'Frozen in Time?'

Bina D'costa delves into the feasibility of holding war crimes trials in Bangladesh

"Justice must not only be done, but must be seen to be done".

The Pakistani newspaper Dawn reported, on May 14, 2009 that the Foreign Ministry (of Pakistan) "rejected Bangladesh's demand for an apology over the alleged (emphasis added) 1971 atrocities." The official response was that Bangladesh should not be "frozen in time" but rather move ahead. Pakistan advised that Bangladesh should "let bygones be bygones" and hoped that the relations between the two countries would not become hostage to the past. Pakistani mainstream scholars in their analyses usually describe the traumatic narrative of 1971 as a "debacle" and the media as an "incident" or a "disaster." However, genocide scholars across the world widely accept that in its intent to destroy an ethnic group, in the systematic and strategic use of rape and through the selected and targeted killings of a religious minority (Hindus) and intellectuals, the 1971 war is indeed a case of genocide.

The most recent tension arose from the Bangladesh Parliament's adoption of a resolution in early 2009 to try the war criminals under the International Crimes (Tribunals) Act 1973 (adopted on December 3). While the Office of the High Commissioner for Human Rights has not offered any formal support, the UNDP local office (United Nations Development Program) has announced that it would assist Bangladesh in designing and setting up a war crimes tribunal. Renata Lok Dessallien, the head of UNDP in Bangladesh stated, "we have suggested the names of some top international experts who have experience in how war crimes tribunals operate across the globe."

The genesis of Bangladesh as a sovereign entity in December 1971 is celebrated as a victory of a secular identity that went beyond any religion. In this write-up, I will focus specifically on the most recent justice-seeking movement in Bangladesh that brought the issue of redressing war crimes to the forefront of the political and security agenda.

History
Bangladesh's experience with colonial rule began in 1757. As an outcome of political decisions when the British finally decided to depart from the Indian subcontinent, the eastern part of Bengal became East Pakistan in 1947. The traumatic upheaval of India's Partition forced the migration of ordinary Hindus, Muslims and Sikhs due to the fact that the two-nation theory (Pakistan for Muslims and India for Hindus) resulted in the splitting up of centuries of bonding and kinship. However, religion alone wasn't sufficient to tie the East and West Pakistan as a nation, since their relationship replicated a colony's asymmetrical association with the coloniser. The language movement of 1952 that defended Bengali as the national/official language of East Pakistan (as opposed to Urdu which was imposed by the West Pakistani rulers) culminated in a national movement for an autonomous identity in the late sixties. Further, the prejudices of the West Pakistani regime that were reflected in the economic and political disparities between the two parts of Pakistan provided an impetus for a full blown national movement in late sixties. The military regime of Yahya had no sympathy for the "peoples' power." It attempted to brutally crush the dissent on March 24, 1971 (codenamed "Operation Searchlight") thus sparking off the Bangladesh Liberation War that became a full-blown India-Pakistan war in December .

Munir Uz Zaman/Driknews

Violence during the conflict
There were 80,000 Pakistani soldiers deployed under the Eastern Command. These forces were augmented by an additional para-militia force of 25,000, a civil armed force of 25,000 and another auxiliary para-military force of ethnic Bengalis (Razakars, al-Badr and al-Shams) of 50,000 . For most of the conflict, these forces fought guerrilla style warfare against the East Pakistanis whose strength is estimated to be 175,000, including a large number of personnel who deserted the East Pakistan Rifles, East Bengal Regiment and the Bengali Police force. The East Pakistani pro-liberation forces were jointly called the Muktibahini (Freedom Force), which formed the Bangladesh Forces Command and was led by Gen. M. A. G. Osmani. This was divided into 11 sectors, and Bengali officers who had defected from the Pakistani armed force served as the commanders of each sector. Finally, in December there was an additional 250,000 Indian Allied Forces (Mitrobahini) that led the offensive against Pakistan. The Eastern Command of Pakistan under Lieutenant General A.A.K. Niazi surrendered to the India-Bangladesh joint command led by Lt. Gen. Jagjit Singh Aurora (the Commander of the Indian Allied Forces) on 16 December, 1971.

