War Crimes, Justice and the Politics of Memory | The Daily Star
02:51 AM, April 01, 2013 / LAST MODIFIED: 02:51 AM, April 01, 2013

War Crimes, Justice and the Politics of Memory

Four decades into the war of independence, Bangladesh has re-initiated a domestic war crimes trial process that contains its own power dynamics, exclusions and silences. In this article, BINA D'COSTA weaves through divergent layers of the complex politicisation of memory by various actors. It provides a brief background of the current impasse, the fractured process and the hierarchical nature of various international discursive interventions delegitimising the trials and considers popular protests in Shahbagh, Dhaka, through which collective remembrance becomes a distinct and disputed social and political practice.

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In 2010 the Bangladesh government established an International Crimes Tribunal (ICT) to try war crimes and crimes against humanity committed during the liberation war of Bangladesh in 1971. In the 40 years that have elapsed since the liberation war, the demands of the Bangladeshi people for justice have remained captive to a political battle for power and continual revisions of history which have allowed key perpetrators of such crimes to evade punishment. While the 1971 war ended Pakistani sovereignty, existing power relations, political hierarchies and limited political and cultural ties with Pakistan persisted. The inevitable struggle for power in the years following the war, divisions between liberation leaders, and the heavy dependence of governments on political and economic alliances, allowed conservative groups who sided/collaborated with Pakistan during the 1971 war to re-establish a power base and a limited legitimacy.
It was in this context that the ongoing battle for power between the political dynasties of the ruling Awami League (AL) and the opposition Bangladesh Nationalist Party (BNP) developed. The leader of AL and the current prime minister of Bangladesh, Sheikh Hasina is the daughter of Sheikh Mujibur Rahman, the first president of Bangladesh who was assassinated in 1975. The AL, broadly centre-left and secularist, in persuasion, if not always in practice, was founded in Dhaka in 1949 by Bengali nationalists and was heavily engaged in the 1971 liberation war. The leader of the BNP, Khaleda Zia, is the widow of former president, and major general Ziaur Rahman (Zia), who was assassinated in 1981. Ziaur Rahman was himself a decorated sector commander,1 and in active battle in the liberation war. Jagodal, Zia's national front, was consolidated by him in 1978 to form a new political alliance BNP, a centre-right party, which since 2000 has been in formal coalition with the Islamist parties Jama'at-e-Islami Bangladesh and Islami Oikyo Jote.

Establishment of ICT
When finally the ICT was established in March 2010, the government quickly realised that this was a very large task to be completed during one term. On 26 July 2010 the ICT began its first hearing after which it issued arrest warrants against four of the accused – Motiur Rahman Nizami, Abdul Qader Mollah, Muhammad Kamruzzaman and Ali Ahsan Muhammad Mujahid – for crimes against humanity. In order to conclude the trials before the end of its term, the AL-led regime recently established a second tribunal (ICT 2) on 22 March 2012.
According to the International Crimes (Tribunals) Act 1973 and subsequent 2009 Amendment, the tribunal has the 'power to try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh' (article 3.1) a wide range of war related crimes. However, in practice the trials have largely focussed on alleged war-criminals of Bangladeshi/East Pakistani origin. Post-war tripartite diplomacy between India, Pakistan and Bangladesh, such as the 1973 India-Pakistan Agreement, 1974 Tripartite Agreement between India, Bangladesh and Pakistan for Normalisation of Relations in the Sub-continent, Bangladesh-India repatriation proposals stipulated that2 Pakistan would investigate and have the obligations to try those Pakistanis who were found guilty of war crimes. Pakistan also made similar promises in its submissions to the International Court of Justice on 11 May 1973.3 Unfortunately, these undertakings were not fulfilled afterwards.
Ten alleged war criminals, including eight leading members of the Jama'at-e-Islami political party and two from the BNP, have been arrested and are now facing trial. The trials have been criticised by international human rights organisations as an extension of the political-religious struggle for power in Bangladesh. The first ICT trial, that of Jama'at Nayeb-e-Ameer Delawar Hossain Sayeedi, commenced in November 2011. On 21 January 2012, Abul Kalam Azad was convicted of genocide and crimes against humanity in the first judgment of the Bangladesh war crimes tribunal. Azad was tried in absentia, as he was believed to have fled to Pakistan. The second verdict delivered on 5 February sentenced Abdul Kader Mollah to life in prison for crimes against humanity.4 On 28 February, the tribunal sentenced the 73-year-old Sayeedi to death for crimes against humanity.
There remains a substantial lack of confidence with the rule of law in Bangladesh and with the BNP's opposition to the trials the second judgment, was basically interpreted as a “get out of jail-free card”, either as soon as the AL is voted out of power or some other kind of political compromise takes place behind the scenes between the AL and Jama'at.

