Thursday, June 09, 2011

From freedom to justice: Bangladesh readies war crimes tribunal

Photo: Zahidul Salim - Businessman Azizur Rahman and police officer Mustafizur Rahman speak to Globe & Mail journalist in capital Dhaka

STEPHANIE NOLEN

DAYS BEFORE the end of the gruesome war in which Bangladesh won its independence in 1971, a mixed brigade of Pakistani soldiers and local collaborators descended on the village of Bania Para near the border with India. Their target was the home of Ayezuddin Mollah Rahman, a prominent local businessman who had been sheltering freedom fighters in his house through the nine months of the war. As the gunshots drew closer – and those fleeing in front of the soldiers were shot and dropped in the road – he hurriedly sent his family to hide in a canal in a rice paddy out back.

His wife and four of the children lowered themselves in water up to their necks. The attackers captured Mr. Rahman and beat him, demanding information on his comrades; when he would not talk, they shot him in the back, dumped his body and set fire to the house.

Most of the family could hear his ordeal, but not see it; his eldest daughter, Azironnisa, however, was cowering beneath a bush at the edge of the yard, her infant sister, Hasina Yasmin, pressed against her. She had gone upstairs to fetch the baby didn’t have time to get away.
“She didn’t know the name of the man who killed our father, but she recognized him – and later we learned his name,” recalls Azizur Rahman – now a businessman in his 40s, then a child cowering in a paddy. The man, Muhammad Qamaruzzaman, came back to the village when an amnesty was declared after the war. And he rose to a position of local prominence, the kind Ayezuddin Rahman once held.

Today Muhammad Qamaruzzaman is in jail, arrested on a warrant from the country’s War Crimes Tribunal. Bangladesh is embarking on a landmark attempt to deal with the crimes of its bloody creation. The tribunal has been denounced as a political vendetta – the seven men so far arrested are prominent members of the main opposition parties. It has also been heralded as a vital step in solidifying the country’s return to democracy after years of dictatorship and instability. It may well be both.

And it has significance far beyond the borders of Bangladesh. Recent events in Cote d’Ivoire, Egypt and Libya, and revelations from Sri Lanka, where a long civil war ended in a last eruption of brutality two years ago, have reignited the global debate on the best ways for countries to handle the most serious crimes. Should they try perpetrators themselves? Can justice be delivered in the courts of a still-fragile state?

The events of 1971 remain profoundly sensitive in Bangladesh. So does the impunity many perpetrators have enjoyed for 40 years. “We were demanding for justice and a trial, but we didn’t think it would ever happen,” said Mr. Rahman, who hopes he and his siblings will be called to testify against Mr. Qamaruzzaman.

A burden to lift
Victims’ advocates say the trial will help end a cancerous sense of impunity that has festered in the country since the war. “The perpetrators not only imposed their will on society, but they went on to assume high positions in society and it cut a very deep scar into the psyche of the people,” said Mofidul Hoque, a trustee of the Liberation War Museum in Dhaka.
The tribunal’s mandate is to look at genocide and crimes against humanity, including sexual violence, in the war of 1971. Bangladesh was then East Pakistan, half of the two-part Muslim nation created by the partition of India in 1947. But the marriage of the eastern Bengalis and their relaxed, quite secular society with the more conservative, Urdu-speaking Punjabis, Sindhis and Pashtuns of Pakistan, who lived more than 1,500 kilometres away on the other side of India, was neither happy nor successful.

When a Bengali party won a majority in elections in 1970, military leaders in Islamabad refused to accept the result and suspended parliament. A protest movement began in the east. The army cracked down brutally; the Bengalis declared an independent Bangladesh, and a ragtag group of rebels faced off against the might of the Pakistani army.
The war was largely ignored by the outside world, written off as a sectarian domestic conflict. There were almost no international media in Bangladesh. And so the mass rapes and the scorched earth treatment of villages went unreported. Only the plight of the millions of refugees who fled into India, to camps without food and shelter, and rife with cholera, drew any attention. Today historians estimate that between one-million and three-million Bengalis, mostly civilians, died. And some 300,000 women were raped, including tens of thousands taken as sex slaves by the Pakistan army.

There were only a few thousand Pakistani soldiers in the country at the time; much of the work of exterminating the local resistance was carried out by Bengali collaborators who claimed to be acting to protect Islam through a force called Al Badr, the paramilitary of the far-right Islamist Jamaat-e-Islami party. And it is Al Badr leaders who have now been detained as part of the tribunal’s investigations.

Justice, Bangladesh style
It’s a generally accepted principle of international justice that the leaders with the greatest responsibility be tried. But the Bangladeshi tribunal has no access to the military commanders who ordered the alleged war crimes. They were repatriated to Pakistan after their defeat. Evidence is scarce. It has been more than 40 years since the war, the longest reach of any international justice effort. Only Cambodia’s UN-backed tribunal, sitting 30 years after the crimes, comes close. Jamaat-e-Islami and the Bangladesh Nationalist Party (or BNP, for which one of the men detained is a member of parliament) have several times been part of coalition governments. And, those who may have committed crimes for Al Badr have had ample opportunity to destroy evidence.

