborators could not save the situation for them but instead only aggravated the scenario. Major General Shawkat Riza of Pakistan Army admitted this reality in his book The Pakistan Army -- 1966-71 and wrote, “The military high command believed the Bengalis could be made to conform for another fifty years. From June onwards the Pakistan Army was chasing ghosts. The search and destroy missions were born out of fear. Day after Day, tired, highly strung troops, were sent out into the slush and verminuous vegetation. Every bush, every hut, every moving thing was suspect. Eastern Command had let loose a demon which no one could control.”
What this demon had done in the riverine lush green land of Bengal was reflected in the declaration of Pakistani General, Rao Farman Ali, who wrote in his desk diary that he would “paint the green of East Pakistan red.” The Pakistan Army succeeded in doing just that, resulting in one of the worst genocides of the 20th century. Such acts of massive brutality and atrocities raised due concern all over the world. It is very interesting to note that one of the first people to point out the accusation of genocide was the US Consul General in Dhaka, Archer K. Blood, a man of integrity with a better understanding of the on-the-ground reality. In his secret cables sent to the Department of State he tried to depict the real situation and titled his March 28, 1971 cable with the words: “Selective Genocide”. Later on in his memoir The Cruel Birth of Bangladesh he wrote, “As far as I know, it was the first time that term had been used, but it was not to be the last.”
Archer Blood had a good knowledge of the legality of the terms of international crimes and further explained that the term 'genocide' was not appropriate to characterise all killings of Muslim Bengalis, but “on the other hand 'genocide' struck us as applying fully to the naked, calculated and widespread selection of Hindus for special treatment.”
On June 13, 1971 The Sunday Times of London published a centre-spread report by the West Pakistani journalist Anthony Mascarenhas who defected to the UK to write the true story of Bangladesh. In this report titled 'Genocide', Mascarenhas wrote, “General Yahya Khan's military government is pushing through its own 'final solution' of the East Bengal problem. 'We are determined to cleanse East Pakistan once for all of the threat of secession, even if it means the killing of two million people and meeting the province as a colony for 30 years', I was repeatedly told by senior military and civil officers in Dhaka and Comilla.”
The massive movement of solidarity with the struggling people of Bangladesh reflected the universal recognition of the humanitarian crisis in Bangladesh. Strong voices was raised globally to stop genocide and a major event of solidarity was the “Concert for Bangladesh”, jointly organised by George Harrison and Pundit Ravi Sankar with the participation of major singers of the day. In Paris the leading actors organised a recital of Bengali poems translated into French and published an audio record of the performance. Andre Malraux, the author, art critic and activist tried to organise an international brigade similar to the one in defense of the Spanish Republic, thereby assisting the liberation war of Bangladesh.
Post-independent Bangladesh: Fallen from the map
Bangladesh emerged as an independent state with the unconditional surrender of the Pakistan Army to the joint command of Indian and Bangladesh Forces on 16 December, 1971. The joy of victory was overshadowed by the grief and pain of the gruesome killing of intellectuals by the Pakistani command and their local agents, Al-Badrs, the secret killing squad composed of leading student and youth activists of Jamaat-e-Islami. The professors, journalists, doctors, poets and academics were picked up blindfolded from their home and murdered to be dumped at the riverside brick-field. This happened two days before the surrender and reflected the deep hatred for the Bengalis the other side had.
The new state of Bangladesh, devastated by war, had to rebuild a new life facing serious odds. It did not gain immediate entry into the nations of the world. The Muslim majority countries were not eager to recognise Bangladesh. Bangladesh had to negotiate hard through the OIC (Organisation of the Islamic States) for the recognition it finally got in 1974. A seat in the UN was ensured even later in September of that year. Saudi Arabia and the People's Republic of China recognised Bangladesh only in 1975, after the brutal killing of the architect of the state Sheikh Mujibur Rahman. Bangladesh was also burdened with its own problems. Henry Kissinger, US Secretary of State, termed Bangladesh as a bottomless basket while on a short visit to Dhaka. The country was also devastated by flood and famine in 1974.
In spite of all the difficulties Bangladesh made its own effort to ensure justice for genocide, crimes against humanity and war crimes. But the decade of the 1970s was a dark period for international justice initiatives and after the pioneering efforts of Nuremberg and the Tokyo Tribunal and the adoption of the Genocide Convention in 1948 no further step could be taken in a world torn by Cold War rivalries. This period has been termed by Diane F. Orentlicher as 'a half century of silence' and the Bangladesh genocide became a victim of such imposed silence. For the international community the long silence ended when the Cold War was over with the collapse of Soviet Union. This led to the establishment of two tribunals by the United Nations, the ICTY (1993) and ICTR (1994). Diane F. Orentlicher wrote, “One of the hallmarks of this period has been an explosion of ethnic violence, at times entailing crimes against humanity. At the same time, the end of the Cold War also opened the way to superpower cooperation to establish tribunals that can punish epic crimes.”
