This week, the judges of Bangladesh’s International Crimes Tribunal have issued yet more guilty verdicts against leaders of the Jamaat-e-Islami party for crimes committed during the country’s war of independence in 1971. Underscoring this energy are new prosecutions against foreign nationals of Bangladeshi origin who are effectively being tried in absentia.
As elections are on the horizon for Bangladesh, it is no surprise then that the government is keen to expedite this process quickly. The question is, at what cost to justice and national unity?
Supporters claim the trials will provide some closure for the victims and their families who were killed or tortured by the Pakistani Army, and groups aiding them in their war crimes. However, instead of healing the young nation’s wounds, this process, dogged by one scandal after another, has instead deepened divisions in Bangladesh. The country’s foundation and very identity is now being hotly debated.
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Holding these trials were not among the principal election pledges of the ruling Awami League when it was swept to power in a landslide in 2008. However, shortly after coming to office, the Awami League led coalition began a process of reviving old and defunct laws and in particular the War Crimes Tribunal Act 1973.
The prosecution of war crimes was then abandoned by the first Awami League government and by the father of the current prime minister, Sheikh Mujibur Rahman. Successive governments, including those under the Awami League, had not deemed it necessary to revisit this.
Nevertheless, the current government’s decision to revisit the issue of war crimes is popular particularly with younger Bangladeshis. The Awami League has been politically savvy by courting a new generation that was not affected by the war of Independence.
Beginning in the early 1990s pro-Awami League activists campaigned energetically to try suspected war criminals. However, these activists sough retribution rather than truth and ending impunity. The goal of healing wounds never stood a chance. To understand why, we need to look back at Bangladesh’s short history in its entirety.
While it is a fact that the Bangladesh’s war of independence was bloody, what is missing in the prevailing narrative is that hands of both sides are equally responsible for the violence. As a case in point, Sharmila Bose, an Oxford academic of Indian origin with historic ties with the Bangladesh’s war of independence, provides vivid accounts of terrible acts of mass murder committed against the Biharis, people who came to settle in Bangladesh following India-Pakistan partition in 1947.
In the popular narrative, we hear no mention of these massacres despite evidence to suggest that the massacres committed against the pro-Pakistan, non-Bengali speaking residents of then East Pakistan may have been much greater than those committed by the Pakistani Army and their allied paramilitary and militia groups.
The painful memories of injustice, on all sides, were one of the many foundations on which this country was built. Those who opposed the war of independence in 1971 largely maintained silence on this issue perhaps because they feared greater hostility towards them, hoping that silence means the issue will die down. Whatever the reason may be, their silence has deprived a whole new generation to grow up learning only one side of the story.
Others acknowledge this period, but have successfully transitioned to focusing on the future problems of the country. While at the other end of the spectrum, there are those who use the liberation as political, social and cultural capital, creating a narrative which at best is incomplete and at worst is an outright manipulation of truth.
The trials therefore are crucial to the very identity of Bangladesh: whomever wins this argument may well get to settle the foundational story of this country. The goal therefore is not justice, but victory at any cost.
The Accused and the misused
The tribunals, which are constituted under Bangladeshi domestic legislation with no connection or reference to any international institutions, are not empowered as a matter of law to try crimes committed by the pro-liberation force. This is a major violation of the principle of justice and clear evidence, some would argue, of the political motives behind the on going trials.
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All those accused belong to opposition parties, and they are primarily affiliated with Bangladesh’s largest Islamic political party, Jamaat-e-Islami.
If all the prosecutions were to end in successful outcomes, as seems to be the case, with death and life sentences handed down, then the Jamaat-e-Islami would be left without its top leadership.
The suspicion that the trials are politically motivated and perhaps the reason why the Jamaat feel so aggrieved may be the result of a reality that is not in the public debate.
In 1971, the Jamaat was a small and insignificant political party that struggled to file candidates in elections. Jamaat-e-Islami was an insignificant political force in any part of Pakistan.
However, in the aftermath of Independence and particularly after 1978, the Jamaat made significant inroads in Bangladesh’s politics. Yet today, while they have increased their national profile in academia, business and political life, and have build up a formidable activists base, they still are a small political force in the Bangladesh’s wider landscape. This was evidenced in the last election when the party scraped a mere two seats in parliament.
