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.
A burden to lift
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.
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.
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.”
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.”
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.
“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.”
First published in the Globe and Mail, Canada, June 07, 2011