FORTY YEARS ON: MEMORY AND JUSTICE
I am extremely grateful to the Liberation War Museum for this invitation, in particular because it brings me to Dhaka exactly forty years from when I was here as one witness of momentous events. On 23 March 1971, I was outside the house of Sheikh Mujibur Rahman as he responded to those gathered to greet him on Resistance Day, as Pakistan Day had been re-named by the Awami League. That 25 March, the last person I called on was Professor Munier Chowdhury, someone I had come to admire greatly, in the University of Dhaka teachers’ quarters. That evening, the last effort that colleagues and I made to drive back into the centre of what was then a small city from Gulshan, where we were staying, was impeded by one of the many road blocks that local people were putting up in response to the word that Yahya Khan had left Dhaka, negotiations at an end. As we drove back towards Gulshan, we saw Pakistan Army tanks rolling out of the cantonment. That night, we stood on the roof of our guest house, listening with helpless horror to the automatic weapons fire and explosion of shells, and watching the evidence in the sky of the attack, which we realised was targeting the University, as well as the East Pakistan Rifles Cantonment and the Police Lines. Close by us, troops sent to arrest an elected Awami Leaguer gratuitously murdered staff at his house when they found him gone. A senior colleague assisted the escape of someone who was and is one of Bangladesh’s leading intellectuals from his house nearby. Soon after the curfew had been lifted, we drove around Dhaka again: when I had last done so on 25 March, I had – as so often before – looked across to the Kali Mandir in the middle of the Race Course; now it had been obliterated. Gradually we came to learn of the manner in which the assault on the university had focused not only on the centre of student resistance at Iqbal Hall, but also on the deliberate slaughter of Hindu teachers, students and staff, while similar targeting of Hindus was taking place elsewhere in the city. Nine long months later, after the surrender of the Pakistan Army in December, I would learn that Professor Munier Chowdhury was among those intellectuals rounded up and murdered as the Indian Army and Mukhti Bahini drew near to Dhaka.
It is an element of the definition of crimes against humanity that they are committed as part of a widespread or systematic attack on the civilian population. It is an element of the definition of genocide that it involves intent to destroy, in whole or in part, a national, ethnic, racial or religious group. I believe that these elements were present from the very beginning of the operations carried out by the Pakistan Army and its collaborators. Among the first to use the word “genocide” were the officials of the US consulate in Dhaka, in the admirable 6 April 1971 cable of dissent sent by Consul Archer Blood and joined by South Asia specialists in the State Department. I am one of those who believe that it is not useful to extend the term “genocide” to the intention to destroy a political group, and certainly that was explicitly excluded from the Genocide Convention. But while ultimately these are matters for a court, I believe that the 1972 report of the International Commission of Jurists was right to conclude that there was a strong case not only that the Pakistan Army and its collaborators had committed war crimes and crimes against humanity, but that acts of genocide had been perpetrated against Hindus.
My notes of my days in Dhaka in March 1971 were taken from me when I was searched by Pakistan security before boarding a flight back to Islamabad, and only once was I able to return to Dhaka in the months that followed, and once to see for myself the refugee camps in West Bengal and visit friends at Mujibnagar. Nonetheless, I could play a small role in channeling information coming from foreign and Bengali contacts to the diplomatic community, as debates raged inside both the American Embassy and the British High Commission about their governments’ policy in response. That summer, I lobbied British parliamentarians in London, and published an article in the New Statesman, my authorship disguised as “A Pakistan Correspondent.” My employer, the Ford Foundation, swiftly concluded that it was only a matter of time for the detachment of East Bengal from Pakistan to be complete; it decided to try to sustain its agricultural research projects to build for future requirements, and enabled academic organizations in the US and UK to provide financial assistance and other support to Bengali scholars who had become refugees. As my own contract was coming to an end, I volunteered my services as Secretary to the Commission of Enquiry which the International Commission of Jurists (ICJ) had decided to establish. The Pakistan Government denied access to the Commission, but we planned to visit India to collect information from refugees. I was in New York, helping to raise funding for the enquiry, when war was declared between Pakistan and India, and I was in the public gallery of the United Nations Security Council to witness Zulfikar Ali Bhutto’s histrionics – little thinking that decades later I would be briefing the Council in that same chamber on events in East Timor, later Timor-Leste, and Nepal. The ICJ Enquiry was thus overtaken by events, and I left others to be responsible for the legal analysis it later published, to which I have already referred. In January 1992, the Ford Foundation asked me to travel to Dhaka to discover the fate of its national staff and projects, which was what I most wanted to do, also in order to discover the fate of my Bengali friends. A couple of months later, I accompanied a senior colleague when were received by Prime Minister Sheikh Mujibur Rahman, to seek and obtain a welcome for the resumption of Foundation assistance, and I then spent most of the year 1972 in independent Bangladesh, reopening its office to be ready as government attention moved beyond the immense humanitarian and reconstruction needs to longer-term development.