Shahbagh Protests
Subsequently, following a call from the Bloggers and Online Activists Network (BOAN), thousands of demonstrators assembled in Shahbagh on 5 February, right next to the Dhaka University Campus, one of the centre stages of ideological and political battles in 1971. The Shahbagh protests soon turned out to be a demonstration where hundreds of thousands joined and these protests subsequently spread to other parts of the country. The ongoing Shahbagh protests are demanding capital punishment for the war criminals and a ban on Jama'at, which is the largest Islamist party in Bangladesh.
It is certainly impossible to separate the trials of alleged war criminals, who hold or have held key leadership positions in one of the two main political coalitions in Bangladesh, from these political dynamics and the peoples' movement in Shahbagh. Unlike other public demonstrations in Bangladesh, Shahbagh protests appear to be state-sanctioned and have the visible support of its law enforcement authorities. It can be argued that for the ruling AL party the trial is as much about maintaining its tenuous grip on power as it is about justice. While there is some truth to this, it is also an oversimplification of the political, historical and ideological divide that has characterised the political landscape in Bangladesh.

International scrutiny
The proceedings of the ICT have encountered increased scrutiny internationally. Some of the main criticisms have related to the ICT Act, rules of procedure, and amendments to the Constitution. For example, the concerns expressed by the US State Department's Ambassador for War Crimes-at-Large, Stephen Rapp,5 were made in a personal rather than an official capacity. In this context, the possibility has been raised that his great interest in the ICT may have been induced by lobbying.
This author concedes that the ICT structure, proceedings and witness protection schemes have some serious flaws but this article does not seek to replicate existing critiques of the ICT.6 Regrettably, the ICT has been intolerant of criticisms even from long-time advocates for a justice mechanism who pushed for a fair and transparent process. For example, it issued a show-cause notice on the New Age newspaper editor, Nurul Kabir, and journalist David Bergman, on 4 October 2011 to explain why contempt charges should not be brought against them following publication of an article “A Crucial Period for International Crimes Tribunal”.
Justice and injustices
To date, there have been no visible, proactive steps taken by the government to sensitise the international community despite intense criticism. In post-war Bangladesh there has been a sustained campaign by activists of all kinds who demanded justice for the crimes committed during 1971. A primary goal of these various campaigns was to build a strong coalition across the political spectrum. This was indeed necessary. The sector commander's forum led by the war veterans which crosses the political divide is an example of this – ironically this alliance was forged during the emergency period in late 2007 when Bangladesh was under a quasi-military rule.
In the post-1975 period, in particular, the policy decisions of Dhaka, constitutional changes and a deliberate construction of revisionist history profoundly framed the justice movements and the subsequent questions about the fair trial process. Some of these measures included formulating domestic and foreign policies derived from economic necessity and the new state's aid dependency; the need to forge a diplomatic relationship and military alliance with Pakistan to deter a common adversary, India; forming alliances with the religious right and the gradual reinstatement of individuals who opposed the creation of Bangladesh in the name of religion. On the domestic level, these tensions have not only led to the zero-sum political competition between the AL and the BNP, but also resulted in other kinds of divisions such as between those who were in the front line during the war and those who returned to build the state, pro- and anti-liberation lobbies, and between military-religious alliances and development-rights coalitions.
A new kind of division also emerged with distinct struggles over memories between people who lived through and were directly involved in the war and whose memory of 1971 was deeply personal, and those who grew up in a society deeply imprinted by those experiences and whose memory of 1971 was produced or remembered through a variety of revisionist educational processes or shifting political loyalties. Commemorative rituals, oral history projects, museums, street theatre, and dedicated websites produce a symbolic, familiar social memory competing for legal and political claims. On the other hand, through the Jama'at leadership's ongoing assertions that they had not committed any wrongdoing in 1971,7 alliances, reinstatement of alleged war criminals in powerful positions, radical changes in textbooks the revisionist political projects continued to delegitimise such claims.
Both memory and forgetting are crucial here through the depoliticisation that takes place in the name of pragmatic politics of moving forward and coming to terms with the past and also through an effort to keep open a space for remembering the trauma of 1971 and seeking justice. These opposing processes have played a strong role in creating the current social fractures and recasting of political relationships in Bangladesh.
Of course in reality these divisions are not so straightforward and my intention here is not to produce binaries of such a complex process of framing the political history of a 42-year young state. But my intention is to emphasise that the role of history8 is crucial here, in strengthening some narratives and marginalising others and in recovering certain experiences while putting aside others. While both sides of politics acknowledge that a genocide took place and celebrate Bangladesh's independence, both present a very different view of that history. Both have actively promoted narratives that are consistent with and support their power base and ideology. For those accused of war crimes the revision of history has not just been a matter of political power but one of survival.
Many veteran activists have been heavily involved in the justice campaigns over the last four decades. United under a banner called the “National Coordinating Committee for Realisation of Bangladesh Liberation War Ideals and Trial of Bangladesh War Criminals of 1971” and led by Jahanara Imam, these activists campaigned for justice for decades and, in the absence of state patronage, initiated a campaign for trials. This resulted in the People's Tribunal that was held in Dhaka in 1992, drawing according to some reports 2,00,000 participants from all over the country. This symbolic trial was hugely successful and inspired many of the younger generation in Bangladesh.
In part, due to highly organised lobbying from the defence strategists and also in part due to a lack of transparency by the government, international and domestic critics dub these trials as only a political witch-hunt. It is crucial to note that long before the trial, there was numerous public documentation relating to alleged war crimes committed by the accused. The 1992 Peoples' Tribunal heard evidence that placed Gholam Azam as one of the key perpetrators of war crimes. Despite public outrage and petitions, the ruling BNP-Jama'at coalition regime nominated Salahuddin Quader Chowdhury (now on trial) as a candidate for the Organisation of Islamic Co-operation secretary-general post in 2003. The high-profile campaign was fully backed by Pakistan and Saudi Arabia while many other Muslim states had strong reservations because of Chowdhury's dubious credentials, self-confession as a killer of Muktibahini men during the war and as a suspect in arms smuggling trade.

