Crime, Punishment and Historic Non-Apologies

Nadeem Rahman takes a historical perspective of institutionalised criminality in the conduct of nations

The twentieth century witnessed a refreshing re-appraisal of the story of civilisation with commendable candour, and a rebirth of our collective conscience. In respect of the study of antiquity, or even the recent past, this is unprecedented. History has come into the public domain, and is no longer the exclusive preserve of entrenched historic bias. Happily, today, opinions abound, and a new genre of intrepid historians has emerged, while the venerable philosophy of history would appear to have embarked on a much needed spring cleaning, as a consequence of this momentous renaissance. In view of mankind's deplorable record, nothing could be more welcome. Crime and punishment on a grand scale, could now be painted in their true colours, and long overdue historic apologies petitioned without apprehension, which in the past, were unheard of, nor even dreamt of by jaded historians.

This can only be described as the humanisation of history. Ironically, where the human spirit has triumphed, the credit for this extraordinary phenomenon must accrue to technology, rather than the human touch, or faith in the ultimate ascent of man. Something as innocuous as the personal computer, with its stream of unfiltered information emanating from the farthest reaches of the globe, has infused every environment with its marvels, empowering the humblest intellect with a wealth of erudition that rivals the treasures of King Solomon. At last, the ancestral skeleton is out of the cupboard, and henceforth, history must bask, naked and unadorned, before the prying eyes of the mob, and the full glare of unsophisticated scrutiny. However, this "near-Utopian" state of mind, was not always the case ...

For those who subscribe to religion, all crimes are punished sooner or later, in this world or the hereafter. It's a comforting thought, especially for the downtrodden. This enshrined belief notwithstanding, as long as we continue to live in the land of the living, we really have no means to verify the full veracity of such a potent promise, not even by hearsay. We are obliged to trust the cryptic utterances of the prophets, and hope for the best. As of yet, no one has returned from the other side, to confirm that Hitler is in custody, pending trial, and bail has been denied. Regrettably, he is not alone in this category, and the list of history's rogues at large, those who have eluded the judgement of their peers in their lifetime, is endless. Their ranks far outnumber the saints and the saviours. However earnestly we believe in divine deliverance, for the victims of cruel fate, justice is a long wait. In the meantime, prayer is an excellent consolation prize.

The criminal instinct is primordial, but jurisprudence is not. In spite of this gaping flaw in the human genome, the feeble genius of the species has worked wonders, to instil in the heart of humanity, a reluctant, but, necessary sense of guilt. Contrary to conventional wisdom, guilt is not a natural consequence of criminal conduct, but greed and violent means are indeed a preamble to this condition. A sense of guilt is an acquired taste, like a rare delicacy, cultivated over generations. Appropriately, different peoples feel guilty about different things in different cultures at different times. Thus, the benchmark for good and evil is variable.

History is replete with examples of the contradictions of morality. Even the Holy Books describe a host of vices and virtues totally alien to the norms of today, and modern concepts of right and wrong differ from society to society. Witness for example, the changing attitude toward the death sentence in some countries, but quite the opposite in others. The so-called debt to society is subject to the "civilising" influence of contemporary evolution, and the judicial institutions of the age. Once again, the Scriptures don't hesitate to get right to the point, in one short sweet sentence: "an eye for an eye".

The entire doctrine of "an eye for an eye" presents its own distinctive set of dilemmas. Be that as it may, civilisation hinges on the premise that evil is bad, and despite temporary delays, good always prevails. This naive but popular notion is the cornerstone of our perception of criminal justice, as it is practiced throughout the civilised world today. Without embarking on a philosophical debate, let us admit the symbolism of society's pound of flesh. Without the possibility of punishment, the forbidden fruit loses its lure, and guilt is no longer the delicacy of spiritual gourmets. This, presumably, is the test of life.

