Afsan Chowdhury
War crimes tribunal: revenge, fair trial or a big mess?
Even before the trial has begun, the war crimes tribunal is threatening to become controversial. Partly because many are reading politics in the trial process while there are international concerns that the legal regime governing the trial is inadequate. Some are worried that the prosecutors may not have gotten their acts together as far as admissible evidence collection and appropriate prosecution strategy goes. More anxiety may follow.
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Let us face it; everyone wants revenge and not a trial. Most see the trial as a legal formality to be completed to punish the accused. But that is not the business of the state however intense the social feeling is. While everyone knows about the war crimes of 1971 and the war crimes tribunal has come into existence to try those who committed crimes against the people, they don’t add up to conviction which is a legal matter, not a social or emotional point. While everyone is anxious to seek punishment of war criminals and not necessarily a fair trial, the whole business of the trial to be run by the state is exactly that.
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Due to repeated failure of various regimes to try war criminals, an enormous reservoir of resentment has been created in public minds. But the trial is not a tool for revenge and that is why the WCT has become a complex matter. It is responsible for providing even handed justice for all including the criminals and no matter how much people want revenge, the ultimate goal of this body will be to deliver justice to all, the victims and the accused.
Using the court to seek revenge will defeat the purpose of the process because revenge is not built around legal and logical action while a court is. And a bad trial will be a very bad revenge.
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Questions whether a fair trial is going to be held has already been raised and while internally this is not much of an issue, it is in international quarters who matter on such matters. Two agencies, Human Rights Watch (HRW), a global HR organisation and the US government have raised concerns about various procedural and legal matters relating to the trial process while supporting the objective of the government to hold the trial.
HRW has said that while Bangladesh has already carried out a number of amendments to the 1973 Act which it welcomes, it seeks more. Some of the key ones are:
- Amending the definition of crimes to articulate more clearly the relevant definitions of war crimes, crimes against humanity, and genocide as they existed under domestic or international law at the time of the offence;
- Amending the act to allow challenges to the constitution of the tribunal and the appointment of its members;
- Amending the act and rules to ensure that the due process — rights of the accused are consistent with Bangladesh’s international legal obligations;
- Repealing Article 47(A) of the Bangladesh Constitution to allow the accused full protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44, which protects fundamental rights;
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Bangladeshis, who are affiliated with the process, whether from the government or civil society spaces will no doubt have their say on the issues raised by the US government and HRW but that they have been raised means such issues will become the test of a generally acceptable trial. The US government’s representative Stephen Rapp has stated on matters he found lacking relating to international standards and international justice process regimes concerning such trial.
International Crime Strategy Forum (ICSF) has counter argued on such matters in a recent bdnews24.com opinion post (http://opinion.bdnews24.com/2011/05/22/stephen-rapp-of-misconceptions-unrealistic-expectations-and-double-standards/). A point stressed by the ICSF is that the trial is a purely domestic matter and its provisions are not matters for scrutiny by the international legal regime.
It is probably so and the debate and discussion on legal principles and jurisdictions will go on but to claim that it is ‘purely domestic matter’ is unrealistic even if the trial is being held in a national court. No war crimes tribunal is ever domestic in today’s world and the fact that the HRW and Representative Rapp are already involved in discussing the trial means it is already been placed under global scrutiny. It is de jure domestic but de facto international. To preserve the effectiveness of the trial, one must take these facts into consideration.
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One reason why there is anxiety over whether Bangladesh has the ability to conduct a fair trial particularly on such a complex issue is because of our overall weak reputation as far as having a satisfactory legal regime goes. Our judiciary is not considered robustly independent –rightly or otherwise — and we have a serious extra-judicial environment impinging on the rule of law.
The overall impression about the judiciary in general is also not favourable whereby the subordinate judiciary is considered ‘corrupt’ and the higher judiciary may have been willing to consider official opinion when passing certain cases. The recent Grameen Bank episode has not enhanced the reputation of the courts particularly in the international sector where it was closely followed. These three factors; a tainted lower judiciary; a somewhat sympathetic (to the government) higher judiciary and the tolerance of extra-judicial agencies over decades don’t make Bangladesh look like a very legal society. It makes our ‘revenge seeking’ not so halal either.
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According to reports, three UK lawyers Steven Kay, Toby Cadman and John Cammegh have been hired to help the defence.
Steven defended former Yugoslav president Slobodan Milosevic facing charges of genocide, crimes against humanity and war crimes in the International Criminal Court in the Hague of Netherlands.
Toby was a prosecution lawyer in the Bosnia Tribunal for war crimes and John was defence counsel in the Special Court of Sierra Leone for international crimes including war crimes committed during the civil war (1991-2001) of the country. (International Crimes Strategy Forum (ICSF) website)
These are international veterans with a long track record of successfully defending people accused of war crimes.
