What does the War Crimes Trial portend for the Future of Bangladesh?

by SMRUTI S. PATTANAIK

More than forty years after the independence of Bangladesh, the war crimes trial has assumed newer significance. The International Crimes Tribunal (ICT), that was formed in 2009 after four decades of waiting, has now started to deliver its verdict after cross-examining the victims and their family members who suffered at the hands of their countrymen. It is believed that the conclusion of these long pending trials will help the nation advance towards a historic closure and would provide a healing touch at the societal and political levels, finally allowing the state to unshackle itself from its bloody past marked by denial of democratic rights, repression perpetuated by the Pakistan Army and its collaborators, and denigration of their linguistic-cultural identity that forms the core of the Bengali nation.

Forty years is not a long time in a nation’s history. This yearning for justice is likely to assuage many people whose dear ones were killed not by the Pakistan state and its Army against whom the Bengalis took up arms but by their own ethno-linguistic compatriots who perceived the liberation war from the ideological prism of demise of the idea of Pakistan based on the two-nation theory. The demand for trial against the war crimes has been a long-pending one. Political expediency and narrow party interests have prevented the political parties to take up the issue in right earnest in the past.

In the last forty years, Bangladesh has witnessed the legitimisation of politics based on religion contrary to its foundational principles of secularism, socialism, democracy and Bengali nationalism which embodied the aspirations of the Bengalis in their fight for liberation. Religious political parties are now part of Bangladesh’s successful transition to a multi-party democracy. Yet, questions from time to time have been raised about their role in the war of liberation in which three million people perished.

The Jamaat has successfully used the ballot box to legitimise itself as a political actor. Due to political expediency, both the political parties —the Awami League (AL) and Bangladesh Nationalist Party (BNP)—have co-opted the religious political parties. Though the BNP now shares an alliance relation with the Jamaat-e- Islami and Islami Oikyo Jote, the Awami League in the past did not hesitate to enter into an electoral alliance with the Khilafat Majlis, a radical party in December 2006 in the run-up to the ninth parliamentary elections. The election was cancelled after the military backed caretaker government took over in January 2007. Given the strong criticism from within the party regarding the hastily concluded agreement between the AL and Khilafat Majlis, the Awami League finally cancelled the five-point agreement that it had signed with this radical Islamic party. This raised doubts about the AL’s commit-ment to secularism as its ideological core.

Liberation War, War Crimes and 

Bangladesh Politics

BANGLADESH has seen a deep division on the issue of the war crimes trial. Soon after independence, the government decided to pursue the trial and accordingly set up the International War Crimes Tribunal, 1973 to try both the collaborators at home and 195 Pakistani Army officers. Though later the government decided not to try the Pakistan Army officers as a trilateral under-standing was reached between the governments of India, Bangladesh and Pakistan, some 11,000 people accused of committing crimes were in government custody when in a military coup Mujib and his family members were assassi-nated. The contest between the two political parties to appropriate the entire glory of the liberation movement has not allowed their national leaders to occupy the historic place they deserve in the national narrative for their contribution to the liberation of Bangladesh. Ideological contestation based on the ideals of the liberation war, identity of the new nation, linguistic versus religious identity have become a contentious issue in Bangladesh politics. Both the political parties claim to have preserved the spirit of the liberation war. While the AL is based on secularism and linguistic nationalism, the BNP claims to have preserved Bangladesh’s Muslim identity and secured multiparty demo-cracy.

The yearning for the prosecution of war criminals started soon after the restoration of democracy in 1991. Bangladesh though had a tumultuous journey from being a secular state to proclaiming Islam as the state region. The 2005 countrywide bomb blasts followed by suicide attacks on the judiciary shook the people of Bangladesh and woke them up to take cognisance of the dangers of growing radicalism which had taken root during the four-party alliance government’s rule and which had gone largely unnoticed or its ominous signs were ignored. In 1992, an organisation named Ekattorer Ghatak-Dalal Nirmul Committee (EGDNC) led by Shaheed Janani (mother of the martyrs) Jahanara Imam had held mock public trial of people accused of war crimes in a Gonoadalat (people’s court) after Golam Azam, whose citizenship was revoked by Sheikh Mujib, was elected as the Amir of the Jamaat-e-Islami. The High Court, however, in 1993 restored his citizenship which was later upheld by the Bangladesh Supreme Court in 1994. The BNP brought charges of sedition against Jahanara Imam and others associated with the Ekattorer Ghatak-Dalal Nirmul Committee while the AL chose to look the other way.

