In a stately colonial building in central Dhaka, on 26 July 2010 Bangladesh’s International Crimes Tribunal granted the prosecutors’ request to issue arrest warrants for four individual suspects on charges of committing genocide, crimes against humanity and crimes against peace. A further case against a fifth individual was also opened by the court.

By Caitlin Reiger

The International Crimes Tribunal is a landmark effort to deal with the legacy of the atrocities that occurred during the conflict that accompanied Bangladesh’s independence from Pakistan, atrocities which remain largely unknown outside the region.

The long road to justice started back in 1947 when the partition of India created a single country of Pakistan out of two primarily Muslim territories separated by 1,600 kilometres. Many in Bengali East Pakistan resented the concentration of economic and political power in West Pakistan and tensions steadily rose.

In 1970, the Awami League (AL), led by Bengali nationalist leader Sheikh Mujibur Rahman (Sheikh Mujib), won an overwhelming victory in the Pakistan general elections. However, the West Pakistan-based leadership refused to hand over power. In March 1971, they arrested Sheikh Mujib and launched a major military campaign throughout East Pakistan known as Operation Searchlight.

Members of the Pakistani armed forces with the aid of local auxiliary forces and militia groups, conducted widely documented massacres, torture, forced displacement, destruction or confiscation of property, disappearances, and widespread sexual violence. Bengali nationalists were targeted, along with Hindu communities, students and Bengali intellectuals.

The armed resistance forces, known as Mukti Bahini, or “freedom fighters”, conducted a guerilla campaign along the Indian border. Ten million refugees fled to India. The bloodbath lasted until December 16, 1971, when India invaded and defeated the Pakistani forces. An estimated 3 million people were killed in what has come to be known as the “Liberation War”.

Justice was an immediate priority for Bangladesh’s post-independence government. Large numbers of low level collaborators with the Pakistani forces were arrested and punished. In July 1973, the International Crimes (Tribunals) Act, 1973 was passed, primarily with a view to prosecuting 195 Pakistani military officers suspected of crimes. The purpose of the act was “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.”

However, Bangladesh’s new leaders soon reached a compromise with Pakistan and India that saw the release of the 195 suspects along with many thousands of civilians and PoWs being held by the various parties. It paved the way for Pakistan’s recognition of Bangladesh’s independence.

By 1975, the collaborators law had been repealed and a policy of forgetting Bangladesh’s traumatic past prevailed. All the while, the International Crimes (Tribunals) Act lay dormant on the country’s books. But in December 2008 Bangladesh’s general election saw the issue of justice for the victims of 1971 resurface as a campaign promise by the Awami League. It went on to a decisive victory under the leadership of Sheikh Hasina, the daughter of Sheikh Mujib.

In March 2010 the government announced the establishment of the tribunal with the appointment of three judges, a Registrar and administrative staff. A team of prosecutors, supported by police investigators, have now commenced work and investigations are under way. Special rules of procedure were promulgated in mid-July and to date arrest warrants have been issued for five suspects, all of whom are currently in custody although they were first arrested on other charges.

The tribunal has been the subject of bitter political debate within Bangladesh, with the political opposition denouncing it as a politicised attempt by the Awami League to delegitimise its opponents, particularly Jamaat-e-Islami, for its pro-Pakistan stance in 1971. All five individuals currently before the tribunal are senior figures in Jamaat, and have been the subject of public speculation in the past regarding their role in the atrocities.

Major questions remain, however, as to whether the trials will be considered fair – both within Bangladesh and among international observers. Defence lawyers have already filed a constitutional challenge to the 1973 Act before Dhaka’s High Court.

While the Act may have been ahead of its time in 1973, it looks quite different in 2010. International criminal law has developed considerably in the intervening period, and international human rights law now clearly demands higher minimum guarantees of due process. Despite national and international calls for a more comprehensive review of the 1973 Act, the national parliament hastily adopted only a minimal set of amendments in 2009. The possible application of the death penalty is another major obstacle for many would-be international supporters of the process.

The developments in Bangladesh illustrate the complexity of crafting effective national solutions to the legacy of mass atrocities. The real questions about the fairness and independence of the process deserve urgent responses and much is resting with the newly appointed judges. Yet one thing is already clear – the impunity that has dominated Bangladesh’s recent history is facing a serious challenge despite a break of 40 years.

Caitlin Reiger is Director of International Policy Relations, International Center for Transitional Justice.

Keywords/Tags: History, International Crimes Tribunal, International justice