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Flawed process and humanitarian imperialism
Non-state actors such as non-governmental organisations (NGOs), advocacy bodies and networks have played a significant role in transforming and shaping global norms for state behaviour and human rights. International human rights organisations run various public campaigns, which through naming and shaming press their advocacy targets to comply with human rights obligations. As such, we have to recognise the crucial role of international human rights groups lobbying in setting standards.
Data is critical to this discursive intervention of naming, shaming and compliance. Academics have suggested that the entire human rights implementation system at the UN would collapse without the data, documentation and flow of information from the human rights NGOs. Yet, the international understanding of what is credible and reliable information has resulted in a hierarchy of organisations providing this information. As such, influential international human rights groups such as the Amnesty International (AI) and Human Rights Watch (HRW) gain certain legitimacy in relation to the data and subsequent analysis that they present, with their claims to gather information from a broad range of sources and through fieldwork. In contrast, while locally-based groups have the data, they are not often able to interpret it in accessible language (which is usually technical and formula driven) for the international community and they are not believed to be objective or neutral reporters of politically sensitive matters.
This delegitimisation of local actors in international platforms in reality means the perception of international community is often based on what is reported in the international media and how the international human rights organisations analyse certain events. The international advocacy through its language makes assumptions about what is and is not accepted. These discursive interventions to shape public interpretations ultimately influence the capacities and acceptability of local justice processes.
The HRW, AI, International Center for Transitional Justice (ICTJ) and International Bar Association (IBA) reports and workshops on the ICT proceedings have met with disapproval by many observers from Bangladesh and their factual inaccuracies have been pointed out. For example, the International Crimes Strategy Forum (ICSF), one of the ardent supporters of the ICT, has responded to some of the concerns raised by the international community and also produced investigative reports on some of the international lobbying campaigns of Jama'at.
Opponents of the trial have carefully cultivated the political alienation of the ICT through a campaign orchestrated at multiple levels. In Bangladesh rhetoric at the political level, which has fostered political and religious divisions, has been accompanied by violence and intimidation at street level. These approaches have been complemented by sophisticated and strategic lobbying in various international forums of formal or high politics. Well-groomed, highly educated and articulate Jama'at loyalists and lawyers have used the rhetoric of international norms and standards to cast doubt on Bangladesh's ability and willingness to conduct a fair trial.