The Pakistani forces were perceived by the overwhelming majority of Bangladeshis who supported liberation as "occupation forces," and India's intervention to end the conflict was welcomed. Pakistan also attracted global condemnation because of its brutal army crackdown in 1971 that resulted in mass atrocities and genocide. Estimates vary but the widely accepted figure in Bangladesh is that between 1 to 3 million people perished during the nine months of conflict, and a further 8 to 10 million were forced to leave their homeland. Also, 200,000 women were reportedly victims of rape and sexual violence, with 25,000 rapes resulting in forced impregnation. A white paper issued by the Pakistani government also noted that at least 30,000 Biharis and West Pakistanis were killed as a result of the national movement and the conflict. While none of these are independent sources, the established fact is horrific violence accompanied the 1971 war.

War crimes movement--why now?
India and Pakistan signed the Simla Pact in 1972 and India, following a series of meetings with both Pakistan and Bangladesh, agreed to return the 93,000 PoWs to Pakistan. In the aftermath of the conflict, the new state of Bangladesh was pre-occupied in gaining both global recognition and foreign aid especially from the Middle East, US and China, which paved the way for recognition from Pakistan. In exchange for recognition from Pakistan and more importantly perhaps for return of assets Bangladesh's new leaders agreed not to prosecute the PoWs, except for 195 prisoners who were accused of war crimes, crimes against humanity and genocide.

Bangladesh's chaotic history following 1971, rife with political assassinations, authoritarian military regimes, structural violence and problems of governance (especially corruption, nepotism, police and political violence, and religious extremism) pushed the justice agenda under the rug. Following some hope of democratisation in 1990, the demand for the trial of war criminals has increased.

Justice advocacy groups such as the Nirmul Committee and Muktijuddo Jadughor were critical as both have played major roles, the former in setting up the Peoples' Tribunal in 1992 and the latter in sustaining public interest in the issue. The Peoples' Tribunal, which had no real authority in law, staged some mock public trials. While it was not overtly successful, especially in terms of gender justice, it managed to construct a strong symbolic meaning to the justice agenda. This justice-seeking movement (the continuing activism and advocacy) framed by various civil society groups also generated sustained (if not always thriving) demand for the prosecution of the war criminals. This movement draws upon the networking and knowledge from both human rights and women's movements.

Three important factors contributed to the intensification of the current justice-seeking movement. Firstly, following the declaration of the state of emergency by the president and the military "takeover" behind the scenes in 2007, civil society groups have intensified their demands for the trial of war criminals. They had a lot of space to operate in a period when partisan political activities were formally prohibited, and also gained a lot of airtime from a sympathetic media. It was perceived that the interim military-backed government would be more sympathetic to the justice-seeking movement, especially, as the then Army Chief himself called for war crimes trials. This strategic framing gained momentum when the Sector Commanders Forum (SCF, a platform of the war veterans of 1971, led by the Commanders, all military personnel) publicly pressed the interim regime for prosecution of the war criminals.

Secondly, the normative values attached to the voter awareness campaigns by various agencies and civil society in 2008 heavily focused on democratisation and justice mechanisms and approach, contributing to the Awami League's pledge to address the war crimes issue if they returned to power. Some noteworthy steps were the voter education program funded by the UNDP; media activism highlighting the justice movement; advocacy by international human rights watchdogs such as the Amnesty International; and a strong interest in a just and fair election shown by Bangladeshis generated both outside and inside the country.

Finally, important factions of the armed forces led by the then Chief of Staff General Moeen U. Ahmed supported the move to advance with the war crimes trial. It was reported in the media that he approached US and Pakistan to provide crucial documents to support the trial.

