Trials and error

Syeed Ahamed
Published : 5 June 2010, 01:20 PM
Updated : 5 June 2010, 01:20 PM

Some 90,000 – 95,000 Pakistani prisoners of war (POWs) were imprisoned after they surrendered to the Joint Command of Bangladesh-India at the end of Bangladesh's war of independence in 1971. The New York Times reported in March 1972, that Bangladesh intended to try some 1,100 Pakistani war criminals including A.A.K. Niazi and Rao Forman Ali Khan. Meanwhile, some 32,000 local collaborators were arrested on various charges by September 1972. The government initially prepared for 20,000 prosecutions, while lack of evidence hindered the trials of the remainder, The Guardian newspaper of the UK reported on 22 September, 1972.

Since both the Pakistani and local war criminals were liable for the crimes, whether they committed the crimes independently or together, each could be tried individually in the absence of the other. Hence, from the onset, two independent trial processes were established for the Pakistani and local war criminals under separate laws.

The Bangladesh Collaborators (Special Tribunals) Order, 1972 was announced to try the local war criminals. The constitution of Bangladesh was also amended to include Article 47 (3) in order to fasten the trial of members "of any armed or defence or auxiliary forces" for genocide, crimes against humanity or war crimes. The International Crimes (Tribunals) Act, 1973 was announced on 20 July 1973, mainly to try the Pakistani war criminals.

At the time, the government also announced a two-tier trial process where national and international jurists would be appointed to try high profile war criminals, while an all-Bangladeshi jurist panel would try the rest, according to the New York Times.

Initiation of Trials

The "Instrument of Surrender" that was signed on 16 December 1971; and the United Nations Resolution 307 passed on 21 December 1971 explicitly required both India and Pakistan to follow the Geneva Conventions of 1949. At that time Bangladesh was not a member of the United Nations and was not recognised by most nations. Hence, India was held solely responsible for the safety of the Pakistani POWs, and all POWs were transferred to India within weeks.

To begin the trial of Pakistanis, Bangladesh requested India to hand over the accused POWs. India agreed to hand over only those Pakistani POWs against whom Bangladesh could provide prima facie evidence of atrocities committed ("India opens way for Dacca trials", The New York Times; March 18, 1972). Three months later, the NYT reported that Bangladesh had provided evidence against 150 POWs, and India had agreed to hand them over to Bangladesh. Eventually, specific charges were brought against a total of 195 Pakistani war criminals.

Meanwhile, the trial of local war criminals and collaborators became difficult in the severely resource-constrained fledgling nation. Specifically, the police force was severely depleted during the war, and many experienced officers were stranded in Pakistan. Only 2,848 trials were completed by October 31, 1973, with 752 local war criminals convicted and sentenced.

Repatriation of Pakistani war criminals

To prevent Bangladesh from trying the Pakistani war criminals, the Pakistan government pursued a series of atrocious actions including: preventing roughly four lakh Bangladeshis from leaving Pakistan; keeping the Bangali officers in "concentration camps", and imprisoning thousands of Bangalis without charges. The erstwhile government in Pakistan also announced a one thousand rupee reward for capturing any Bangali trying to escape from Pakistan. On August 10, 1972, Pakistan president Zulfikar Ali Bhutto threatened to use China's veto power to stop Bangladesh from gaining membership of the United Nations if Pakistani soldiers were tried for their war crimes, and China actually vetoed Bangladesh's membership at the UN on August 25, 1972. On May 27, 1973, Bhutto further announced that if Bangladesh tried the Pakistani soldiers, Pakistan would also try the Bengalis in similar tribunal for passing information during the war. In line with this threat, Pakistan arrested 203 senior Bengali officers.

India and Pakistan (with Bangladesh's consent) signed the Delhi Agreement on 28 August 1973, to repatriate most Pakistani POWs in exchange for the release of entrapped Bengalis and repatriation of stranded Pakistanis in Bangladesh. However, the 195 Pakistani war criminals were not sent back home under this treaty. And contrary to widespread belief, the India-Pakistan Simla Agreement of July 2, 1972, had nothing to do with Pakistani PoWs being released.

In 1973, Pakistan proposed that they would establish a judicial tribunal to try these 195 Pakistani officers if Bangladesh abstained from trying those POWs in Dhaka, according to the May 1 issue of Pakistan Affairs, 1973. They also kept more than 200 Bengalis as hostages until the 195 Pakistanis were released.

