The process of bringing to trial those involved in what should be considered crimes against humanity during the 1971 War of Liberation against Pakistan is a bold move to remove a national stigma.
The Sheikh Hasina government has opened what could turn out to be a new chapter in Bangladesh's history, setting in motion a process that was long overdue: the trial of those involved in what should be considered crimes against humanity during the 1971 liberation war against Pakistan. On March 25, 2010, the government announced the formation of a tribunal, an investigation agency and a prosecution team under a law enacted as early as in 1973.
Horrendous crimes were committed during the war: some three million people were killed, nearly half a million women were raped and over 10 million people were forced to flee to India to escape military persecution. Justice has not yet caught up with the perpetrators. This has had a profound effect on Bangladesh over the decades since.
The trial is not just a fulfilment of the current government's political commitment, but a step towards meeting a national obligation to the judicial process. It is an important step to meet the nation's commitment to restoring the rule of law.
In the general elections of December 2009 in which the Awami League-led grand alliance won a resounding mandate, the issue of a war crimes trial played a role. An overwhelming majority of the people, especially those from the new generation of voters, evidently marked their unequivocal support for the demand.
The Sheikh Hasina government has recently seen the judiciary meting out punishment to the assassins of the country's founding father, Sheikh Mujibur Rahman. The historic trial was held after 34 years of the bloody changeover that forced the new-born nation to detract from its secular ‘pro-liberation' line. And by starting the war crimes trial three and half decades after the war, the government has shown both courage and conviction to accomplish an unfinished national task.
The investigators have identified and are pursuing the perpetrators, and the trial has popular support. But the process is facing resistance from the government's political opponents, particularly from the fundamentalist and right-wing parties. Understandably, such resistance comes mainly from the Jamaat-e-Islami that took a stand against the country breaking free from Pakistan. But the Jamaat got a boost when it mustered tactical support from its political ally, the Bangladesh Nationalist Party (BNP) led by Khaleda Zia.
The trial is meant to bring to justice those collaborators of the Pakistan Army who perpetrated genocide, mass rape, arson and looting. It is also a rejuvenation of the ‘Spirit of 1971' on the basis of which the former East Pakistan became Bangladesh. The trial makes a moral point: that the rule of law must prevail and justice must be dispensed to those who committed the crimes.
The irony is that while the trial process that was initiated soon after independence got frustrated following the assassination of Sheikh Mujib in 1975. In the light of the Simla Agreement signed between the Prime Ministers of India and Pakistan on July 3, 1972, and the tripartite agreement signed on April 9, 1974 in New Delhi, 195 Pakistani war criminals were allowed to go back to their country along with over 90,000 Prisoners of War who had surrendered to the India-Bangladesh Joint Command in Dhaka on December 16, 1971. However, those agreements have no relevance for the trial of Bangladeshi citizens who committed offences such as killing, looting, arson and repression of women.
There is some criticism with regard to the formation of the tribunal, the investigating agency and the prosecution team. Many people hold the view that some of them are not manned by competent people. Even Dr. Alauddin Ahmed, an adviser to the Prime Minister, questioned the integrity of the chief investigator, who, according to him, was an activist of the Jamaat. (Following this the government on May 3 ordered a probe into the credentials of Abdul Matin.) Such criticism apart, the trial, if it goes smoothly, will expose the sheer magnitude of one of the worst instances of massacre and mass rape in history, of which not many people are aware outside of Bangladesh.
As the unofficially compiled lists show, most of the suspected war criminals belong to the Jamaat-e-Islami which took up arms to defend Pakistan as collaborators of the Pakistan Army. The BNP and some Islamist groups also have leaders against whom charges of war crimes have been levelled. But the tribunal will prosecute only those against whom sufficient evidence is available.
Just after independence, an effort was on to put in place a process of accountability. The post-liberation government promulgated the Bangladesh Collaborators (Special Tribunals) Order in 1972. In July 1973, Parliament passed the International Crimes (Tribunal) Act to allow the prosecution of individuals for genocide, war crimes and crimes against humanity.
Around 37,000 people were jailed. An estimated 26,000 people were released when in November 1973 the government announced clemency for all except those charged with heinous crimes. Around 700 persons were convicted. But, in December 1975, following the assassination of Sheikh Mujib, all convicts and under-trial prisoners were released by the military ruler, Ziaur Rahman, who also annulled the Collaborators Act. Since then the issue had lain dormant. It resurfaced only when the Awami League, which led the Liberation War, first came to power in 1996.
In 1992, a national campaign was launched under the leadership of Jahanara Imam, writer and the mother of a liberation war martyr. This culminated in a mock public trial of war criminals in Dhaka. And as Ms. Khaleda Zia formally inducted Jamaat-e-Islami leaders into her Cabinet in 2001 and key Jamaat leaders dubbed the 1971 liberation war as a ‘civil war' just to undermine national independence, the issue got national attention. The Sector Commanders' Forum, led by the front commanders of the war, and the Nirmul Committee, a secular platform to try war criminals, as well as other ‘pro-liberation' organisations, spearheaded a campaign.
Although the trial has a strong moral rationale, it is no easy task. Politicians and lawyers supporting the BNP and the Jamaat have challenged the law under which the trial is on. But legal experts have rejected their pleas, saying that the law is broadly compatible with international standards.
This is no ordinary trial, but one that answers the inner-most urges of an aggrieved nation and addresses the travails of countless bereaved families, widows and orphans, those who were wounded and immobilised. The woman victims of atrocities have been conferred the honour of war heroine (‘Beerangana'). Therefore, the trial is a solemn unfinished task to remove a national stigma.
The trial will have obvious political implications. The irony is that those who committed the crimes as henchmen of the Pakistan Army in 1971 are now established political leaders, well-entrenched businessmen or highly connected Islamists, all of whom have their own agenda.
The Sheikh Hasina government will have to face up to a hard reality. The war criminals of 1971, many of whom left the country at the dawn of Independence but returned and were rehabilitated thanks to the military rulers, are now organised and powerful. They have strong political backers in the BNP.
The government understands the implications and the risks. The Prime Minister has urged the people to remain ‘alert and united' so that the process is not disrupted by ‘conspiracies'. She knows that the move will get meaningful support from the majority of the people. A confident Sheikh Hasina said: “We're not afraid of any plot by the defeated forces. Inshallah, we will complete the trial and free the nation from the stigma.”
As the trial process advances, the Jamaat has called upon its members to prepare for the ultimate sacrifice. Ali Ahsan Muhammad Mojaheed, its secretary general, claimed that India was instigating the government to go after the Jamaat. “India apprehends that only the military and the Jamaat can prevent Bangladesh from becoming a proxy for India.”
But Sheikh Hasina has remained brave, and has said her government would hold the long-overdue trial no matter what the Jamaat does. “It has been our national commitment, and we shall do it,” she asserted. Bangladesh, which recently ratified the Rome Statute that calls on countries to bring their own laws in line with international standards for the prosecution of individuals who commit crimes against humanity, has assured the world community that the trial process would go on and that it would conform to the highest standards.
It has been the considered view of the secular school of thought that if the trial process is withdrawn, or kept incomplete halfway through, under any compulsion or pretext, Bangladesh's ‘pro-liberation' politics will suffer a blow. Those who had opposed the country's independence and perpetrated the worst crimes against humanity on religious grounds, will be able to further consolidate themselves if the trial remains incomplete.
(The writer, based in Dhaka, is a Bangladesh liberation fighter himself.)