Weaknesses of the ICT
The Jama'at international lobbying and strategy team have benefited greatly from the structural and procedural weaknesses of the ICT and also by the failure of the Bangladesh government to reach out to the international community. Significant resources have been invested in lobbying and international outreach on behalf of the accused to question the trial. It is public knowledge that the defence lobby (some of the known campaigns are organised by Toby Cadman, John Cammegh, and Cassidy and Associates in the US) is very active in the international circles, trying to seek allies and providing an account of the revisionist history to the international community. Cadman, familiar with international criminal law proceedings through his previous experiences, is acutely aware of what makes the international human rights community tick. Cadman and his team approached various international organisations by falsely suggesting in a letter that Bangladesh is considering summary executions by 16 December 2012. Also, the already criticised ICT is yet to recover from the loss of image following the phone conversations and email hacking scandal and the resignation of the chairman of ICT 1. The highly-publicised transcripts confirmed the ruling party's eagerness to have at least one judgment by last December, the month celebrated through various commemorative rituals as victory month, because the Pakistani army surrendered on 16 December 1971.
One of the core functions of the criminal justice system is to prevent the innocent from being falsely convicted. The only way that this can be achieved is by providing for procedural fairness. It is a basic tenet that all accused should be entitled to a fair trial. The high standard of proof for criminal convictions, and strict rules of evidence have been developed to ensure procedural fairness. Procedural fairness is particularly important when the accusations are as grave as those before the ICT and when punishment includes the death penalty.
While the evidence against the accused is overwhelming, it is the duty of the ICT to ensure that this evidence is properly and fully considered. Vitiating against this is the crucial element of time. It is almost certain that the tribunal will be dismantled if the AL loses the next election. The current BNP opposition has made clear its stance on the ICT. The accused would almost certainly continue to evade justice under a BNP government, if not achieve active rehabilitation and return to political prominence and leadership. This political bipolar is the real tragedy for the Bangladeshi people who have waited 42 years for justice. The question for Bangladesh is whether flawed justice is better than no justice.
Shahbagh, the site of resistance
Philosophers have pondered about vengeance and its significance in justice processes for a while, in particular following the genocides in Rwanda and in the Balkan region. Some also agree that it symbolises important aspects of moral response to the wrongdoing. Jeffrie Murphy who has defended retributive justice noted, “a person who does not resent moral injuries done to him…is almost necessarily a person lacking self respect.”9 If we consider this, then it appears that the call for maximum punishment (in this case the death penalty) and retribution in Shahbagh is the beginning of Bangladeshis facing their history. Can we really sum up the protests in Shahbagh as one movement of just vengeance?
While the ICT is a mechanism of retributive justice, in Bangladesh there has been no simultaneous mechanism that could uphold restorative justice and focus on healing a society that has been so profoundly traumatised in the four decades of its sovereign life. Bangladesh will need to seriously consider a mechanism for peace and healing in order to move forward.
Past injustices perpetrated against communities present a host of new explanatory dilemmas concerning the practices and effects of physical and psychological trauma, the responsibilities of memory, the manifestation or expression of guilt and shame, and issues associated with bearing witness and personal testimony. As the Bangladesh case demonstrates, dealing with the past poses numerous questions about the relationship between the politics of memory and state identity. Such questions are vital for Bangladesh that is coming to terms with the past and for strengthening the resolve and ability of its society to combat and prevent political violence and injustice from being repeated in the future. Unspeakable violence committed against men, women and children must not be overlooked or forgotten because the impact on the society has been profound and enduring.
Over the last 42 years, despite the best efforts of various regimes and interest groups to deny or bury the past, the experiences of victims came to be recognised through various formal and informal ways. The value of fiction and non-fictions, memoirs, diaries, personal stories have had tremendous influence in forming public memory in Bangladesh. Traces of memories are presented as images in documentaries and films such as Muktir Gaan, Shei Rater Kotha Boltey Eshechi, The War Crimes Files and Itihash Konya and the past is imprinted in books such as Ekatturer Dinguli, Ami Birangona Bolchi and Narir Ekattur. These personal archives of memories are sacred, but they are also alive, evolving, negotiated and belong to the present to particular groups.10 Jay Winter and Emmanuel Sivan prefer the term “collective remembrance” rather than “collective memory” involving agency, activity and creativity. They write, memory is “the act of gathering bits and pieces of the past, joining them together in public…it is the palpable messy activity which produces collective remembrance.”11 How does this collective remembrance become a distinct social and political practice? Shahbagh, through its ritualistic celebrations of what is remembered and what is forgotten, constructs a site of resistance that belongs to those who collectively remember. Through this shared practice of memorialisation of 1971, it becomes a call of purging the “others” in 2013.
Countering these measures, there is renewed propaganda by the opponents of the trials, organising national and international meetings and distributing video clips and pamphlets that dub Shahbagh demonstrations as one where “atheists, secular-fundamentalists, Hindus and India's agents” are challenging Islam. By reframing Shahbagh's secular, all-inclusive spirit to be one that is opposing Islam the opponents of the trial managed to create confusion and incite further violence. The speech acts from all sides have pushed the country into chaos and as it happened in the past – especially in 1947 (Partition), 1971 (War of Liberation), 1992 (the demolition of the Babri Mosque), 2001 (post-election period) the minority communities bear the brunt of the violence.
Stora reminds us the furies are always there, waiting to return and stir a society from its sleep should it become unmindful to the demands of memory and justice.12 Yet as the Shahbagh protests convey, when the stories and experiences of victims of injustices become acknowledged (in Bangladesh's case through a war crimes trial process), they are inevitably accompanied by social and political disputes over their importance and meaning. One manifestation of these disputes is evidenced by the “hard fact” and the burden of proof of the criminal proceedings of the ICT and the apparent tension with what exists in Bangladesh's public memory. An interesting aspect of the Shahbagh movement is that many of the demonstrators are from a generation born after the 1971 war but who have grown up both with the memories of their families and the political revisionist histories. The Shahbagh protests have demonstrated the power of collective memory, but at times have also departed from this memory as the strength of resentment towards the individuals on trial has distanced the principal perpetrators of the 1971 genocide, the Pakistani state and its army.