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But does the prosecution team have it to carry out the task?
It appears that none of the prosecuting lawyers have experience of any kind to international criminal law let alone practice. Few are experienced defence lawyers. Bangladesh lawyers and war crimes prosecution activists are not happy with the situation.
“Dr. Shahdin Malik, dean of Brac University’s law school, said, ‘We don’t have any in-house expertise, no one has dealt with these kinds of cases in Bangladesh …There is a dearth of knowledge on the prosecution side (Call for govt to instruct foreign lawyers for ICT prosecution, New Age, February 22).’
‘Sultana Kamal, the chief executive of the human rights organisation Ain o Salish Kendra, also stated, ‘We all know these people [local prosecutors] and so how can anyone say they are fully competent? (Call for govt to instruct foreign lawyers for ICT prosecution, New Age, February 22)’
‘Shahriyar Kabir, the executive president of Ekatturer Ghatak Dalal Nirmul Committee and one of the country’s key war crimes campaigners, said, ‘I don’t have confidence in the current lawyers (Call for govt to instruct foreign lawyers for ICT prosecution, New Age, February 22).’ As Shahdin Malik said, ‘The government should look for the best international criminal law prosecutors and instruct them.’ ( New Age report Feb 2011)
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While Bangladesh is not considering hiring international lawyers, it doesn’t seem to have the specific competence to either investigate or prosecute. Can one take this risk given the importance of this case? In 2007, when Sheikh Hasina was prosecuted by the Fakhruddin government she had two international lawyers advising her defence team. More importantly, Sheikh Mujib’s defence team in 1968 when he was being prosecuted in the Agartala Conspiracy case, his team was supported by Thomas William, a British lawyer who filed a writ petition in Dhaka High Court challenging the legality of the formation of the tribunal.
Not to get the best lawyers for the prosecution when historically it has always been done puts the case at risk from floundering into a mess. What will the people responsible for this trial say if the case for the prosecution fails because nobody has adequate experience in this sort of law?
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It is not a legal case at all, it is a political case of significance, nationally and internationally. If the WCT fails to deliver what people want or the global legal world expects, the only thing that may be delivered is a mess which can damage the status, reputation and aspiration of the people all in one go making everyone concerned unhappy and angry.
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Afsan Chowdhury was part of the Muktijuddher Dolilpatra Project led by Hasan Hafizur Rahman from 1978 to 1986 which produced 15 volumes of documents on the history of 1971. For the BBC, he produced eight radio series and several chat shows on the issue on 1971. He has produced a video documentary on women and 1971 titled “Tahader Juddhyo”. Afsan has edited and co-authored a four-volume history of 1971, “Bangladesh 1971”.
He has worked in several parts of the world as a development and Human Rights specialist for the UN and other agencies. Afsan was the Oak Fellow on International Human Rights of the Colby College in the USA in 2008.
I think the prosecution team is competent enough to handle these cases. We have to remember that the ICT aided by 1973 act is quite different than other tribunals formed so far around the world.
1973 act does two third of the work of punishing the accused, one third is up to the investigation team, prosecution and Judges. I think all of them are highly motivated and very soon we will see these criminals punished.
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Some of the remarks of Mr. Chowdhury are unfortunate.
He says, quoting others, Bangladesh is not capable of conducting war crimes trial. Fine, which country is? Did the accused get their fair share in Guantanamo Bay or NY trials of Dr. Aafia Siddique? Truly, I am not aware of any group outside the ICJ in the Hague that can try such cases neutrally. And yet, as we all know, even the USA govt. does not trust it, and thus, has not approved its legality.
It is true that Bangladesh’s legal system is a flawed one. And as part of a family that had fought land-grabbing schemes of Saqa Chowdhury and his gang in Chittagong, we know how flawed it is to incriminate land-grabbing cartels or syndicates! But what is the solution? Should we stop seeking justice when we are victimised by those criminals that demolished ten homes in our family premises, uprooted 16 tenant families, and harassed my family members in Khushi in 2005 during the BNP rule?
In spite of a lot of good jobs done by the HRW in the human rights sector, I am sorry to say that its opposition to the trial of suspected war criminals of 1971 is simply not right. More hypocritical is the attitude of the USA government. It is like calling the kettle black! I would like to know why OBL was not tried and instead killed as an assassination target? What is HRW doing about hundreds of innocent prisoners rotting in the USA-controlled prisons in Guantanamo Bay, Afghanistan and Iraq? Are the drone attacks justifiable and legally right while trial of suspected war criminals in Bangladesh wrong? What is the agenda of HRW and many such NGOs that seem more interested about disintegration of Bangladesh along ethnic or tribal lines?
Let’s face it. We live in an imperfect world with faulty justice system everywhere. The advocates challenging the legality of the war crimes tribunal in Bangladesh can do us all a favour by showing real examples where justice is colour-religion blind and not unfair on sensitive matters like the war crimes, terrorism, etc. Whom are they trying to protect – a murderer and pathological liar like Saqa?