In the fog of war, and the haze of despicable horrors, how do we sooth the heart its outrage, and when the dust has settled, how do we judge our tormentors? This surely, is no less a test. Among those who survive, the victim is psychologically disoriented and in a state of emotional paralysis, too traumatised to express his agony, too emasculated to lodge a meaningful protest, while the dead of course, tell no tales. Swept away in a storm of pre-emptive legality, the prospects for even symbolic restitution seem remote. "In any war (or police action), there are no Nuremberg-type trials for the atrocities of victory." The defeated, stripped of dignity, are at the mercy of civilisation's collective civility.

In the context of war, war crimes, and the vindication of a just cause, Bangladesh is unique, because it won the war, but despite the euphoria, nearly four decades on, a victorious people continue to feel deprived of retribution. Why this should be, defies logic. The Bangali people have waited far too long for the answer to this question. All the pundits of geopolitical prophecy said this day would never come, but the liberation of Bengal came unequivocally. This was not a dubious documentary subject to intellectual inquiry and opinionated interpretation, such as the Tashkent Declaration, after the Indo-Pak war of 1965, nor an armistice, like the negotiated accord, that facilitated America's less than honourable exit from Vietnam. The birth of Bangladesh was front page history. That Bangali freedom fighters successfully hoisted the flag of freedom, is not a subject of debate. Yet, why is it that in their hearts, there is still the void of justice denied, and the harsh pain of open wounds without historic closure?

The answer rests in the soul of Bangali nationalism, and the shame of a nation divided. The demons of the past are once again at large, and who will cast the first stone, is the burning question of the day. The politicians can take a back seat. Since the first day of independence, no political entity took the initiative on the issue of war crimes, whether committed by an invading army, or traitorous fellow countrymen, collaborators as they are known. No political party can claim to have spearheaded this crisis of conscience, without the persistent and uncompromising goading of incensed and impatient citizenry. None have ventured their vested interest in abruptly abandoning the well established and continuing culture of impunity.

COURTESY OF M. ALAUDDIN MIA

The implications of serious accountability as a cardinal principle of governance, and the grim reality of handcuffing crime with punishment, whether it is applied to historic abuses, or immediate issues of corruption and grotesque aberrations of high office, are too much a threat to contemplate, for all concerned. This is tantamount to rewriting the unwritten rules of political survival. As usual, civil society is the champion, and throughout our tumultuous history, from the villages to the varsities, civil society has always borne the brunt of every reactionary counter-attack. As is only to be expected, politicians are the first to take the credit and the last to accept responsibility. But let them take the credit, if it means an end to the era of ambivalence in our history.

Two outstanding issues dominate the horizon of post-war Bangladesh: the lingering memory of morbid war crimes, and the provocative question of a convincing apology from the aggressors. On the matter of war crimes, at least those committed by errant Bangalis, it is within the jurisdiction of the laws of the country, and within the reach and scope of the Government of Bangladesh, to institute legal proceedings without any further or secondary consideration. Unlike the international war on terror, these are Bangladeshi citizens, on Bangladeshi soil, answerable to Bangladeshi law. This law, covering war crimes committed on Bangladesh territory, during the war of liberation, was enacted by Act of Parliament, as far back as 1973. There is no question of torture or coercion, and absolutely no need for the bizarre and brazenly illegal practice of rendition.

All the excuses for procrastination are exhausted, and the only dialogue that can now ensue, should be regarding the legal framework and administrative structure of the tribunals. The infrastructure required for conducting tenable trials of alleged war criminals by a competent authority, is a vast undertaking. There is a great deal of laborious detailed leg work involved, and who should bear the responsibility for this arduous task is of the utmost importance. Witnesses need to be protected and accounts verified meticulously. For this purpose, an independent war crime commission is imperative, with assured and adequate protection from political intimidation by revisionists or antagonists alike. This will require the financial and structural assistance, and if necessary, the active participation of appropriate international bodies such as the United Nations.

On the other hand, Bangladesh may decide to deal with it as a purely domestic issue, ruling out any external influence or intervention. In any event, absolute impartiality, responsible reliability, and strict adherence to due process, are essential in establishing credibility. Unlike the mock trials of America's civilian detainees by military courts in camera, every precaution should be taken to maintain transparency and the highest standards of legal procedure. Bangladesh has nothing to hide. Let this be the last chapter, a sad but just epilogue to the story of freedom, in a corner of South Asia.

