Perceived injustice in the trials of Pakistan's collaborators in the 1971 civil war has plunged Bangladesh into a deep political crisis in which the normal business of the country has been shut down for days and thousands of its citizens have been killed, maimed for life, or injured over the past few weeks. Here I analyze the controversial trials that triggered this crisis and suggest a reasonable way out.
Crux of the Crisis
For weeks now the International Crimes Tribunals (ICTs) in Bangladesh have been doling out death/life sentences to Islamic opposition leaders for "crimes against humanity" in what has been improperly called "war crimes" trials.
Controversial from the very start, these trials have triggered waves of protests throughout the country, which the ruling Awami League (AL) regime have been barring and/or crushing through police brutality and a massive media campaign of dehumanization or symbolic manslaughter.
In a third verdict given on February 28, 2013, the ICT-1 sentenced Maulana Delwar Hossain Sayeedi to death, intensifying civil disobedience, country hartals, and riots throughout the country.
Frustrated at the illogical verdict and out of a deep sense of moral hurt, millions of men, women, and children came out in force to demonstrate in the streets, defying the indiscriminate shootings and beatings by the police, RAB (rapid action battalion, an armed forces unit), and the armed gangs of the ruling party.
In five days since the Sayeedi verdict, the state forces and the ruling party gangs have killed more than 100 and maimed/jailed many thousands of members of BJI and its student wing Islami Chhattra Shibir (ICS) most without trials. The killed and injured include quite a few women and children.
Sayeedi is one of the most charismatic Islamic orators in Bangladesh. He is also naib-e-amir (vice president) of Bangladesh Jamaat-e-Islami (BJI), an Islamic political movement in the country. Not even a single criminal complaint has been filed against him over 40 years since the 1971 civil war that led to the independence of Bangladesh. Yet, the ICT-1 sentenced him to death, validating concerns of his fans that his trial has been nothing but a judicial theater for political murder.
The hartals triggered by the verdict has eclipsed the Shahbag movement-daily gatherings of AL loyalists and leftist groups posing as new generation activists at an intersection of Dhaka for several weeks-that erupted as a strategic charm offensive of the government in its rhetorical campaign. Those who joined these gatherings have chanted the AL party-line fascist slogans demanding execution of the accused, receiving government protection and hospitality.
The Sayeedi verdict was predictable, as revealed in the Skype scandal in which Justice Nizamul Haque Nasim, who led the tribunal trying Sayeedi and who was exposed as colluding with the ruling party officials and receiving the draft verdicts of the trials from Ahmed Ziauddin, a Brussels-based lobbyist, weeks before the hearings were to be concluded.
In the Skype conversation with Ziauddin, Justice Nasim revealed that the case against Sayeedi had no merit, and yet after his resignation due to the scandal, another justice filled in his position and the tribunal announced the same verdict as the one apparently drafted by Ziauddin for Justice Nasim.
Travesty of Justice
The Sayeedi death verdict has proven beyond a reasonable doubt that the ICTs are kangaroo courts. They represent a complete travesty of justice. This is my assessment of the above ICTs from the perspective of pure justice. Like Malcolm X, "I'm for truth, no matter who tells it. I'm for justice, no matter who it's for or against."
"There is a heaven-and-earth difference, a day-and-night difference" between the standards of justice between the current ICTs of Bangladesh and the international criminal tribunals, according to T. H. Khan, the Bangladeshi justice who served on International Criminal Tribunal for Rwanda (ICTR).
The ICTs represent a travesty of justice for the following reasons:
First, the ICTs in Bangladesh are not "international" at all. As Khan said, there is nothing international in these tribunals except the word 'international.' They are trying citizens of Bangladesh, not internationals; there is no international justice appointed to the tribunals; and international lawyers are barred from assisting the defense.
Second, these ICTs are historically absurd, and the government doesn't really have a case for war crimes now, according to Khandaker Mahbub Hossain, the Chief Public Prosecutor of Bangladesh for the trial of war criminals and collaborators during the 1972-75 rule of Sheikh Mujib and currently president of the Supreme Court Bar Association in Dhaka.
During 1972‐1975 and 1996‐2001, the ruling AL government didn't raise any allegations of war crimes against those they have accused today. In 1973, based on the International Crimes (Tribunals) Act of 1973 (ICTA), the ICTs tried and found 195 Pakistani soldiers guilty of war crimes, but the government released them as part of a 1974 agreement with Pakistan and India.
Separately, the AL government convicted 752 of some 100,000 native collaborators of the Pakistani army, and none of those convicts were the BJI leaders. But on 16 December 1973, Sheikh Mujib pardoned all collaborators with a few exceptions to unite the nation.
In 1971, the top collaborators like Khawja Khairuddin, Fazlul Quader Chowdhury, Abdus Sabur Khan, and Shah Azizur Rahman were leaders of the Muslim League, not of BJI, which was a tiny party at the time with a few hundred active members. Khairuddin, for example, was the convener of the Razakars, a paramilitary force that aided the Pakistani army. Sheikh Mujib restored his citizenship, which was revoked earlier, and sent him to as an envoy to Islamabad to negotiate normalization of Bangladesh's relations with Pakistan.
In fact, during the 1980s, all three parties collaborated to work for restoring democracy and in the early 1990s, the AL worked with the BJI leaders to establish the caretaker government to oversee elections against the wishes of the then ruling BNP.