Case for Closure?
At the end, there must remain a safe space that fosters critical, reflective thinking. Will the ultimate death of those on trial bring peace and a sense of closure at the end for a nation traumatised by its violent birth or will it deepen continuing divisions within Bangladeshi society? If peoples' awakening is meant to morph into something concrete and meaningful, then we must also consider a way forward, a way to healing. But perhaps the time has not come to raise this question yet.

1 On 4 April 1971, the Bangladesh forces was formed with Bengali-manned battalions of the East Bengal Regiment (EBR) under the command of Col M A G Osmani. During the first Bangladesh Sector Commanders Conference in 11-17 July 1971, for better management and coordination, the battle zones throughout Bangladesh/East Pakistan were divided into 11 sectors, each with their respective commanders in charge of the military operations.
2 Bina D'Costa, Nationbuilding, Gender and War Crimes, 2011, pp 96-99.
3 For details see Trial of Pakistani Prisoners of War, ICJ Reports 1973.
4 For details on the cases, and various critiques of the ICT see David Bergman, the War Crimes blog at http://b  angladeshw arcrimes.  blogspot.ch/
5 See the full rebuttal of Rapp's statement here, International Crimes Strategy Forum at http://bit.ly/MXpIRt
6 ICT does not have any dedicated website. For the most comprehensive documentation of the ICT see David Bergman, op cit, 4. Also see, Bina D'Costa, “Of Trials and Errors”, International vs National-Challenges and opportunities, BDNews, 3 March 2013.
7 Interview of Gholam Azam, “Ekatturey Bhul Korini: Gholam Azam o Jamaater Rajniri”, I Made No Mistake in 1971: Gholam Azam and the Politics of Jama'at, Weekly Bichitra, 17 April 1981.
8 Nora writes that history is a reconstruction of the past that has to be analytical and detached; that memory is always “suspect” in the eyes of history. Realms of Memory: Rethinking the French Past, 1996.
9 Jeffrie G Murphy, “Introduction”, Forgiveness and Mercy, 1988.
10 Pierre Nora, op cit 8.
11 Jay Winter and Emmanuel Sivan, “Setting the Framework”, War and Remembrance in the Twentieth Century, 1999.
12 Benjamin Stora, La Gangiene et L'Oubli: La Memoire de la Guerre d'Algerie, 1991.

Bina D'Costa (bina.dcosta@graduateinstitute.ch) is at the Graduate Institute of International and Development Studies, Geneva.
The author thanks Sara Hossain, Rayhan Rashid and Gita Sahgal for their comments on earlier versions of this article.
This article was originally published by the Economic and Political Weekly, India, Vol XLVIII, No. 12, March 23, 2013.

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