Some, therefore, asks why then is the Jamaat being exclusively made to face the brunt of this tribunal when leading political actors that had much more power and authority in 1971, such as the Pakistani Army, are effectively being spared.
The Bangladesh Government has not helped themselves either in drafting the legislation, appointing prosecutors, investigators and the judges to the Tribunal. The legislative framework underpinning the Tribunal and the entire process is marred with deficiencies, imprecision and imperfection.
The International Bar Association and many international organisations have raised serious concerns about the legal standards of the court. They are clear that the accused will not be able to defend them effectively. The Defence team has repeatedly asked for clarity of the elements which prosecution must prove in order to find those accused guilty and the Tribunal has been hesitant in being clear and specific on this question.
There are also serious question on the institutional barriers placed on the Defence team which impacted on their ability to prepare their clients’ cases.
Concerns have been raised about the Defence teams being deprived of sufficient time to study the materials presented in evidence. Moreover the number of witnesses the Defence team can call to put their client’s defence were arbitrarily limited to a ridiculously small numbers.
No consideration was given on the relevance of proposed witnesses, which is a precondition for a fair and just trial. Only if a proposed witness has no hope of providing any relevant and useful evidence can one exclude such individuals. As an example, the most high profile figure convicted to date is the former leader Gulam Azam who has been found guilty and sentenced to 90 years in prison. He is accused to have been the mastermind with command responsibility. The Tribunal restricted his defence team so much so that he was only able to produce on live witnesses.
There is also the allegation of state complicity in preventing witnesses from giving evidence even when such witnesses were ordered to attend by the tribunal. The most outrageous and reported such interference is that of Sukranjan Bali. Writing for Al Jazeera, a Bangladesh based British journalist provides telling account of disgraceful collusion by the state to unlawfully capture Bali from the gates of the tribunal from the custody of his lawyers, then deny arresting him and then push him out of the border into India where he is now in anguish in prison.
And as if trying Jamaat leaders in Bangladesh are not sufficient, the prosecutors also instigated proceedings against two prominent Bangladeshis based in the UK and the USA. In the case of the UK based Chowdhury Mueenuddin, a dual British-Bangladeshi citizen, the government has begun the process against him. Like all the accused, Mueenuddin has denied these allegations and has maintained that he will not get a fair hearing under the current tribunals.
While the tribunal is keen to try him, no proper and formal steps appear to have been taken by the Bangladesh government to seek his extradition. Again, the Awami League government seems to be more interested in newspaper headlines of victory than actual justice.
Perhaps it is understandable, given that there would probably be a fiercely contested legal battle that is unlikely to favour the Bangladeshi government. One wonders, why then bring about proceedings against someone who is unlikely to be attending the proceedings and Government is unlikely to be able to secure his presence. The answer would appear to be resting in the political dynamic of Bangladesh and in symbolism.
It would appear to any objective observer that the Bangladeshi tribunal is not settling an old wound to bring closure, rather reigniting old wounds, creating new ones leaving a lasting legacy of division, conflict and grievance that divides the Bangladeshi nation thereby impeding and even unmaking the progress made by Bangladesh. Such division is evident in the death, injury and imprisonment of hundreds and thousands who felt aggrieved and have taken to the streets to protest.
Even this week whilst writing this article, it is reported that at least 10 people were killed across the country in clashes between opposition activists protesting against the latest decisions of the tribunal and the police and other law enforcing authorities as well as armed activists of the ruling party.
Ultimately, for a significant part of Bangladesh’s political classes, this process will be viewed as a tragic and mindless act of political persecution through gross abuse of state authority. The evidence presented before court hardly merits bringing about a charge. But to find these men guilty of crimes against humanity based on hearsay, fallacy and witness statement of party cadres is an ultimate act of injustice which, given the formidable political organisation of those accused, will further enhance the mistrust, division and deep hatred for one another that exist in Bangladesh. The pain of Bangladesh is thus set to continue.
Talha Ahmad is a lawyer and co-founder of the human rights campaign group, Desh Rights
You can follow Talha on twitter @talha_jamil