My role was a very minor one, and the word “memory” in the title I chose is not intended to refer to my own, which is fortunate for us all: my memories of this period are of little or no significance when compared with the wealth of testimony which courageous journalists conveyed to the world in 1971, and which over the years has been recorded from victims and their families, much of it now in the collection of this Museum. But they explain why I have shared the dismay and frustration which others in this room must have felt over the decades, as the world outside Bangladesh cared so little that the crimes of 1971 should be addressed, or actively opposed it. As the new Government of independent Bangladesh came under international pressure, the Pakistan Army officers were repatriated, and the justice system was in no position to cope with the thousands of alleged collaborators, whose continuing detention without trial became subject to criticism by the organization I was later to join, Amnesty International. And all too soon there were new human rights violations to combat. Before long, Amnesty International was protesting the detention without trial of large numbers of left-wing critics of the Government, under the 1974 Special Powers Act – still alas in force today – and then under a state of emergency. After the assassination of Sheikh Mujib, martial law courts which could and did impose the death penalty operated under Major General and then President Ziaur Rahman; Colonel Abu Taher and hundreds of others were executed after secret trials, and Amnesty International estimated between 10,000 and 15,000 political prisoners. To call these executions legalized murder is to underestimate the rule of law: I am delighted that today the High Court has ruled that Colonel Taher’s trial and execution were unconstitutional and illegal. More such executions were carried out after the assassination of President Zia, and the further period of martial law under Lieutenant General Ershad again saw military courts and use of the Special Powers Act to hold large numbers of political detainees without trial. Extrajudicial executions by security personnel in the Chittagong Hill Tracts emerged as a further human rights concern.
As a Labour Party activist in London during the years of martial law, I became a channel to ensure awareness of these violations, and solidarity with their victims and with those struggling to assert democracy. In 1985, my ability to take up this agenda became more direct as I went to work for Amnesty International, and my periodic visits to Bangladesh became official ones. Late that year, I and my colleague responsible for our research on Bangladesh took shocking testimony of torture of political activists in army custody under the martial law regime. I well recall the night when DGFI (Directorate General of Forces Intelligence) officers entered the house where we were interviewing students who had been severely tortured; I am not sure whether we or they were the more surprised, but they were certainly the ones who were embarrassed. In 1988, I was able to head the first human rights mission to the Chittagong Hill Tracts, as well as to press Amnesty’s other concerns with then President Ershad and his Government.
In many contexts elsewhere, the human rights community has simultaneously protested violations in the present and demanded justice for past crimes: indeed, it is our central tenet that continuing impunity undermines respect for rule of law today. I have therefore puzzled over the reasons why this has been so little a feature of this community’s engagement with Bangladesh. Perhaps one part of the answer is that so few of the human rights organizations working internationally today existed in 1971. Amnesty International itself was a small organization, which only that year hired its first researcher to cover South Asia. Its mandate was essentially focused on prisoners, and only at the beginning of the 1980s did Amnesty International, and indeed the United Nations human rights system, begin to focus on extrajudicial executions or political killings by governments. Thus the world of non-governmental human rights and transitional justice organizations has for the most part not carried within itself the memory of researching and protesting the crimes of 1971, as it does when they have been carried out more recently on their watch. But I remain perplexed that most well-informed people of strong human rights commitment, if asked to cite the genocides and mass atrocities of the twentieth century, will not think to include East Bengal 1971. Perhaps the most widely-read recent book on genocide, Samantha Power’s A Problem from Hell, has just one paragraph on Bangladesh, although it amply deserves to be fully analysed within her theme of successive failures of US administrations to act to prevent such atrocities.
All the more credit, therefore, goes to those who have laboured to keep alive the memory of 1971, and I pay deep tribute on this anniversary today to the founders of this Liberation War Museum and all who have made their vision a reality. When I was in Dhaka at the time of the election at the end of 2008, I was astonished, and delighted, to discover how strongly the memory of 1971 and the demand for justice had become an issue in that election – all the more powerfully because it had found resonance not only among those with personal memories of 1971, but among a younger generation. Even this remarkable feature of the election, and the commitment of the Government elected then to holding war crimes trials, has done little to cause the world outside Bangladesh to be reminded what happened in 1971: the first major article in a leading newspaper appeared in the New York Times only earlier this month, and welcome as that was, it did not mention either the targeting of the Hindu population or the murder of intellectuals.