When the Islamic Summit was organised in Pakistan in February 1974, Muslim nations almost unanimously wanted Bangladesh to join the summit. Bangabandhu Sheikh Mujibur Rahman, the founding president of Bangladesh, declared his intention to join the summit, but only with full Pakistani recognition, while Bhutto refused recognise Bangladesh before securing the release of the 195 Pakistanis. On the night of 21 February, foreign ministers of 37 Muslim countries sat at a meeting to solve the problem and a seven member delegation visited Dhaka to persuade Bangabandhu, NYT reports from the time reveal. It appears that Bangabandhu had to abstain from trying those 195 Pakistanis in Dhaka in a bid to rescue Bangladeshi citizens from Pakistan, to gain UN membership (which was vetoed by China on Pakistan's behest), and most importantly to secure foreign aid and the migrant labour market in Arab West Asia.

On 22 February 1974, Pakistan recognised Bangladesh and on 24 March, it released the remaining 206 Bangladeshi hostages from captivity. Finally, a tripartite agreement was signed between Bangladesh-India-Pakistan on 10 April, 1974, under which those 195 Pakistani war criminals were repatriated (for details on this event, see http://bit.ly/dAntiT).

Release of local war criminals

Meanwhile, the trial of local criminals became ever more difficult. While the Collaborator Act paved the way for the trials, old criminal laws were still in use, which required conventional evidence such as post-mortem reports that were impossible to uncover in genocide cases and resulted in a large number of acquittals as The Guardian reported in 1972. There were also conflicting reports of some collaborators taking refuge in the opposition political parties, while some opportunists used the trial to settle old scores. At the same time, the tepid pace of trials, given the lack of resources meant thousands of potentially innocent people were languishing in prison. To address these issues, Bangabandhu announced a conditional general amnesty on 30 November 1973, for everyone except those who were involved in rape, arson, looting or murder.

Under the traditional laws and with limited capacity, it was not possible at that time to prosecute senior collaborators for their active role in leading or supporting the carnage. Instead, they were prosecuted for taking the side of or collaborating with the Pakistani army. Hence, many such collaborators escaped prosecution using the general amnesty, on the condition that if their role in murder, rape or arson is found, they will be brought to justice again.

After the August 15 tragedy, the military regime repealed the Collaborator Act altogether and the rest of the collaborators were eventually released.

Keeping the options open

A closer look at the trials and release of the Pakistani and local war criminals suggest that while political leadership of the day had to shelve the trial process at that time, they never intended to terminate the possibilities of any future trial.

The Tripartite Agreement clearly mentioned Bangladesh's position on the 195 Pakistanis in the Article 13: "there was universal consensus that persons charged with such crimes as 195 Pakistani prisons of war should be held to account and subjected to the due process of law". However, as the Article 15 says: "having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past," the Government of Bangladesh had decided not to proceed with the trials as an act of clemency.

Here the scope of clemency is clearly limited to Bangladesh's decision on not to try them here. But it keeps the option open for a Pakistani or international trial of those Pakistani war criminals.

Bangladesh continued to provide evidence against those war criminals to pursue the Pakistanis to try their war criminals. When Pakistan's Hamoodur Rahman Commission submitted its supplementary report, it recommended that:

The Government of Pakistan should set up a high-powered Court or Commission of Inquiry to investigate these allegations, and to hold trials of those who indulged in these atrocities, brought a bad name to the Pakistan Army and alienated the sympathies of the local population by their acts of wanton cruelty and immorality against our own people.

Similarly, local war criminals who were released for the lack of evidence or resources to continue with the trial in the 1970's, ultimately cannot escape justice, as the general amnesty is not applicable to people against whom charges of arson, murder, rape or abduction were brought.

While the Collaborator Act was repealed by the military regime of which Ziaur Rahman was the key member, his government (or any subsequent one) did not repeal Article 47(3) and the International Crimes (Tribunals) Act, 1973 which provides the basis of any trial of those who committed war crimes and crimes against humanity in 1971.

In case of genocide or crimes against humanity, proving the causal links between the specific crime and the group's leader is very difficult. Considering the complex nature of such association, the international standard for the trial of crimes against humanity thus offer better opportunity to use dated evidence, circumstantial evidences, motives, etc. as legally acceptable arguments. While post-independence political leadership could not use such evidence for lack of capacity, they however designed the constitution and tribunal acts along the lines of Nuremberg Tribunal's Article 6(c) that outlines how the war criminals can be tried for 'crimes against humanity'.