But the new beginning in the international arena did not have any significance for Bangladesh as it was not only a victim of silence, but also that of forgetfulness of massive atrocities committed in the land in 1971. It is very surprising that a nation which received so much attention from the global community could be so completely forgotten in the subsequent years and decades.
Ian Martin, the former Secretary-General of Amnesty International, in a lecture delivered at the Liberation War Museum, Dhaka on March 22, 2011 pondered over the issue and observed that very few of the human rights organisations working internationally today existed in 1971, and as a result “the world of non-governmental human rights and transitional justice organisations has for the most part not carried within itself the memory of researching and protesting the crimes of 1971, as it does when they have been carried out more recently on their watch. But I remain perplexed that most well-informed people of strong human rights commitment, if asked to cite the genocides and mass atrocities of the twentieth century, will not think to include East Bengal 1971. Perhaps the most widely-read recent book on genocide, Samantha Power's 'A Problem from Hell', has just one paragraph on Bangladesh, although it amply deserves to be fully analysed within her theme of successive failures of US administrations to act to prevent such atrocities.”
We can cite many more examples: the most recent book published in 2012 is by David Scheffer, President Clinton's Ambassador-at-large for War Crimes Issues, titled All the Missing Souls -- A personal history of the war crimes tribunal. This great work of an intimate journey of a man of commitment to international justice had no reference to the Bangladesh genocide. The same is true for War Crimes: The Legacy of Nuremberg, edited by Belinda Cooper and published in 1999. Another significant book Crimes against Humanity: The Struggle for Global Justice by Geoffrey Robertson QC has no reference to the Bangladesh genocide or justice. But there are exceptions also, and one such work is Daniel Jonah Goldhagen's book Worse than War: Genocide, Eliminationism, and the ongoing Assault on Humanity (published in 2009) which elaborately discusses the issue of Bangladesh genocide and also the rape of women during the 1971 conflict.
Bangladesh: Quest for justice
As the Bangladesh genocide gradually became a forgotten genocide to the world, so suffered the effort to ensure justice for crimes of great magnitude. In the early 1970s, because of strong national pressure and also the cry for justice from the family of victims, the government embarked upon a lone journey on behalf of humanity to ensure justice for international crimes committed in 1971. Among the 90,000 Prisoners of War surrendered to the joint command of Indian and Bangladesh Forces, 195 persons were identified as war criminals, but no trial could be commenced as there was no international support for the justice process; rather there was strong pressure on both Bangladesh and India for the release of prisoners after the cessation of hostilities as per the Geneva Convention. Moreover, Pakistan had taken into confinement thousands of Bengalis working in West Pakistan, both military and civilian, their fate being similar to the Japanese-American interns during World War II. Surprisingly, there was no condemnation of such inhuman acts by Pakistan violating all international norms. Finally, with the Shimla Agreement between the Prime Minister of India Indira Gandhi, and Zulfiquar Ali Bhutto of Pakistan in 1973 all POW's were sent back to Pakistan. There was a tacit understanding that Pakistan would organise its own trial for those accused of serious war crimes, which never happened in a proper way but found reflection in the formation of a one-member Commission of Inquiry known as the Justice Hamoodur Rahman Commission.
In such a scenario the newly independent nation of Bangladesh initiated a justice process of its own with the proclamation of the Collaborators Act in 1972 to try in the local courts the large number of people accused of war crimes. For the major perpetrators it initiated a unique process with the adoption of the International Crimes (Tribunal) Act of 1973, popularly known as ICT-BD.
This was a very significant step taken by Bangladesh on behalf of humanity in the era of long silence to address the issue of international crimes. After the adoption of the Nuremberg Principle this was the first major effort to define international crimes and form appropriate tribunals to deliver justice. Significantly, Bangladesh was not all alone in its effort to look for justice. In the midst of the absence of national and international justice efforts to address international crimes, a group of jurists, prosecutors, academics and researchers kept the flame alive with their work to promote the concept of the International Criminal Court under the United Nations.
It can be noted that in the 1960s the 'World Peace through Law Centre' in Washington initiated discussions for effective international criminal justice through the realisation of international criminal law. The Foundation for the Establishment of an International Criminal Court was created and held its first Congress in 1971 in Wingspread, Illinois. In 1972 when the Second Conference was held in Bellagio, Italy, it scheduled a special session 'to deal with relevant problems involving Bangladesh'. There were participants from Bangladesh including the Minister of Law and Parliamentary Affairs and the Attorney General. From among the organisers of this justice initiative two international experts contributed to the drafting of the International Crimes (Tribunal) Act of Bangladesh. They are Professor Hans-Heinrich Jescheck, Director of the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany and Professor Otto Triffterer, one of the founders of the discipline of international criminal law and Professor for International Criminal Law and Procedure, University of Salzburg. The effort of Bangladesh supplemented by the international cooperation led to the formulation of an International Crimes Act with great historical significance. This Act was given special protection by the first amendment in the constitution adopted previous year.