So the first message I should like to convey today is one for the international community. We increasingly demand that there should be justice for grave human rights violations. Major resources have been devoted to investigating and prosecuting war crimes, crimes against humanity and genocide in the former Yugoslavia, Rwanda, Timor-Leste, Sierra Leone, Cambodia, and now by the International Criminal Court (ICC). The accepted objective, reflected in the ICC’s principle of complementarity, is that wherever possible, justice should be done within domestic processes; only where a state is unwilling or unable to investigate and prosecute such crimes itself should they pass to international jurisdiction. In practice, only a handful of cases will be tried by the ICC in the coming years, important as it is as a deterrent, and there will be no more ad hoc international tribunals: doing justice will depend on national processes. All too often the national will does not exist: in Nepal, where I was working for the United Nations as the armed conflict came to an end, not a single person has been brought to justice for the major human rights crimes committed on both sides of a ten-year armed conflict between the Maoists and the state. Today in Bangladesh a war crimes process has been launched with strong public support, and given the enormity of the crimes committed in 1971, this is of historic importance, not only nationally but internationally.
Bangladesh deserves recognition, too, as a pioneer in regard to the prosecution of crimes against humanity. Its International Crimes (Tribunals) Act was adopted 37 years ago, after consultation with leading international lawyers. As legal scholar Suzannah Linton has written, that Bangladesh chose to adopt such a law in 1973 is indeed “remarkable and admirable”: it was a progressive law for its time. It has taken a long time for crimes of sexual violence to receive the emphasis they demand in international justice, but the drafters of the 1973 Act rightly included rape among the international crimes to be prosecuted, as was indeed imperative in view of its terrible prevalence among the crimes of 1971. Bangladeshi lawyers contributed to the early movement for an International Criminal Court, hosting the Third International Criminal Law Conference in Dhaka in December 1974. It is fitting that under the present Government Bangladesh has become the first South Asian state party to the Statute of Rome.
But all the more because Bangladesh played a significant early role in the development of international criminal justice, it should have no reluctance in benefiting from the tremendous advances in international criminal justice over the past 37 years. My second message therefore is one for Bangladesh itself: it is essential that in both its legal framework and in the practice of detention, investigation, prosecution and trial, its war crimes trials fully reflect international standards of due process and human rights. I am not a lawyer, but I know that lawyers in the transitional justice and human rights organizations which fully share the goal of justice for the mass crimes of 1971 have serious outstanding concerns, despite amendments in the Act which have improved the level of protection for accused persons. The current law as yet falls short of providing the guaranteed protections of fundamental rights which are the minimum standards for fair trial under international law by which Bangladesh has bound itself. These concerns relate to precise definition of the crimes and admissible defences, and the right to seek judicial review of any aspect of the legal regime that will preside over the trial. They include the need for safeguards against arbitrary detention; fair trial guarantees such as the right to effective counsel throughout pre-trial phases as well as at trial; issues regarding procedures and standards of evidence; and sufficient time, resources and procedural protections to present an adequate defence. The US war crimes Ambassador, Stephen Rapp, – who unlike me is a lawyer, and one very experienced in the prosecution of international crimes – has recently suggested that many of these issues can be addressed through development of the Tribunal’s rules of procedure. I understand too that consideration is being given to how to strengthen the protection of witnesses and the representation of victims in the proceedings, especially as regards the victims of sexual violence. In this connection, it is good to learn that women are now to be represented among the prosecutors and investigators.
I know that this Museum itself is playing an important role in civil society efforts to support and improve the process of war crimes trials, and I very much hope that further such improvements will be made. It will be a tragedy for all of us here today and for Bangladesh as a whole, if those whose commitment to justice leads them to want the trials to succeed feel compelled to become their critics, and if they give rise to continuing national controversy. And for many of us in the human rights community there is another inhibition: the potential application of the death penalty. As Secretary General of Amnesty International, I have campaigned against the death penalty unconditionally in all countries, from Iran to the United States, and for all crimes. I recognise that while Bangladesh retains the death penalty for the worst among ordinary crimes, many victims and others will feel that it should be available for the most heinous crimes of 1971. But surely Bangladesh has seen too much killing, and my brief recollection of its unhappy human rights history is a reminder that many executions have simply been murder by those in control of the machinery of the state. Even for those who do not oppose the death penalty in principle, would it not emphasize the exceptional gravity of the murder of Sheikh Mujibur Rahman, and open a new chapter in the respect for life, if after the executions of his killers there could be a decision to end executions in Bangladesh?
