Pakistan's Illogical Stance | The Daily Star
12:00 AM, May 13, 2016 / LAST MODIFIED: 12:11 AM, May 13, 2016

Pakistan's Illogical Stance

Pakistan's national Parliament once again sided with war criminals by passing a resolution that drew condemnation in Bangladesh. In the resolution, it expressed "serious concerns" over the execution of Motiur Rahman Nizami for committing crimes during the Liberation War of Bangladesh in 1971.The resolution, passed unanimously, condemned the judicial proceedings and described them as against the law, justice and human rights.

Bangladesh's Law, Justice and Parliamentary Affairs Minister Anisul Huq in an instant response said, "Pakistan should realise that Bangladesh has been an independent country for the last 45 years and that it is not a part of Pakistan". The minister, representing the voices of millions, went on to add, "I want to say that Pakistan is the last country that should talk about human rights. We do not need a lesson on human rights from Pakistan". Pakistan's resolution contains three salient aspects. They could be summarised as follows:

The execution was a violation of the agreement signed between Bangladesh, India and Pakistan in 1974. As part of the Tripartite Agreement, the Government of Bangladesh "decided not to proceed with the trials as an act of clemency". The Government of Bangladesh therefore should uphold its commitments as per the agreement.

The only 'sin' of Nizami, whom the resolution termed as "political opponent," was upholding the Constitution and laws of Pakistan.

The act of suppressing the opposition by killing, which the resolution termed "was a judicial murder and violation of human rights", their leaders through flawed trials is completely against the spirit of democracy.

This article addresses the first two aspects of the resolutions, not the third one, since Bangladeshis hardly need to heed to a lecture on the 'spirit of democracy' from Pakistan. Neither do we owe any explanation to the Parliament of a state that committed genocide against our people, about the fairness of the trial process carried out through an open International Crimes Trials formed as per the constitutional provisions (Article 47(3) of a sovereign state, and was additionally endorsed on January 29, 2009 in the maiden sitting of the 9th Parliament. To maintain international standards and meet the requirements of the Rome Statute, the Bangladesh cabinet, upon recommendation of the law commission, approved the International Crimes Tribunal (Amendment) on July 6, 2009, aiming to try those involved in acts against humanity during the 1971 Liberation War.

Before the Tripartite Agreement, on April 17, 1973, after four days of bilateral talks, Bangladesh and India announced a "simultaneous repatriation" initiative to end the prisoner deadlock. Under this proposal, India would repatriate most of the 90,000 Pakistani POWs. In return, Pakistan would release the 175,000 to 200,000 stranded Bangladeshis, and take back 260,000 non-Bangalis (Biharis) from Bangladesh. Bangladesh, however, made it clear that India would not release 195 of the initially accused Pakistani POWs, and Bangladesh would try them, along with their local collaborators, for war crimes.

Pakistan accepted the proposal in principle, but refused Bangladesh's position to try the accused Pakistanis in Bangladesh. They threatened that if Bangladesh carried out the trial of the 195 Pakistanis, Pakistan would also hold similar tribunals against the Bangladeshis trapped in Pakistan. To prove that it was not an empty threat, the Pakistan government quickly seized 203 Bangalis as "virtual hostages" for the 195 Pakistani soldiers.

After about one year, Bangladesh finally accepted Pakistan's proposal, fearing the fate of 400,000 Bangalis trapped in Pakistan. With faith that Pakistan would hold the trial of the 195 Pakistanis involved in the wartime atrocities, Bangladesh withdrew its demand for trying them in Dhaka. It was clear that they were not freed without charges; rather they were handed over to Pakistan so that they could be prosecuted by their country's authorities.

At that time, Bangladesh continued the trial of local collaborators and hoped that Pakistan would keep its promise and try those soldiers for the horrific crimes they committed against humanity.

On July 15, 1973, Bangladesh amended its Constitution for the first time, to ease the process of the war crimes trials. Article 47 (3) of our national Constitution, added under the first amendment, states that: "Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces [ or any individual, group of individuals or organisation] or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this Constitution."

On July 20, 1973, the International Crimes (Tribunals) Act, 1973, was announced "to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law." 

Though the trials of the collaborators were abandoned following the assassination of Bangabandhu in 1975, Article 47(3) and the International Crimes (Tribunals) Act, 1973 -- which offers the trial of war criminals, including the "auxiliary" forces, for their crimes against humanity -- were not revoked by any government.

The second aspect of the Pakistani Parliament resolution is simply preposterous. While stating that Nizami "was upholding the constitution and laws of Pakistan", the members of the said Parliament seem to have forgotten the fact that during the time the crimes were committed, Pakistan did not have a Constitution to start with, and the country was run by martial law and the 'laws of the jungle'. The auxiliary force that Nizami was commanding was formed as per the 'laws of the jungle,' specifically to aid the barbarous Pakistani forces to carry out planned genocide against the freedom loving people of Bangladesh. While he was commanding the auxiliary forces and aiding the occupation forces to commit genocide,  he knew very well about the declaration of independence made on April 10, 197, which stated, "Whereas in the facts and circumstances of such treacherous conduct (of Pakistanis) Bangabandhu Sheikh Mujibur Rahman, the undisputed leader of 75 million of people of Bangladesh, in due fulfilment of the legitimate right of self-determination of the people of Bangladesh, duly made a declaration of independence at Dacca on March 26, 1971, and urged the people of Bangladesh to defend the honour and integrity of Bangladesh."

Except for Bangladesh, nowhere in history have defeated forces, which were responsible for committing genocide against a nation, been allowed to function as legal political parties in the same nation. Even prior to the Nuremberg trials, the Nazi Party of the Third Reich was absolutely banned in Germany. Likewise in recent times (1996-2012), during the trials for genocide of ethnic Tutsis by the ethnic Hutus in Rwanda, Akazu, the party of the Hutu extremists, became a non-existent entity after they were defeated by the Rwandan Patriotic Front that took control of the country. Jamaat-e-Islami was not allowed to function as a political party by the government that led our War of Liberation. Thankfully, there is once again a law in the offing to ban Jamaat as a political party once and for all; this could be a small atonement for the crimes they committed against humanity in 1971.  

The writer is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh.

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