MUNIR UZ ZAMAN / DRIKNEWS

Not Only About Justice

Shayan S. Khan urges us to end the 38-year wait for justice on war crimes

Justice delayed, they say, is justice denied. By that saying, 38 years is a horribly long tine for a nation to grieve, and the millions who fell victim to rape and mass murder in arguably the most underestimated genocide of the 20th century during Bangladesh's bloody war of liberation can never be done justice.

Any war crimes trial, especially when it is initiated so long after the alleged crimes took place, is about much more than justice. For any country that initiates such a trial, there is also always a point to be proven.

The over-riding objective of Nuremberg, the most famous precedent of any such case, was ostensibly to prove that the Jewish people were no more going to take the periodic suffering the countries of Europe inflicted on them lying down,. They would be hunted down and captured, whether from the capitals of Europe or the backstreets of Latin America. And they would be served justice, whether months down the line or years. For them, justice was not an end in itself, but more a means to an end. And so the concept of justice delayed translating into justice denied did not apply.

In truth, it is questionable whether justice can at all exist for the tortures borne by those who fell victim to the systematic rape and mass murder of the Pakistani forces and their collaborators to yield as a nation.

Unfortunately, a nation that has so far failed consistently to honour the sacrifice of their fates, by gaining and consolidating a reputation nor for resoluteness and conviction but rather corruption and other malpractices.

Today, on the back of a decrease in the political capital of those who harbour the perpetrators, we seek justice for those lost souls in a court of justice. Yes, that in itself is shameful. It took a decrease in their political capital, after 38 years, to give rise to this intent.

The desire has always been there. It has been raised in the national discourse from time to time. But that desire had never evolved into intent, and still today, obstacles exist in the way of intent evolving into concrete action.

Contrast this with the unwavering vision and symbolic execution of Nuremberg. It symbolised a people held together by the same centre of gravity and marching to the same rhythm of history.

AMDADUL HUQ / DRIKNEWS

It served fully the remarkable potent function that such long, drawn-out processes can sometimes serve: The ability to unite a people in the aspiration for a common purpose. And here we are, yet to make up our minds whether we all really want it (at least consensually, even though we all know what we should want), because we are worried of the political "implications" of justice for rape and murder. Truly, nothing escapes the unrelenting clutches of politicisation in Bangladesh.

This politicisation, which been the bane of so many of our efforts at achieving the status of a stable, prosperous nation, now hangs like the Indian sign over the proposed trial for war crimes. Of course, complications exist. We will be trying for war crimes that took place during a struggle for independence, and many of the charges will be brought against individuals who are now citizens of Bangladesh, and may even have served in democratically elected governments. But that is not enough reason to pardon them.

And that is not enough reason to divide a nation over an issue in which there can be no compromise on unity. Divisiveness will put the legitimacy of any trial into question, as well as give rise to doubts over its chances of success.

It has already seen one party manufacture and subsequently capture some kind of glory to accrue from the process, while another will surely bring it to a shuddering halt once they are voted in. This leaves any prospective trial in danger of turning into more of a sham, another stage for the criminally fractious nature of our dirty politics to manifest itself. Indeed, the most public manifestation in our history, and hence the most harmful and demoralizing for the people's faith in justice and the rule of law.

That is the stage where the repercussions of the trial will have the greatest effect. It is now axiomatic to say politics has consistently undermined justice and the rule of law in Bangladesh. It is, after all, only one of its many victims.

But it is only fair to say that our courts have been able to uphold the constitutional precedence of the law above all forms of power and coercion and deliver justice very rarely in our history.

Quite apart from the many years now compiled by the backlog of cases, trials themselves have been regularly compromised to the perceived benefits of a powerful elite endowed with the financial and political capital to manipulate the workings of the lower courts especially.

IQBAL AHMED / DRIKNEWS

We need look no further back than 2008, of course, for a time when a mockery was made of our justice system with the mass, gradual release on bail of almost every politician put behind bars on charges of corruption throughout the length of 2007, and then the even more pitiful facades through which one by one the cases against them were dropped.

It was the harbinger of a return to democracy, yes, but it would do well not to forget the inherent weakness of the judicial system that this return was built upon. Questions must be asked about the sustainability of such a democracy, but those are questions for another day.

On the more immediate issue at hand, for any war crimes trial to have the desired outcome, what must be ensured above everything else is its independence. This is of paramount importance, or else we will be mere witnesses to a charade that changes course with changes in government. Only then can we move on to technicalities like whether it should take the form of a tribunal or a truth and reconciliation commission.

The former is probably the way we have to choose in any case, given the still bullish denials of any wrongdoing by those whose likes would most likely be facing the charges. They know they have at-least a lobby in the international stage. A quite powerful lobby one might add, built on that most seductive of commodities, oil.

How much sway the Arab states still hold over our affairs is not apparent yet, but we can assume it is considerably less now under a more secular government. We have already witnessed a rise in hostility towards our migrant workers at-least within their borders since the end of the BNP-Jamaat government's tenure. Our dependence on foreign remittance has made this the threat we are most vulnerable to these days. But again, by no means should this be a factor in stopping us from going ahead with the tribunal if we are really serious about it this time. It would be a blatant affront to our sovereignty, and one

AMDADUL HUQ / DRIKNEWS

And perhaps, to end, the need for a certain spirit, if this is to be seen through to its fruition, merits a mention. An independent tribunal, by its very nature, does not discriminate. Bereft of politicisation and hence free from manipulation, it must be given free rein to go after everyone falling under its mandate, including the 195 Pakistanis imprisoned for war crimes but later repatriated to Pakistan under a deal hatched between the Indians and the Pakistanis.

A repatriation that caused Sheikh Mujibur Rahman to thunder at Indira Gandhi: "With this you are responsible for my sole broken promise to my people," as revealed by the eminent civil servant Mr. Asafuddowla, in whose presence it was said.

It is doubtful, nay inconceivable almost, that Pakistan will co-operate with us in bringing these 195 to justice. But that is not enough reason not to file cases against them. To not do so would betray a defeatist attitude, and we cannot afford that.

If the tribunal is set up, we must stay resolutely and courageously behind it. Every measure must be exhausted to remain sensitive to the feelings of the victims and their families, especially in the case of rape victims.

But we must also guard against directing all our energies into this one endeavour. Much remains to be achieved for us as a nation. The tribunal will be a long, time-consuming process, and require mountains of dedication. But if executed in the right spirit of truth and not the grand illusion of politics, the most attractive aspect of it that we must hope to achieve is the extraordinary potential it has to unite a people.

Shayan S. Khan is Operations Manager, CSR Centre.