The ugly spectre of war criminals in our community is creeping its way back onto the national agenda. Efforts to hold some of the perpetrators of war crimes in 1971 accountable continue today, raising the questions: is it ever too late to pay for a crime? Is justice delayed justice denied?
A number of political leaders and commentators have suggested in recent months that the ongoing trial of Ghulam Azam and others on charges of crime against humanity would throw the country into further political instability. Several blogging websites have also started a concerted effort to derail the current trial by questioning its motivation.
In 1971, a nation was torn apart before our eyes. We watched paralysed with horror as atrocities were committed against innocent civilians including women and children. Forty-one years later we are dealing with the legacy, trying to exact punishment on the perpetrators of evil and help those who would rather forget, because remembering is too painful.
Before trying to justify the holding of the current trial by the International Crimes Tribunal (ICT), let’s consider the arguments put forward by those who oppose it.
The first one, which I think is the weakest, goes on like this: it has been a long time since the alleged crimes were committed. The trial has stirred bitter memories for many and has raised the age-old question of whether war criminals should be tried years after the atrocities have taken place and when younger generations have little memory or knowledge of what has occurred. It is time for the nation to forget and forgive and move forward. The nation has other priorities.
The problem with this argument is that the consequences of war crimes and crimes against humanity are felt for generations. Criminals have to be held accountable for their actions irrespective of the time when the crime took place. That’s one reason why there should be no statute of limitations on the prosecution of alleged war criminals. Such prosecutions are as much about a recognition of what was done as they are about delivering justice.
Second, critics have raised concerns regarding the statutes, rules of procedure, and practices of the ICT which was established under a 1973 Act. The rules and procedures have later been modified and improved in June 2011 and the Bangladesh government has promised to meet international standards in these trials. Justice can only be done for the victims, their families, and the perpetrators, if the Tribunal is fair and is seen as being fair by the people of Bangladesh and the international community. This is an opportunity for the government to demonstrate the virtue of a legal process that is free and fair.
Critics also argue that the alleged crimes do not qualify for prosecution by the ICT as they were committed before the court’s jurisdiction started. However, this should not prevent Bangladesh from fulfilling its obligations under international law. There is a principle, sometimes referred to loosely as universal jurisdiction, which suggests that for crimes such as these, any state on whose territory such an accused resides should either prosecute or extradite. The principle is based on a moral imperative: people who commit crimes that offend humanity must be brought to justice and we, like all nations, have a responsibility to honour this simple but profound statement of humanity.
So, why do we need this trial? The basis for taking an alleged war criminal to trial is completely different from the reasons for punishing a murderer who kills in peacetime. I can think of at least three reasons for the trial to proceed: humanising the accused; demonstrating moral superiority; and providing closure.
First, trials of war criminals should seek to eradicate any myth that exists about the character of the perpetrators. By systematically listing their crimes, and by exposing their glaring faults, the alleged war criminals are rendered as particularly vile individuals.
Second, it is important that we demonstrate our moral superiority. Irrespective of the level of contempt and anger that we feel for someone who instigated the murder of innocent people, we can take solace from the fact that democracy in our country remains unscathed – that we refuse to deviate from the moral high ground.
Last, but not the least, is the need to provide closure. By applying the principle of justice to the alleged war criminals, we could draw a line and say that it is over.
Four decades after independence, the people of Bangladesh can finally see justice done for war crimes and other atrocities committed during the 1971 War of Liberation. The International Crimes Tribunal is certainly necessary to provide accountability and to address longstanding cries of impunity for the alleged criminals.
Bangladesh should confront the unpleasant truth about the alleged war criminals and move to investigate and prosecute them with dispassion. They must be given a fair and proper trial, and every opportunity to defend their claimed innocence, but they must be tried.
The victims of their crimes deserve nothing less.
A. R. Chowdhury is the Chairman of the Department of Economics at Marquette University. He also serves as the Chief Economist for the Capital Market Consultants and was recently appointed to the Academic Advisory Council of the Chicago Federal Reserve Bank.