Post-conflict Bangladesh had also undertaken various measures to address the grave problem of the massive victimisation of sexual violence. After the war the victims were honoured by the government with the title of 'Birangona' or 'War-heroine' and Rehabilitation Centres for the Victims were established in various parts of the country. An executive order was issued to allow abortion in the government-sponsored clinic. The international community came forward to assist Bangladesh in meeting this challenge. A time-bound act was formulated to allow adoption in foreign countries of unwanted children known as 'war-babies'. Such sensibilities on the part of the policy-makers found reflection in the International Crimes (Tribunal) Act where 'rape' was mentioned as a category of crimes against humanity. This is the first time that sexual victimisation was recognised as an international crime in any legal document.
It is understandable that the Act as amended in 2010 can be critically evaluated but its historic significance as the first such national legislation for international crimes cannot be denied. Moreover, this act evolved out of the global initiative of justice, however marginalised that might have been in 1970's. It is also significant that the Third Congress for the establishment of an International Criminal Court was held in Dhaka, Bangladesh in December, 1974. In his closing speech in the conference Manoranjon Dhar, Minister for Law and Parliamentary Affairs of Bangladesh said, “Coming as I do from the orient, with its firm mooring on spiritualism, I venture to think, as the old sages of the East thought, that it is the mind which in the ultimate analysis is the doer of everything. Along with the steps that are being taken toward the establishment of an international court of criminal justice attempts should be made through proper dissemination of ideas to make the people's mind prone to accept the approach.”
Unfortunately for Bangladesh all efforts to establish justice came to a halt with the killing of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman along with members of his family in August, 1975. The military junta came into power with support from religious fundamentalist forces and one of the early steps taken by them was to annul the Collaborators Act in December, 1975. There followed a long period of denial and distortion of history, as well as denial of justice. This was the dark period of silence and denial for Bangladesh and when the international community awakened again in the 1990s to begin a new journey to deliver justice for international crimes the case of Bangladesh could not attract much attention. The adoption of the Rome Statute in 1998 and the creation of a permanent International Criminal Court in 2002, a hallmark achievement for mankind, could not address the issue of retrospective justice in Bangladesh. Nevertheless, Bangladesh became an early signatory to the Rome Statute and also ratified it as the only South Asian state to do so so far.
In this context the justice process initiated by Bangladesh after 40 years of denial carries great significance both for the nation and the international community. Bangladesh brought to an end the long impunity the perpetrators imposed upon the nation and moved from denial of justice to the process of justice through a massive electoral verdict as expressed in the 2008 national election. Subsequently few amendments were made to the Act, a Tribunal has been set up in 2010 which formulated its own Rules of Procedure and the trial process is now ongoing. So far, nine persons have been indicted and three other cases are pending. The two tribunals are having regular sessions and at least three cases are coming to a close. The Tribunal is a domestic one addressing the issues of international crimes. It should be remembered that the International Criminal Court also highlighted the importance of domestic tribunals. In the preamble to the Rome Statute the ICC affirmed:
“that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”
“… that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.”
The International Crimes Tribunal of Bangladesh is one of the pioneer domestic tribunals set up for the trial of international crimes. Moreover it represents a justice process which seeks to end impunity that lasted over 40 long years. It faces many challenges including that of fair trial and ensuring due process of law. No nation has natural expertise on international crimes, and the relevant justice process and legalities. But it has the obligation to meet the challenge as and when required. The time has arrived for Bangladesh. It is expected that all concerned parties, the tribunal, the prosecution and defense, the victims, the media, civil society, and the wider population will make their necessary contribution to ensure fair trial and the establishment of justice. At this hour, Bangladesh also needs greater international cooperation which is essential to ensure internationally accepted standards in the trial process by learning from the experiences of other international tribunals.
When Bangladesh is taking steps to establish justice for the genocide of 1971 it is also the obligation and responsibility of the international community to assist the process of justice. We look forward to a global initiative to assist Bangladesh to come to terms with its history and ensure justice for past crimes, which will also contribute to putting the Bangladesh genocide back in the memory of mankind. It can also be hoped that the success of the domestic tribunal in Bangladesh may one day open up the opportunity to have a domestic tribunal in Pakistan to try the persons responsible for genocide committed in Bangladesh in 1971.
At the end I would like to quote from a recent article by Otto Triffterer from the book Old Evidence and Core International Crimes edited by Morten Bergsmo and Cheah Wui Ling, published by Torkel Opsahi Academic E Publisher, Beijing in 2012. Otto Triffterer wrote, “National jurisdictions may prosecute the relevant crimes committed even prior to the Act of 1973 and its amendments of 2009. Thus the Bangladeshi criminal justice system may become of importance for the interpretation of the Rome Statute and for perpetrators who can be held responsible by the Rome Statute and through its organs. In this sense we can only wish that Bangladesh holds fair trials and interprets the law bearing in mind the need to strictly construe it according to internationally accepted standards. Good Luck.”
At this historic juncture to uphold truth and justice for past crimes Bangladesh requires lots of good luck and good luck also to the international community in its endeavour to play its due role to end the impunity in Bangladesh and ensure fair trial for the crimes committed 40 years ago. Good luck to all.
Mofidul Hoque is Trustee and Member-Secretary, Liberation War Museum, Dhaka.