Given the popular support behind the trial of war criminals, the AL after assuming power in 2009 formed an International Crimes Tribunal (ICT) under the International Crimes (Tribunal Act) 1973 passed by the Bangladesh Parliament to try and punish the armed defence and auxiliary force. The government also formed the Bangladesh Collaborator (Special Tribunal) Order in 1972 which was repealed by the Bangladesh Collaborators (Special Tribunal) Repeal Ordinance 1975 and those people who were sentenced by the tribunal were given general amnesty after the military takeover by General Zia-ur-Rahman. The matter of trial became a non-issue for the political elites who governed Bangladesh after the November 7, 1975 coup as they benefited the most politically by forging ties with those who were accused of war crimes. After Islam was declared as the state religion in 1988, religious politics became constitutionally sanctified and the religious political parties were entrenched even though they were rehabilitated after 1977 through the Fifth Amendment to the Constitution. The Awami League, while unveiling its manifesto in Dhaka on December 12, 2008, promised that if voted to power it will try the war criminals. In the first session of the Bangladesh Parliament after the election the government passed a resolution to try war criminals and allocated Taka 10 crores in the Budget for the purpose. However, it was not until December 2010 that the government formed the Tribunal. In July 2010, it barred 40 people, mostly from the Jamaat, to travel abroad. A War Crimes Fact Finding Committee in April 2010 published a list of 1597 suspects.

Regarding evidence to be presented during the trial, the International Crimes (Tribunals) Act 1973 states: “A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, perio-dicals and magazines, film and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.†1

The civil society members were led by the Sector Commanders’ Forum—formed in 2007 by ex-Sector and Sub-Sector Commanders of the liberation war who campaigned for the trial of war crimes committed during the 1971 liberation war. The Awami League, which had led the liberation war, made this one of its agendas in the run-down to the 2008 elections. Such a campaign for the trial of war criminals was second since the restoration of democracy.

The Jamaat-e-Islami, which was opposed to the creation of Bangladesh, not to deprive itself from the electoral prospect that the liberation war sentiment may entail and in spite of its role, did not hesitate to form a front organisation, known as the Jatiyo Muktijoddha Parishad, in January 2008 as a response to the Sector Commanders’ Forum (SRF), which since 2007 along with the Ekattorer Ghatak-Dalal Nirmul Committee (Committee to Exterminate the Killers and Collaborators of 1971, EGDNC) has intensified the demand for the trial of war criminals.

Since popular opinion was mobilised in favour of holding the trial, the Jamaat ironically did not hesitate to mention about the welfare of the freedom fighters. The Jamaat’s manifesto on “the rights of freedom fighters and their rehabilitation†reads:2

• Those freedom fighters who have not been rehabilitated yet shall be rehabilitated with honour and dignity.

• Good medical treatment shall be provided for the crippled and sick freedom fighters.

• The Ministry of Liberation War Affairs shall be made more powerful.

• Allowances for the freedom fighters shall be increased and their children shall be given stipends.

• The Bangladesh Freedom Fighters Welfare Trust (BFFWT) (Bangladesh Muktijoddha Kalyan Trust) shall be made more effective.

• Freedom fighters shall be included in the yearly hajj delegation.

Earlier noticing the growing yearning for the trial, the Jamaat termed the liberation war as a civil war and denied that there was any liberation war. It also denied that there was genocide of Bengalis in 1971 and claimed that war criminals do not exist in Bangladesh. In an interview to the Probe magazine in August 2007, the Amir of the Jamaat-e-Islami, Nizami, said: “We did not take part in the war, so the question of us being war criminals doesn’t arise.â€

Genesis of Shahbag Protest

THE spontaneous movement at Shahbag took many by surprise. The movement was triggered by the flashing of the victory sign by Abdul Qadir Mollah, the Vice-President of the Jamaat-e-Islami, who was given life sentence on February 5 in spite of his proven guilt of the heinous crimes that he had committed. He was proven guilty on five counts out of six charges that were brought against him, including murdering more than 300 people. This led to the spontaneous outbreak of anger, disbelief and suspicion that there was something more political to this verdict.

The Shahbag movement started as a leader-less mobilisation and people from all walks of life, largely apolitical, joined the protest at the Shahbag intersection near the Dhaka University. The protest was organised through the bloggers and online activists’ network and the message was spread through netizens drawing large- scale media and international attention. The youth who rallied mostly belong to the post-liberation generation. Though they had not witnessed the liberation war, they learnt about it from their families and relatives. The new generation has witnessed growing radicalism, political violence, widespread corruption and the culture of impunity that prevails in the country and how the parties have competed with each other to forge alliance with the Islamic political parties. They are conscious of the kind of state they want Bangladesh to become and do not want the war crimes trial to be hijacked to meet the political ends of vested quarters. The fact that Bachu Razakar managed to flee the country in spite of serious charges against him and a controversial verdict was delivered against Molla compelled the youth to come together to prevent the politicisation of the trial.