Recent war crimes demands in Bangladesh have been somewhat blinkered and inward-looking. The interest groups are primarily interested in prosecuting the most infamous collaborators of the Pakistani army, who are Bangladeshi nationals or Bangalis. In addition, there is the age-old tension between religious and secular nationalist politics of the 1971 war, which has not been sufficiently addressed. While the justice-seeking movement attracts a more moderate religious populace, if not always secular, in many instances it also directly confronts the Islamic factions of domestic political space. For example, Jama'at-e-Islami, a key party in the BNP-led (Bangladesh Nationalist Party) four-party alliance that was in office till 2006, has been publicly nervous about the recent movement as some of its central members would be likely to face war crimes charges.

Pakistan-Bangladesh relationship
Pakistan is watching this recent move in Bangladesh cautiously. Bangladesh has raised the question of individual and collective accountability of the Pakistani state in both formal and informal meetings. It has stated that it is imperative for Pakistan to apologise for the genocide/mass atrocities in 1971, share assets and also repatriate the Biharis ("stranded Pakistanis") who remain in various camps in Bangladesh. Abdul Basit, the spokesperson of the Foreign Affairs Ministry stated at a weekly media briefing that "as far as Pakistan is concerned, this matter stands resolved under the April 9, 1974, tripartite agreement." Under the 1974 agreement, Pakistan had stated "regrets", but did not offer any formal apology. The former president Pervez Musharraf had also expressed "regrets" over the 1971 "excesses" during his visit to Bangladesh in 2002. Some civil society groups in Pakistan, especially the human rights and women's rights activists on various occasions have offered public apologies.

AMDADUL HUQ/DRIKNEWS

The Pakistani state refuses to offer a formal apology, even as a symbolic gesture. For Pakistan this is a distraction creeping up from its past, during the present period when it is facing insurmountable internal problems and is on the verge of a state "failure." It could however be argued that the Pakistani political and military elite's continued denials of grave injustices committed against its own citizens in the "recent past" entrenched deep injustice as a legacy that is now intrinsic in its political culture of inequality and inequity. This is reflected in Balochistan and Sind; in widespread militarisation of the society; and in gradual extremism that generated a devastating impact on the everyday lives of ordinary people of Pakistan.

While the trauma of 1971 evokes profound emotions, Bangladesh must also strategically respond to these internal turmoils, especially of the traumatic experiences of ordinary citizens and displaced population in Pakistan. Pakistan's official position must be considered separately from public opinion. Establishing a civil society network that reaches across the bitter historical divide and promoting strategic dialogues about how to meaningfully deal with the past, would be a good step forward.

The future
There are of course some serious challenges ahead. Some of these are briefly noted here, along with opportunities for future reconciliation. Firstly, the Bangladesh government and the civil society must respond to the domestic opposition arguing that the justice-seeking movement and official actions are counter-productive, especially claims that these are political stunts to shift attention from important issues such as the economic slump, price hike and other issues. Secondly, the time gap between when the war crimes took place and the proposed establishment of a civil and temporary tribunal may have given the defendants time to destroy crucial evidence. Thirdly, relating to the second point, some of the most daunting challenges are logistical. If the war crimes trial is to succeed, an Enquiry Commission must be formed first. This commission must investigate, gather evidence, and identify and recommend the arrest of some of the most senior and infamous war criminals first. The proposed commission must consider the possibilities of a truth and reconciliation commission (TRC) that could allow not only Bangladeshi citizens (within and outside Bangladesh), but also both Indian and Pakistani citizens (and others) who have direct experiences of the 1971 war to provide testimonies and crucial evidence. The experiences of other states dealing with war crimes have demonstrated that without a simultaneous reconciliation mechanism, a war crimes trial in Bangladesh in itself would not be effective.

Finally, relating to the third point, the finances of the proposed trial must be sorted out. The media has reported that following the demand of the Law Ministry, the Bangladesh Cabinet has approved 10 crore taka (approximately US $1.5 million) for this trial. This budget is not going to satisfactorily compensate the costs relating even to the domestic judicial process. It is also not clear if this budget includes funding for detention facilities/logistics, investigations, translations, or defence counsel. The proposed Bangladeshi war crimes trial is still a domestic process. The government has made it clear that the tribunal would be set up under the 1973

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Act.