Only a decisive political shift in Dhaka has made this tribunal possible. It was an election promise of Sheikh Hasina Wazed and the Awami League, who won a landslide victory in 2008. While Bangladesh passed an unusually progressive International Crimes (Tribunals) Act in 1973, there was a coup two years later that installed parties then under investigation, and the act was iced. It took the next 35 years for sufficient stability and democratic space to allow the independent tribunal idea to be revived – although even those who believe this is not a political vendetta acknowledge that it is convenient that those so far detained form a core part of the leadership of Sheikh Hasina’s main political enemies.

Bangladesh is adamant that this will be an entirely domestic process – a decision determined as much by sovereign pride as by practicality (opposition from Pakistan and India would never permit a UN-backed tribunal such as that in Sierra Leone). But the country has no investigators trained in gathering evidence for a genocide prosecution; it has no lawyers with experience in prosecuting or defending war criminals; it has no judges with experience presiding over a trial of this magnitude. There is as yet no witness protection or victim support program – even though the tribunal hopes women will testify about mass rape, a deeply stigmatizing phenomenon.

“It’s understandable we don’t have the expertise,” said Sara Hossein, an advocate with the Supreme Court in Dhaka. “It’s not understandable why the government is not doing more with the established international war crimes community – other than misplaced national pride or that they don’t want to do it properly.”

The tribunal is moving ahead hastily, in part because of a fear that if the BNP were to come to power again, it would be scrapped, she noted.

“Because Bangladesh is so inward-looking, it hasn’t drawn from the lessons of other tribunals well enough,” Bina D’Costa, an expert on war crimes and international justice in South Asia at the Australian National University, said in a telephone interview. “This one is going to have limited international acceptability.”

The independence of the bench is a critical point of debate. In a year of motions, the tribunal has only twice ruled against the prosecution.

Human Rights Watch, the International Bar Association and the International Centre for Transitional Justice have all written to the government to express concern, saying the Act does not do enough to protect the fundamental rights of the defendants. The ICTJ warned, for example, that it is problematic that seven people have been detained for more than 10 months but none has yet been charged; and that the prosecution is obliged to give the defence access to evidence only three weeks before a trial starts (lawyers for defendants in Yugoslavia, for example, had a year.) Shafique Ahmed, the law minister, rejected those accusations, saying the act is “up to international standard.”

Muhammed Tajul Islam, a lawyer representing all of those so far detained, scoffed at the suggestion. “We have no independent and courageous bench. The judges are highly politically motivated – you can tell from the judgments. Experienced people should be involved here.”

He is consulting with lawyers who represented Serbian leader Slobodan Milosevic and Sierra Leonean warlord Augustine Gbao, but the Bangladesh bar won’t allow foreign lawyers to appear at the court, he said. “The stand of our clients is that they are ready to be tried, but they should be tried by international standards.”

Gone, but not forgotten
Mr. Islam is defending his clients for their alleged role in events that took place two years before his birth; more than half of Bangladeshis, in fact, were born after the war. Nevertheless, the events of 1971 are a constant touchstone here. “Even though our history was distorted and denied, society managed to carry the story to a generation born after, without the support of government,” Mr. Hoque said. “That’s a major achievement.”

There is massive public demand for convictions – and executions. “If he gets the death penalty, we will feel it is good,” Mr. Rahman said about his father’s alleged killer. “We obviously want his trial and punishment. And if he dies first we want the graveyard punished.”

But some analysts believe this leaves the tribunal judges with a quandary. If they attempt to uphold the international standards of evidence and judicial process for genocide and crimes against humanity as applied in tribunals such as those for Rwanda and Yugoslavia, it is questionable whether anyone will be convicted, noted Prof. D’Costa. If there are a series of acquittals, much of the public – and the government – will be enraged. If they do convict, the tribunal will have limited credibility with the outside world and may be seen to have set back the cause of international justice.

None of it will do much to heal the wounds of the war. The political divide that drove some parties to back Pakistan in that war remains unbridged; those parties have never apologized for their role, and they retain the same leadership (Mr. Qamaruzzaman, for example, is assistant secretary-general of the Jamaat-e-Islami). The victorious side has made no effort to take stock of human rights abuses committed by the freedom fighters. There has been no reconciliation process, and there is little sign the tribunal will start one.

“I don’t think something fantastic will come out of it – we need to think of it as the beginning of thinking about justice, not the end,” Prof. D’Costa said. “It’s the opening of the process of talking about questions of reparation, how to think about the past. But it’s not a nation-building exercise.”

Mr. Rahman said his family has existed “in a sea of sadness” since his father was killed, and the killers walked free. To call them to account, he said, can only help the nation. “It’s not a way to get someone back – but they committed a crime and there should be justice. And if there is justice the same thing cannot happen again.”

First published in the Globe and Mail, Canada, June 07, 2011