The nation has waited a generation to witness the trial of the killers of the Father of the Nation. Some may protest that title, but whatever you call him, it was nevertheless a murder. Some will say, it was for the greater good, but it was still a murder. Some will contend, he brought it on himself, but it will always remain a brutal killing. The proclamation of any number of Indemnity Ordinances, citing all the laws and all the statutes trumped up by all the unconstitutional parliaments, will not wash away the blood. This capital crime, unpunished for so long, not even acknowledged as a crime for so long, was the genesis of the jealously guarded convention of guaranteed impunity. That practice persists to this day, emboldening every common criminal affiliated to political bodies with blanket protection, and elevating ordinary hoodlums to the level of gangster-laureate to the government. After this, no crime could conscionably be punished.

The nation cannot wait another generation or two, until such time as no witnesses are left, to recount firsthand, the atrocities of '71, in order simply to muster the political will, to legally purge Bangali society of the "infidels" of Bangali nationhood. Some have long fled to foreign shores, where they have sought the protection of their host country. The repatriation of wanted criminals by third world countries like Bangladesh, are generally denied or at best frowned upon, on the grounds of lack of extradition treaties, or our alleged barbaric human rights record. But a blind eye is invariably turned to the bold abduction, and inevitable execution of fugitive Nazis, by Israel, and prosecution in Israeli courts are generally accepted as legal and justifiable, even though the state of Israel did not even exist, at the time these crimes were committed.

This is not to say that Nazi war criminals should be permitted to go free, but the standards of public international law should be applied uniformly to the entire international community. In the post-colonial era, the new republics of Africa and Asia can no longer stomach the absurd ethical acrobatics and supple double standards of Western political intellectualism. In recent memory, no Western democracy so much as raised an eyebrow, when the Kurdish leader Abdullah Ocalan was kidnapped and transported from Greece to Turkey from one NATO partner to another.

Back in Bangladesh, those criminals who could not or would not flee, found an umbrella of protection in regressive regimes, and empathy with the philosophy of intolerance by proxy fundamentalists within the political melee. Since the war, they have led relatively normal lives, and unlike their unsuspecting victims, died peacefully, in the bosom of their families, unrepentant to the bitter end. Such is the tragedy of our social dichotomy.

In spite of these contradictions, there is no hidden agenda in this national endeavour, and certainly no foreign hand at work, to diminish our worth, or isolate a new nation. This is neither a revolt against faith, nor indeed a departure from our traditional sphere of international relations. This is simply secular Bengal coming to terms with its past and the evil within. Needless to say, the so-called "spin doctors" will cast an ugly shadow on the integrity of our motives, and a handful of fear mongers have not hesitated to predict an ominous upheaval, even a bloody re-enactment of '71, but under no circumstances should this deter the path of justice. The long awaited trials are as relevant symbolically, as the instrument of surrender is indispensible historically.

The desire to bring to book the agents of one's enemies is not exclusive to Bangladesh. After the Second World War, no European nation that was once occupied by Germany, could quell the wave of public clamour for vindication, and "popular convictions" by impromptu trials and summary executions of suspected war criminals were rife, until formal legal proceedings were finally brought about, against literally thousands of Nazi sympathisers and collaborators. At the end of the day, as many as were tried, were given amnesty.

The most famous of Europe's wartime collaborators was perhaps Marshal Philippe Pétain, the head of the Vichy government of France. There were other traitorous celebrities also, such as Lord Haw-Haw, and the infamous Maurice Papon. A consummate survivor, he managed to elude judgement for more than fifty years, and still hold high office in the Fifth Republic under Charles de Gaul, whose protection and patronage he enjoyed despite of his tainted reputation. For lesser offenders, there was lastly, the practise of "national degradation," or public disgrace and loss of civil rights. Tens of thousands were subjected to this, the most lenient of all the punishments meted out.