Given the relations that the two main political parties of Bangladesh share with the Jamaat and its cohorts, many suspected that this ‘lenient’ verdict was part of a political deal. Bangladesh would soon be going for election. The caretaker government system has been abolished by the present government and the BNP has announced that it will not participate in the next election unless the caretaker government system is restored. Many suspect a lenient verdict was a way to persuade the Jamaat to participate in the next election. This will make the BNP’s boycott politically irrelevant. There-fore, the BNP, which for a long time maintained an ambivalent attitude to the war crimes trial and did not join hands with the Jamaat but actually kept itself away from the Jamaat, declared hartals demanding the scrapping of the war crimes trial. As it was apprehensive that the Jamaat may contest the election after reaching an understanding with the AL, it finally found issues to join hands with the Jamaat and wriggled out of its support to the Shahbag movement at the very first oppor-tunity.

Initially, the Left political parties joined the movement and the current Information Minister, Hasanal Haq Inu, also addressed the youth. However, from the second day when the student front of the Awami League wanted to capture this movement to earn some political capital, the bloggers’ network—which is at the forefront of this movement—decided to maintain its apolitical nature and focus on their demand for death sentence to those proven guilty of committing war crimes. They drove away some prominent AL leaders like Sajeda Chowdhury when they felt that this apolitical movement was becoming an instrument in the hands of the political parties. The government passed a resolution in Parliament supporting the move-ment. Keeping in line with the demands, it proposed an amendment to the ICT which would allow the government to appeal against the conviction in the ICT. The right to appeal was earlier provided only to the accused. It made changes in the War Crimes Law to include organisations that were involved in crimes against humanity.

The movement spearheaded by the youth in Shahbag soon turned into a contest between the atheists and believers. Some Islamic political groups joined the Jamaat and demanded death sentence to all the atheist bloggers. The Jamaat also launched its campaign against the Shahbag protest through its blogs, e-mails, information and media campaign saying that the Shahbag movement was spearheaded by atheists and happened to be a government-sponsored smearing campaign against the Jamaat. After Delwar Hossain Sayeedi’s conviction with death sentence was handed down by the ICT, the Jamaat took to the streets. It was a reaction that the Jamaat had prepared itself for months anticipating such a verdict. More than 80 people were killed and the Hindus were attacked in the violence that ensued following the verdict on Sayeedi. However, it is surprising that the government was unprepared to face the situation in spite of the Jamaat’s open threat that there will be civil war after the verdict against Mollah was announced.

Politicisation of War Crimes Trial and Division within the Domestic Forces

THE BNP initially welcomed the idea of trying the war criminals. However, it changed its position soon after some of its leaders were arrested for their role during the 1971 war. Though the BNP supported the movement initially, it later distanced itself from the protest terming it as being spearheaded by the politically motivated cadres of the Awami League.

This movement has also been a contestation between the secular-minded people and the Islamists and both have employed the social media to get their views across to the inter-national community. For example, the Jamaat used the social media to term one of the bloggers, Ahmed Rajib Haider, as an atheist to mobilise the believers. Some anti-Islam posts were mischievously posted on the day of his killing to justify his elimination. In his blog Rajib campaigned for a ban on the Jamaat-e-Islami and boycott of the Jamaat affiliated educational and banking institutions as well as health service.

The main division in Bangladesh has always been on the lines of secularists and Islamists including those who use Islam for political purposes (a difference needs to be made between the BNP and Jamaat here). The usage of the social media to rally the Islamists is not new. One had witnessed how a facebook post tagging an image depicting desecration of the Quran was posted by an unidentified man in the hacked facebook account of a Buddhist man. This news was deliberately used to arouse communal passions and create a circumstance to perpetuate communal violence against the Buddhists as a response to the tension between the Buddhists and Muslims in Myanmar. Ahmed Rajib Haider’s facebook posting, in which he allegedly claimed himself to be an atheist, was publicised to arouse public sentiment against the Shahbag movement. It was later found that his facebook account was hacked after he was brutally murdered in front of his house.

The Jamaat activists tried to delegitimise the movement by manipulating and accusing that the Shahbag activists are atheists and shifting the discourse from the trial of war criminals to debate on Atheists versus Believers. The BNP, which thought it was losing out on the political plank in this movement, soon gave a statement saying that the Islamists were being persecuted by the government thus providing a different twist to the debate on the war crimes trial. It accused that the ICT verdict against Sayeedi was dictated by the Shahbag bloggers. The morphed picture of Sayeedi in a moon was circulated to create an impression that he was innocent. This was used in the rural areas, where he has many followers, to arouse senti-ments against his conviction.