There will probably never be ad hoc tribunals such as the ICTY (International Criminal Tribunal for the former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda), which proved to be hugely expensive with each having annual budgets of more than US$100 million. The ICC (International Criminal Court) will take over such processes, and similar to the ICTY and ICTR will try individuals, but not states.

In recent years, shared international-domestic legal mechanism such as a hybrid tribunal has gained some attractiveness. Various models have been tried in East Timor, Cambodia and Sierra Leone. The budget for East Timor's hybrid process was US $6.3 million, with $6 million allotted to the prosecution unit and the remainder almost entirely to salaries for international judge. The cost of the Cambodian tribunal (the Extraordinary Chambers in the Courts of Cambodia, ECCC) was originally US$53 million for three years, and it has blown up to $170 million for five years. The Special Court for Sierra Leone's (SCSL) original budget was estimated at US $22 million for its first year of operation, compared to the ICTY and ICTR whose annual budgets each exceed $90 million. Now, the SCSL's bill for 2008-10 is $68.4m, and it has recently turned to the US and countries in the Middle East for the $30m not yet secured.

The War Crimes Chamber of the Court of Bosnia and Herzegovina is technically a domestic institution, although it has significant international donor support. Similar tribunals have also been established in Croatia and Serbia. Currently, there are 47 judges who are serving on the Court of Bosnia and Herzegovina. Fifteen of them are international judges who are directly funded by the international donors who contributed to approximately EUR 20 million in 2006. The Bosnian Parliament allocated EUR 2.6 million for the salaries of domestic judges, administration cost, courthouse and all other related domestic costs. The Iraqi High Tribunal (IHT) is also a domestic process and received a significant amount of aid from the US which budgeted $75 million in 2004, $128 million in 2005, and $61 million in 2006. This supported IHT facilities, investigations and proceedings. The United States Institute of Peace provided support for 10 Iraqi judges to visit the Hague to meet other war crimes tribunal veterans.

Considering the financial costs involved, it appears to be a wise decision by the Bangladeshi government to proceed with a domestic process. Also, the domestic process is crucial for legitimacy and wider participation from various communities that have been affected by the violence of 1971. However, the domestic justice mechanism of Bangladesh is relatively weak and corruption is a serious concern. The Iraqi High Tribunal demonstrated that deficiencies in the domestic justice process could create a major disadvantage. Legal decisions are also inherently political acts that have long-lasting political implications. How will the responsibilities of Pakistani citizens be resolved? For Bangladesh, networking with various international and regional counterparts to share knowledge and develop skills for the justice mechanisms would be a useful strategy.

Rushing into a war crimes trial would not be advisable before the reports and recommendations of the proposed enquiry commission mentioned earlier and a detailed consideration of the finances. The current political environment in favour of a trial may not reoccur and if the trial does not succeed there will be significant justice fatigue. Also further delays mean that yet more of the evidence is destroyed and perpetrators disappear from the scene as more die. These practical considerations would obstruct any possible future processes. It is important to ensure that the ordinary people who experienced violence during the war have meaningful access and are encouraged to participate in the proposed commissions and the trial. Outreach and communication are crucial here. The Sierra Leone process has demonstrated that radio, video and public discussion influence public opinion about war crimes trials. If these justice processes are considered to be elite or middle-class based initiatives, then the expected impact of the trial would be seriously undermined, its legitimacy challenged and people would feel cut off from the entire initiative. The success of the proposed trial of war criminals will be measured by its ability to create a legacy for future generations not only in Bangladesh but for the global justice agenda.