With the exception of the Nuremberg trials, the lesser known European war crime trials are largely forgotten, but the crimes themselves remain vivid in European lore. Their memory are kept alive and passed on from generation to generation. The European Union notwithstanding, in which Germany's role is pivotal, VE Day is commemorated every year, with nationalistic pride and considerable military fanfare. In spite of this tendency to wallow in the glories of victory, Europe, and those countries dominated by populations of European decent, whether willingly or reluctantly, at long last accepted a measure of responsibility for the consequences of their actions, throughout the course of their covetous imprint on world history.

This would appear to have opened a minor floodgate, or at least an emotional sluice of historic apologies, for a variety of sins of the past.

In 1951, Chancellor Konrad Adenauer of Germany apologised to the Jewish people for the holocaust.

In 1988, the US Congress passed a law apologising to Japanese-Americans for their interment during World War II.

In 1990, the Soviet Union apologised for the murder of thousands of Polish prisoners of war, who were shot and buried in mass graves.

In 1992, President F. W. de Klerk apologised for apartheid in South Africa, which enabled five million white settlers to subjugate thirty million blacks in their own country.

In 1998, the Canadian government apologised to native Indians and Inuit for generations of oppression and abuse.

In 2008, the Australian Parliament apologised to the Aborigines for having "inflicted profound grief, suffering and loss."

There is no doubt, as in many historic denials, the most prominent of which would be Great Britain's non-apology for more than two hundred years of imperial rule in almost every nook and corner of the planet, and the appalling treatment of the natives of the continent of North and South America, by European settlers. Slavery of course, should be top of the list of shameful practise requiring the greatest of apologies. But slavery was also an institution in which every civilisation has indulged, without reservation. In the era of the rise of Western supremacy, it is difficult to decide who to blame, Arab slave traders, Africans who facilitated the capture of fellow Africans for a fee, European traffickers who transported them across the oceans, or simply the New World end user. The blame is more collective rather than specific. Perhaps all of mankind should apologise to every soul ever enslaved.

In fact, for such a heinous crime, apology is too weak and worthless a word. Nevertheless, the culture of apology is a welcome departure from the white-washing of history. In the words of Oscar Wilde, "There is no essential incongruity between crime and culture. We cannot re-write the whole of history for the purpose of gratifying our moral sense of what should be." Hopefully, history has embarked on a new epoch, and ours is truly the age of apology, yet Bangladesh awaits patiently for an appropriate and convincing act of atonement, on the part of those who tried their utmost to punish us.

Today, those whom we fought, who have consistently denied their hand in attempting genocide on a sweeping panoramic vista, have the audacity to send a half-baked emissary to deter us from our goal of proceeding with the war crime trials. "Now is not the right time," and, "It is too soon after the events," were the words of shameless advice. At least "after the events" would imply that something actually went wrong in 1971, and if "now is not the right time," then might we assume that there is presumably a right time, somewhere on the horizon? This simply adds insult to injury, but the only insult is to our intelligence and the injury of course, is the bone of our contention."

These are the people who abandoned their supporters, the gangs of armed irregulars, the misguided Bangali and Bihari ranks of "Razakars" and "Al Bader" and discarded them like a soiled glove. These are the same people, who today deny any complicity with their former accomplices, and refuse to accept a single citizen who had once opted for that hypocritical state-nation. They can boast neither the moral authority, nor the intellectual credibility, to sermonise on the subject of crime and punishment.

Besides, when Bangladeshis settle accounts between each other, it is purely a family matter. Whether we as Bangalis, choose to exercise mercy, or extract vengeance within acceptable norms of legality, from other fellow Bangalis, is entirely the nation's prerogative.

If and when we exceed the bounds of decency, only then, can our critics call foul.

The trial of foreign troops on the other hand, is not a domestic preserve. It presupposes the moral approval of world opinion, and the tacit consent of the powers that be. Bangladesh can be reasonably confident on both counts, but the problems that confront Bangladesh in this regard, are practical and logistical, rather than one of public relations, or questionable intent. The facts are already well documented. Nevertheless, under no circumstances can we expect a defeated army to co-operate with their antagonist, and simply hand over alleged war criminals who wear the same uniform. By now, a great many of these are either demised, or have slipped under the radar. Some, one imagines, might even have taken up arms with yet another army, under a new banner, in the mountains of the North West Frontier, fighting for an equally mercilessly cause.