The Jamaat and its supporters succeeded in creating a division and successfully used it to carry out mayhem and target the minorities. The main motive was to elicit a response from India and use it against the Shahbag movement by terming that the protest in Shahbag was stage-managed and motivated by India and thereby derailing the discourse by asserting that it was ‘enemy’-initiated. There is a pattern in blaming India or linking domestic issues to India. The Jamaat and BNP have in the past tried to delegitimise the foundation and inspiration of any movement which is seen as secular by attributing it to an ‘Indian hand’. It was not surprising that the large arms haul in Mizoram, which consisted of AK 47s, was portrayed in a different way in the Jamaat media that said that those arms were being smuggled into Bangladesh to be used against the Jamaat supporters.3

The Hindus blamed the Jamaat-e-Islami as being behind the killing of minorities and looting of their homes, and ironically the Jamaat came up with an official statement condemning the violence against the Hindus. With the election round the corner such a public posture is not surprising. Hindus have been at the receiving end of the political binary as they are mostly assumed to be supporters of the Awami League. This is in spite of the fact that the BNP has its own affiliated minority organisation, called the Hindu, Boudha, Christian Oikyo Kalyan Front. This organisation was formed after incidents of largescale violence against the Hindu population took place soon after the 2001 election victory of the BNP-led four-party alliance. The Hindus were attacked, as they are believed to be supporters of the Awami League, for backing that party.

Since the creation of Bangladesh attempts have been made to question the AL’s commitment to Islam. Therefore it is not surprising to find posters of Hasina with a head scarf and rosary pasted in the wall to appeal to the voters during elections. Frequent reference is made to the AL’s relations with India with an underlining message that the sovereignty of the country and Islam would not be safe in the hands of the AL. Interestingly, in a curious development in Panchhbibi Upazila in Joypurhat, 16 Awami League supporters were forced into a mosque and administered Tauba (Act of Penance) for being supporters of the AL. This happened in front of 300 men with a warning that if they again support the AL they will become non-Muslim.4 The line of division is familiar that the AL is not sufficiently Islamic to protect the Muslim majority population of Bangladesh.

While the BNP remains ambigious on the issue of the war crimes trial, it termed the killing of 80 people in police firing as genocide and accused the government of sheltering the ‘atheists’. The BNP’s game-plan has always been to question the AL’s Islamic credentials. It has all along used the slogan of ‘Islam in danger’ while asking the people to vote against the AL. The party fears that given the character of the Shahbag movement and in spite of the attempt of the youth to remain apolitical, the main beneficiary of this protest would be the AL because of its ideological affinity with the initiators of the movement. Moreover, the BNP also feels that this cry for war crimes trial takes the focus away from the issues of misgovernance and corruption of the AL Government which the party wanted to make its main poll-plank. The party urged the youth to include other issues in their charter of demands like those of corruption, misgovernance and the restoration of the caretaker government. It cautiously stated: “It is expected that the young generation will be concerned about different problems of the nation and take a logical and effective stance on them. So we welcome the youth’s initiative. Though the gathering is being claimed to be neutral, there is an effort to keep the leadership of the protest confined to a particular political quarter.†5

The Shahbag movement further used the slogan Joy Bangla—the slogan used during the liberation war and now by the AL. This made it easier for the BNP to distance itself from it by saying that it was the AL’s stage-managed show. The BNP has benefited from the fact that its founding father was one of the sector commanders and a freedom fighter. Yet its short-term calculation of benefiting from its old battle-cry of “Islam in danger†against the AL may not succeed this time. This is because the spirit of Shahbag is not confined to the urban areas alone: it has spread to the rural areas as well.

The problem with the Awami League is that it has not found the way to deal with the main Opposition party. It considers the BNP as its main political opponent and not the Jamaat. As a result it has not been able to reach a consensus on major issues. For example, the AL should have consulted the BNP on the issue of the caretaker government. Its much-publicised charter of change remains a publicity stunt as the government was afflicted by corruption and spent its energy on going after the Grameen Bank founder, Mohammad Yunus, and alienated the Western countries.

Since its constitution in 2010, the Inter-national War Crimes Tribunal has faced several controversies. Many feel that the collection of evidence is not sufficient. Therefore, the case may falter if the accused file an appeal against the ICT verdict in the Supreme Court. Some also fear that if in the next election the BNP is voted back to power, these verdicts of the ICT would most likely be upturned by the highest court thus judicially exonerating the guilty and this would also politically entrench the Jamaat ideologically and organisationally. Politicisation of Bangladesh’s judiciary and its manipulation have been a major concern for those who want this trial to be concluded in an impartial manner.