Third, the statute (ICTA) that formed the ICTs has corrupted the principle of procedural justice, i.e., the fairness of the processes leading to outcomes. According to John Rawls' theory of justice, once procedural justice is ensured, both distributive justice (fairness in the distribution of rights or resources) and retributive justice (fairness in the punishment of wrongs) can be achieved.
According to several academic studies, the ICTA has subverted procedural justice by denying the accused the right to question biases in the appointment of judges of the ICTs. Pro-AL judges or those with backgrounds of anti-BJI political activism like Justice Nizamul Haque Nasim have been appointed to the tribunals. In the U.S. or any fair justice system, they would not be allowed to serve even as members of a jury.
Fourth, the ICTs deny the accused the fundamental rights guaranteed in the constitution of Bangladesh, according to international lawyers like Toby Codman and Stephen Kay who have studied the statute. ICTA bars the accused from challenging unconstitutional laws. According to the Constitution, however, the state or the parliament cannot enact any law that is inconsistent with the fundamental rights guaranteed for citizens. It categorically states that "any law so made shall to the extent of such inconsistencies be void" [Article 26(2)], unless vetted by a referendum.
Fifth, the ICTA has also taken away the right of the accused against retroactive application of the law. Following the life sentence given to Abdul Quader Molla, the government retroactively changed the statute of the trials again to empower the prosecution to appeal against the sentence. Human Rights Watch has termed this retroactive legislation "a mockery of justice."
Sixth, ICTA has outlawed the fundamental rules of evidence in the trials, suspending the application of the Evidence Act (1872) as well as its innocent-until-proven-guilty provision and allowing the use of hearsay and newspaper reports (not admissible in the international courts) as evidence.
As a result, we noticed that most of the pro-prosecution witness accounts were hearsay. The prosecutor in the Sayeedi case produced the bulk of its witness narratives without producing the witnesses for cross-examination in front of the tribunals. When prosecution witnesses declined to give testimonies following the given scripts, they were barred from appearing in the courts.
In the Sayeedi case, for example, on November 5, 2012, the plain clothes security officials picked up Shukh Rranjan Bali, a key defense witness from the entrance to the courts, and his family hasn't since found him or heard from him. This disappearance and other forms of intimidation of witnesses fit the pattern of goom (disappearance) or killing of opposition politicians and journalists during the current AL rule.
Several times during the proceedings the tribunal judges asked the prosecution to rework and resubmit their dossiers, which they found to be too faulty to make a case. This signifies that these judges are also serving as the consultant attorneys for the prosecution. On the other hand, they have dismissed many legitimate defense petitions or prayers little justification.
In a blatant show of double standards, the prosecutors have filed cases in the ICTs against collaborators that belong to the opposition parties and not against those that belong to the ruling party. Dozens of the AL leaders including two current ministers were collaborators of the Pakistan army, as well.
Furthermore, the ICTs are not targeting those who committed war crimes against the West Pakistani civilians during the war in 1971. Drawing on case studies, Sarmila Bose concludes in her non-partisan account, "Dead Reckoning: Memories of the 1971 Bangladesh War" (2011, p. 180), that "tens of thousands" of Bihari/Urdu speaking civilians were killed by Bangladeshi mobs and freedom fighters during the war.
In the cases of Bosnia and Rwanda, criminals from both sides of the conflict have been brought to face justice. In Bangladesh's case, however, the ICTA has precluded any trial of the Bangladeshi offenders. While the majority of the victims were Bangladeshis, this preclusion doesn't fit the international norms of justice.
The Way Out
By staging the trials of selected trials of collaborators who belong to the opposition parties, the ruling party in Bangladesh has divided the country along political battle lines. This is unfortunate, and this shows how visionary Sheikh Mujib was, as he pardoned the collaborators (the main leaders of who were Muslim league and many of whom were from Awami League) in order to heal and build a new nation.
As Journalist Mahfuzullah stated in the recent TV talk show in the Bangladesh, the rulers now have two ways to diffuse the crisis and restore calm in the country. The first is to get the United Nations involved in ensuring fair trials of all collaborators including those within their own ranks. Selective trials of the opposition will only intensify the conflict.
The second way is to redo what Sheikh Mujib had already done during 1972-75, which was to forgive all, forget, and move on with nation-building.
In my view, either option is fine. If justice is to be pursued, fairness of the process must be ensured. But sensing that in a fair court system the ruling AL would not be able to get the kind of political victory it wants, it has created the ICTs for show trials.
To ensure fairness of justice, the international bodies like the Amnesty International, Human Right Watch, and International Center for Transitional Justice have denounced the practices of the ICTs. Now is the time for international governments, members of civil society, and citizens of the world to speak up and be counted.
Dr. Martin Luther King said, "Injustice anywhere is a threat to justice everywhere," and Rabindranath Tagore wrote, "Your hatred should burn like hay fire those who inflict injustice and those who tolerate it."
Imagine what will happen should we fail to end the monstrous injustice being doled out by the kangaroo courts in Bangladesh today. This injustice will take the country on a path to civil war, creating fresh wounds and problems. We have seen premonitions of such a civil war in the bloody dialectic of government repression and hartals, between government-led genocide and retaliatory violence in Bangladesh.
Mohammad Auwal, professor in the Department of Communication Studies at California State University, Los Angeles served as a Civil Service official in Bangladesh before moving to the U.S. in the early 1990s.
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