With this in mind, so long as the West continues to pursue their assault on terror, their priority will always lie in sheltering a strategic ally, rather than expose their well deserved disgrace. Bangladesh, can thus, sadly look forward to little more than diplomatic lip service, by the international community, on this long outstanding issue. Let us accept reality, the world owes us nothing, and in respect of the war crime trials, we should also recall without ambiguity, without confused emotion or misplaced indignation, that the blame for this inexcusable delay, rests squarely on the shoulders of successive administrations and representative governments, of the People's Republic of Bangladesh. Why this should have been, will always remain a haunting enigma.

Lastly, there is the question of an adequate and meaningful apology. Can we reasonably expect a contrite confession and an unconditional acknowledgement of guilt, a God fearing seeking of absolution, by men who took such delight in their work? I think not, knowing what manner of men they are, who take pride in their warrior heritage, and particularly taking into account their propensity to pontificate, and the extraordinary ability to delude themselves into believing that they were fulfilling the will of Allah. In their eyes, exterminating Bangali "heathens" was as much a Muslim crusade, as it was a patriotic duty. Only in this light can one truly understand why "patriotism is the last refuge of the scoundrel." Pakistan Zindabad became synonymous with Allah-hu-Akbar, and Muslim Bangalis were only too happy to proclaim Joy Bangla, to spare the heavenly angels the confusion, regarding which side was on a "holy mission".

Lest we forget, women were raped, children slaughtered and entire villages reduced to cinder, by an army preaching Islam. These modern day crusaders haven't the slightest inkling of the dishonour they brought to their own inglorious crusade, let alone the desecration of once happy homes, and bleeding families, left in their dreadful wake. Whenever they admit to any excesses, it is always in the defence of Islam. To appease the conscience, and despite this pseudo-religious song and dance, they are as ignorant of morality, as their logic is devoid of ethics. It is difficult to fathom, whether they are more stupid than evil, or both.

No need to take our word for it, just read the Hamoodur Rahman Commission report. After the debacle, in December 1971, the government of Pakistan instituted the War Inquiry Commission, presided over by Chief Justice Hamoodur Rahman as its Chairman. Better known as the Hamoodur Rahman Commission, its purpose was to inquire into the causes of the defeat, and the role of the Pakistan Army in the break-up of Pakistan.

The report was classified and kept secret until it first appeared in an Indian journal, followed by a Pakistani newspaper, and finally made public in December 2000. The Commission was three years in the making, interviewed some three hundred witnesses, took countless hours of testimony from the highest civil and military personnel, and examined every relevant document including transcripts of communication between GHQ and the Eastern Command. The outcome

AMDADUL HUQ/DRIKNEWS

of the commission was a scathing indictment of the Pakistan army's military professionalism and the entire ruling establishment of the time. The fact that the report was unanimously ignored, is testament to Pakistan's tradition of impunity, the one thing it has in common with Bangladesh.

Nevertheless, the Hamoodur Rahman Commission is a landmark in South Asia, and a must for students of history. Its scope and depth are truly commendable, its conclusions irrefutable, and display a rare breed of integrity. Dhaka disputes the accounts of army provocation by unarmed Bangalis, the numbers of women molested and civilian dead, as recounted by the Pakistani authorities. Actual figures far exceed their modest estimates. Suffice it to say, that prior to the onslaught, in a meeting of the military high command, the former President of Pakistan Lt. Gen. Yahya Khan, is reported to have said, "Kill three million of them and the rest will eat out of your hands." Need we add more?

"Surrender" and "defeat" are words expunged from the lexicon of Pakistani nationalism.

So are loaded phrases like "crimes against humanity." Since all the principal players have successfully cheated justice, Bangladesh should not hold its breath, in anticipation of a miraculous change of heart. No well chosen words of remorse, however insincere, will be forthcoming, from the heirs to a nation's shame. And, what indeed is such a grudging apology worth, from a people who are now hell bent on dismantling their own country. The miseries of Pakistan today, are a fraction of the horrors unleashed by Pakistan in its hay days and no, this is not the curse of Bangladesh at work. There is no one left to blame. Neither Indian animosity, nor the "high treason" of belligerent Bengal, but the enemy within, is destroying Pakistan. All that arrogance wasted.