The government also failed to project the image of the ICT as an impartial adjudicator. The chief investigator of these trials, Abdul Matin, had to resign in 2010, soon after the constitution of the War Crimes Tribunal, for his alleged links with the Islami Chhatra Sangha, the then student wing of the Jamaat-e-Islami. Some vested groups have continuously attempted to create confusion regarding the impartiality of these trials by terming the whole exercise as being politically motivated. The most prominent of these attempts was the media hype given to the controversy surrounding the conversations between a judge of the Tribunal and a Brussels-based Bangladeshi lawyer leading to his resignation. One of the witnesses was abducted from the Tribunal premises on November 5. Such incidents create doubts regarding the functioning of the ICT. For the past many months, the Jamaat has attempted to delegitimise the trial process by terming it politically motivated and demanding the release of its leaders accused of war crimes. On this issue it has the tacit support of the BNP, its alliance partner.

Role of External Forces

FROM the very beginning there have been pressures on the Awami League Government not to pursue the War Crimes Trial. Mirza Zia Ispahani, who visited Dhaka as a special envoy of President Zardari of Pakistan, said that the time was not ripe to try the war criminals. This has been a major issue between Bangladesh and Pakistan. Dhaka has always remained steadfast in its demand for an apology from Pakistan for the crimes committed by its Army in 1971. This has been a sore point between the two countries and has put a shadow on their bilateral ties. President Abdullah Gul of Turkey also wrote a letter to President Zillur Rahman last year requesting him not to pursue the war crimes’ issue and sought clemency for the accused.

Such pressures also reflect the support that the Jamaat has managed to garner from among the international community. The Al Jazeera news channel too aired a news last year saying that Golam Azam’s trial may create political instability. The Jamaat has always threatened the govern-ment and international community of civil war if the trials against its leaders are not suspended. Also at the same time it has campaigned and created doubts regarding the impartiality of the ICT. The Awami League has managed to rebuff the pressure and this time is determined to go ahead with the war crimes trial.

The Jamaat has close links with many Muslim countries and has actively campaigned with them to stall this trial. Some also felt that the trial will open old wounds which will not be good for the future of Bangladesh as they feared a civil war might break out given the ideological faultlines. Though there has been pressure on the government to ban the JI as an organisation for its role in the 1971 war, the government has been a bit reluctant on this score. It has already passed suitable amendments to prepare the ground for banning the Jamaat. But it seems the it is still watching the situation. In spite of the Supreme Court’s verdict declaring the Fifth Amendment to the Constitution illegal, the government while moving 15th amendment to the Constitution did not ban the religious political parties while it restored parts of the original 1973 Constitution. The government may plan to use the threat of ban as a political ploy to pressurise the Jamaat to participate in the election if the BNP does not agree to cooperate with the government in conducting the next election scheduled for the end of this year or early next year. The Awami League has its own agenda in concluding the trial. As has been mentioned earlier, the movement in favour of the trial of war criminals has been a civil society-driven initiative. They had fruitfully campaigned in its favour in 2008.

It is important that the trial remains trans-parent and its verdict meets the international standard while delivering justice. While it is important that this episode of the liberation war needs to be closed ultimately paving the way for reconciliation, it is equally significant to keep the process of trial fair. Otherwise, this trial, rather than healing the wounds, will open up new faultlines and do more disservice to the nation. The successful conclusion of the war crimes trial will hopefully give faith to millions of Bangladeshis of justice done even if after forty-two long years. ï ®

FOOTNOTES

1. As cited in Julfiqar Ali Manik, “The Trial we are Still Waiting For†, Forum, Daily Star, 3(12), December 2009, http://www.thedailystar.net/forum/2009/december/trial.htm

2. http://www.jamaat-e-islami.org/en/articlepdf/110_manifesto%20in%20english.pdf

3. http://www.thedailystar.net/beta2/news/jamaat-supportersnew-propaganda/

4. “Jamaat Makes ALmen ‘Muslim’†, Daily Star, March 15, 2013, http://www.thedailystar.net/beta2/news/jamaat-makes-al-men-muslim/

5. “BNP Cautiously Welcomes Shahbag Protests†, February 12, 2013, HYPERLINK "http://bdnews24.com/politics/2013/02/12/bnp-cautiously-welcomes-shahbag-protests" http://bdnews24.com/politics/2013/02/12/bnp-cautiously-welcomes-shahbag-protests

The author is a Research Fellow, Institute for Defence Studies and Analyses, New Delhi.