1 Press Release on Charles Taylor case, The Sierra Leone Court Monitoring Programme, Freetown, July 3, 2007.www. slcmp.org/dr website/.../ Access_ Denied_to_CT_ Trial_ Final.pdf.
2 Baqir Sajjad Syed, Dawn, May 15, 2009.
3 Dawn, May 14, 2009.
4 For example, see works of Leo Kuper 1981; Samuel Totten, 1997, 2004; Rudolph Rummel, 1998; Ben Kiernan, 2007; and/or the Journal of Genocide Reseah
5 http: //www.amnesty. org/en/ news-and-updates/good-news/un-provides-welcome-support-bangladesh-war-crimes-investigations-20090407
6 The Daily Star, April 8, 2009
7 For a detailed account see Willem Van Schendel, A History of Bangladesh, Cambridge University Press, 2009
8 The Indira Gandhi regime of India was the most important ally of Bangladesh during the conflict. The regime perceived the Bangladeshi national movement as a political opportunity in the context of the India-Pakistan rivalry. India also provided arms and ammunitions, training and logistical support to the Muktibahini. Indian public opinion provided strong moral support for the military action of India. The West Bengal and Northeast Indian regions were initially sympathetic to the refugee in-flow in the country.
9 Jagjit Singh Aurora, 'The Fall of Dacca', The Illustrated Weekly of India, 23 December, 1973
10 Hasan-Askari Rizvi, 1987, The Military and Politics in Pakistan, 1947-86, Lahore: Progressive Publishers.
11 On 3rd December at 1747, the Pakistani Air Force (PAF) attempted to disable the Indian Air Force (IAF) with a pre-emptive strike. Airfields at Amritsar, Srinagar, Avantipur, Pathankot and Faridkot were attacked. For details see http://www.globalsecurity. org/military/library/report/1984/KRG.htm
12 A recent study suggests that 269,000 people died during the war leading to the liberation of Bangladesh in 1971. Obermeyer, Ziad, Christopher J L Murray, and Emmanuela Gakidou, 'Fifty years of violent war deaths from Vietnam to Bosnia: analysis of data from the world health survey programme', British Medical Journal, June, 2008, issue 336, pp 1482-1486.
13 Kashmir dispute was the other important issue that India and Pakistan sought to resolve through the Simla Pact.
14 For details refer to the Tripartite Agreement of Bangladesh, Pakistan and India, 9 April, 1974.
15 Also, a High-Level Panel was established by UN Secretary-General Ban Ki-Moon for the December 2008 Bangladesh parliamentary election, consisting of senior UN officials and election experts.
16 Some blogs have highlighted this, for example, see Drishtipat Collective Writers' Blog 'Unheard Voices', Uttorshuri, and South Asia Citizens' Web (SACW).
17 General Ahmed mentioned in a recent interview that 'when Bangladesh Army's Organogram was made in 1972, (the) total strength was about 57,000 with the Chief of Army Staff of the rank of Lieutenant General. Now the strength of the Army is approximately 145,000…' http://deshivoice.blogspot.com/2007/08/general-moeen-u-ahmeds-interview.html
18 Dawn, 14 May, 2009.
19 Suzanne Katzenstein, 'Hybrid Tribunals: Searching for Justice in East Timor', Harvard Human Rights Journal , Vol. 16, Spring 2003
20 http://bellum. stanford- review.org/?p=537
21 Michael P. Scharf , The Special Court for Sierra Leone, October 2000, http://www.asil.org/ insigh53.cfm. The UN tribunals for the former Yugoslavia and Rwanda have together cost at least US$1.3 billion over the past decade and more than $1 billion more is likely to be spent before proceedings are concluded. For details see, Peter Kammerer, South China Morning Post. Hong Kong: Sep 26, 2004
22 The Iraqi Special Tribunal, which was set up to try Saddam Hussein and his accomplices, received $128 million from the US. 'The Price of Healing', August 4, 2006. ICTJ news report.
23 The Guardian Weekly, 'Civil war crimes tribunal under threat as donations dry up', London (UK), Feb 25, 2009. pg. 24.
24 Beth Dougherty, 'Transitional Justice on Trial: Evaluating the Iraq High Tribunal', Paper presented at the annual meeting of the International Studies Association 48th Annual Convention, Hilton Chicago, CHICAGO, IL, USA, Feb 28, 2007

Bina D'Costa is a research fellow at the Center for International Governance and Justice and the Convener of the Security Analysis program at the Australian National University. She is also the author of Nationbuilding, Gender and War Crimes in South Asia. Her research interests are in justice advocacy and peacebuilding in Asia; human security and refugees; and children in international politics.