"Thank God Pakistan was saved," were the words of the first President of residual Pakistan, after army action in Bangladesh on 25th March 1971. If the current course of events continue, Pakistan may not be saved from its newest set of trials and tribulation, and dare I venture, that the "land of the pure" might change its flag and name and geography and Pakistan as we once knew it, will simply fade from the map of South Asia. In its present state of turmoil, Pakistan is in real danger of being reduced to an academic footnote, a monumental miscarriage of history, and those Muslim Bangalis and the selfless Mohajirs, the perennial refugees of Pakistan, who fought so courageously to create that ungrateful country, will weep in their graves, and wonder why they threw away their lives.

Years from now, it might dawn on staunch stalwarts of Pakistan, and die hard exponents of the principle of "a homeland for the Muslims," that Pakistan died the day the Lahore Resolution was tampered with, and a Confederation of Independent Muslim States was altered to mean a single state with power concentrated in the centre, divided by a hostile land mass -- the day that document was subsequently renamed the so-called Pakistan Resolution, the day only one national language was imposed, the day a substantial section of the population was arbitrarily denounced as non-Muslim. Pakistan died the day a majority party was denied its constitutional ascent to power, and above all, the day the first Pakistani was killed by his own army. Pakistan died at the hands of loyal Pakistanis.

But this is blood under the bridge, and despite everything, there is always hope in an unfolding, unwritten future. South Asia stands on the threshold of limitless possibilities. Bitter recriminations between estranged brothers achieve little, beyond ruffled feathers and a lingering bad taste. As the injured party, Bangladesh can afford to be high-minded and conciliatory, provided, for once, Pakistan face up to its outrageous misconduct, and acknowledge the clear distinction between right and wrong, by any standards. It may be too late to make amends, but in the aftermath of tragedy, there is valid psychological virtue in optimism. It is the nature of the human spirit.

"I come before you to offer myself to the judgement of the powers you represent, as one to bear sole responsibility for every political and military decision made and action taken by my people in the conduct of war." These were the words of the Emperor of Japan to General Douglas MacArthur, who was Supreme Commander of the Allied Forces in the Pacific in 1945. Completely oblivious to the importance and solemnity of apology in Japanese culture, in an act of supreme pettiness, the victorious commander rejected the proffered apology, with characteristic Occidental callousness. Nevertheless, the words of the contrite monarch resound with the forthrightness of true nobility. Unfortunately, there is no such noble soul in Pakistan, to personally accept the burden of guilt, or pronounce such an honourable penance.

AMDADUL HUQ/DRIKNEWS

Pakistan, trapped in the contradictions of its own conception, needs desperately to exorcise all the pent up paranoia and hostility, and the delusions of a missionary destiny. For decades, we have heard that there is "an international conspiracy" to destroy Pakistan. If this indeed is true, then Pakistanis have aided and abetted their own downfall. Pakistanis must accept, they are no more God's chosen people than the Israelites or racially superior Brahmins. If Pakistan is to survive, Pakistanis will have to re-evaluate their own convoluted vision of the past, present and the future. Pakistan must reinvent itself.

While sanguinary Bangladesh will sadly have to swallow the bitter pill, and accept the fact that war crimes by fellow Muslims of another breed will go unpunished, without apology or reparations. The division of assets will have to take place in another world, where Bangladesh will have to appeal to a higher court. Despite our profound disappointment, Bangladesh will willy-nilly survive. It is a test of our forbearance and fortitude, our resilience and resolve, to overcome every ugly bane, and embark on a challenging new journey, without menace from the ghosts of the past...

"...that these dead shall not have died in vain that this nation, under God, shall have a new birth of freedom..."

Nadeem Rahman is an author and a poet, his most recent work Politically Incorrect Poems is widely available.