Regards,
Habib Siddiqui
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On our inability to punish the collaborators of ‘71
(this was written in 2008)
Events leading to 25th March of 1971 were not conducive to certain segment of population of the then-East Pakistan. During the intervening caesura of nine months between March and December, those unhappy minions abetted the Pakistani military that exacted a genocide on the entire population of current Bangladesh. So, it was expected that the Bengalis would have been gravely enraged leading to a lot more post-liberation acts of revenge than what actually had occurred. This low level of revenge is a historical oddity and cries for an explanation.
I do believe that the Bengalis are innately less violent than many other people. This can be a function of the abundance of nature we are blessed with. However, this possibly is a salient undercurrent upon which other intricate factors acted rather powerfully:
1. It is important to remember that the Pakistani military in the then-East Pakistan, for all practical purpose surrendered to the Indian military. It was between Lt. Gen. Niazi and Lt. Gen. Aurora. A victorious military is bound by international law to treat the vanquished with respect. Unless protected by the Indian military, the Mukti Bahini (still lacking a cohesive structure) would not have been able to save the Pakistani military from the wrath of Bangladeshis.
2. It is argued by some that, tucked in our Liberation War, were other intra-mural wars -
a) a generational war within many families and
b) an ideological war amongst the Bengalis of then-East Pakistan.
Because of a homogeneous and cohesive societal structure – everyone in one side was connected, either socially or by relationship, to somebody on the other side thus largely attenuating the eventual revenge. Unfortunately, this generational and ideological conflicts still continues to hunt our national psyche.
3. Even though we won the war – our win was not ours totally. Our national interest was tampered by the national interest of our ally. Eventually it was Mrs. Gandhi and Mr. Bhutto, who decided the fate of the surrendered Pakistani Military. There was no way that Bangabandhu could do much to put the likes of Rao Forman Ali to trial.
4. One may allude to the hunt of Nazis by the Jewish people and lament for the inability of ours. The Jewish people could do it for a few good reasons that do not conform with the situation of ours.
Firstly, Nazi Germany was a defeated nation. Pakistan was not a totally defeated nation in 1971. Some may rightfully argue that they did not even surrender to us. Thus we could not put our hands on their military personnel.
Secondly, the Jewish people had a well-defined enemy with whom they shared no significant cultural/religious/ethnic identity. So they could go full speed with no hindrance from inside. But for us, it was a totally different scenario. A “razakar” was also a Bengali with multiple ties with his next door “mukti-joddha” – thus getting a less than deserving punishment!
Thirdly, the State of Israel is an international powerhouse by virtue of its tremendous influence over many powerful countries for a variety of reasons. And power matters!
Now after 36 years we, rightfully, are talking about “crime and befitting punishment”. I wish, we were a little more vindictive in the past. Now that we are talking, I hope, we do not let it linger further to confound and confuse ours posterity for ages.
06/08/2008
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We, the new generation think that the judiciary team of WCT is incompetent. I agree with Dr. Sultana Kamal. We need some foreign lawyers to fight the case. We also want international sector to help make the trial more impartial.
Thank you Afsan Chowdhury for pointing out the right things.
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Dear Afsan, once again, thank you very much for raising this basic issue as regards WCT.
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It seems to me (actually the vast majority of knowledgeable, sensible and non political citizens of this country) that this “trial” will drag along for two more years, until YOU KNOW WHEN so that it remains an issue (forever!?/Will our grandchildren bring them to the dock!!!?).
Then, by some “twist of fate” Nizami and Saydee and the others will either scurry out in this political melee of Bangladesh or die peacefully and happily, sans regret, without any scope left for “vengeance” (fair trial). All things are not destined to end in an angelically perfect manner.
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As days go by, it looks as if anything like ‘trial done and justice delivered’ is getting more uncertain. One may wonder if Ghatak Dalal Nirmul Committee (led by Jahanara Imam) method of mass trial, ‘the people’s court’ was a better way to condemn the offenders of the inhuman crimes committed in 1971.
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What the generation of 71 wants are,
1. Let someone to establish that some of our countrymen were engaged in war crimes
2. Let anti-liberation force understand that, thousands of people suffered in the hand of Razakar, Al Badar, and Al Shams.
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Good question.
Thanks.
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Once again, you have written a piece that makes sense. You have ultimately said what the ruling party refuses to acknowledge.
Thank you for the candour in your article. I have been debating on this issue and have come under attack for saying that a fair trial cannot be expected under this tribunal. Simply because they are not experts in this area and are driven by their intoxication of power. Allah help us all, amen.
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True – that petty ‘revenge’ syndrome has taken away much of the credibility of the war crimes tribunal. Thanks for a timely and bold piece Mr. Afsan.
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