I want to add one point regarding the climate around the war crimes trials. There will be accusations that this is a politicized process – indeed there already are such accusations. Persuasive rebuttal of this charge will depend not only on the impartiality and due process of the war crimes trials themselves, but also on the extent to which the general climate prevailing in Bangladesh is seen as one of tolerance of political differences, past and present, consistent with principles of pluralism, multi-party democracy and respect for the role of a free civil society. And just as continuing impunity for past crimes undermines respect for rule of law in the present, so too impunity for human rights violations today will undermine the credibility of the process of justice for the crimes of the past. It is depressing for me, nearly two decades after I left Amnesty International, to read of continuing cases of torture and deaths at the hands of the security forces in circumstances which cry out for proper independent investigation and action against those responsible for abuses. And Bangladesh has seen too many successive governments whose supporters act outside the law with impunity. The test of a government’s commitment to the rule of law is its impartial enforcement against supporters and opponents alike, with due process for both.
In one crucial respect the current war crimes trials will be quite unable to end impunity for the crimes of 1971 – and that is because those with the greatest responsibility are beyond their reach. In 1999, I was besieged in the UN compound in East Timor while the Indonesian military and the East Timorese militia they had created committed crimes against humanity around us, so for me there is an unhappy parallel: many East Timorese who were minor perpetrators were convicted and briefly imprisoned, while the Indonesian officers who directed or failed to try to prevent the crimes remained free, ultimately acquitted in human rights trials in Indonesia which a United Nations Commission of Experts described as “manifestly inadequate.” Even less has been done in Pakistan. The Hamoodur Rahman Commission belittled the crimes with a derisory estimate of the number of victims killed by the Pakistan Army and its collaborators. But it did at least recommend that “a high-powered Court or Commission of Inquiry be set up to investigate into persistent allegations of atrocities said to have been committed by the Pakistan Army in East Pakistan during its operations from March to December 1971, 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.” That was in 1974: you do not need me to tell you that no such action has been taken.
This leads me to one final reflection. Even the most successful series of war crimes trials can hardly begin to present anything like a total account of what happened in 1971. Besides those who are out of reach in Pakistan, many others of the perpetrators are no longer alive. In many instances, while investigators compile the grim list of killing fields and testimony regarding the nature of crimes committed is available, there will no longer be evidence sufficient to establish individual criminal responsibility and thus to take to court. Only a limited number of perpetrators can in practice be prosecuted. The evidence heard in court will largely be confined to the acts of individuals; although the larger context must be presented in order to establish crimes against humanity or genocide, it will stop short of a full picture. This, I believe, argues the case for a broader truth-seeking process.
Again I offer the case of Timor-Leste, where a truth commission has established an outstanding history of human rights crimes going back before the Indonesian invasion of 1975, including the most authoritative estimate of the numbers who died. Several of its features are worth considering in the context of Bangladesh. Its public hearings, like those in South Africa, were broadcast widely. They addressed the role of external actors as well as of East Timorese, and not only of Indonesia and Portugal, the former colonial power, but also of the United Nations, Australia and the United States. An impressive feature of the East Timorese process was the acknowledgement of mutual killings and other human rights violations among the Timorese themselves before Indonesian occupation; in Bangladesh, an acknowledgement of the truth of 1971 must include the killings of innocent Biharis and of alleged collaborators, without in any way equating this with the crimes against humanity directed by the Pakistan Army. The Government and Parliament of Timor-Leste have been regrettably slow to follow up on the recommendations of the commission, including the rights of victims to reparations and the use of the commission’s findings in public education. But civil society is ensuring continuing public education, and the premises used by the commission – a former colonial prison where independence activists were imprisoned and tortured – has become a museum, analogous in many ways to this Liberation War Museum.
There are serious issues to consider before embarking on a truth-seeking process. First, it should be clear that it is not an alternative to and does not conflict with prosecutions of perpetrators where these can be achieved. However, there are practical issues to be addressed when prosecutions and a truth-seeking process operate simultaneously, and the experience of countries where this has occurred, such as Sierra Leone and indeed Timor-Leste, can inform this. A truth commission requires substantial resources, and is not to be launched without a sustained and preferably all-party commitment. And most crucial of all is the credibility of its commissioners, who must be seen to be independent and objective, and certainly not drawn from only a limited political spectrum: useful experience is available of processes of selection of commissioners which can enhance their credibility. Two governments, in Haiti and Sierra Leone, invited international participation when they established truth commissions. Timor-Leste went on from its own truth commission to establish a “Commission of Truth and Friendship” jointly with Indonesia; there are many reasons which I will not go into here why this is not a good precedent, but it did at least result in official Indonesian acknowledgement of the nature of the crimes its army committed. Thus it provokes the question whether one day Pakistan, or at least some citizens of Pakistan, can be part of a process of acknowledging the truth. So perhaps the Liberation War Museum can lead a further debate as to whether the objectives to which it is dedicated would be well-served by the establishment of a truth commission.
In any event, you are able to build on an extraordinary achievement of having kept memory alive in Bangladesh, and of conveying the truth and the demand for justice to a generation which was not alive to experience the events of 1971 directly. This is indeed such an achievement that I urge you to analyse and explain to the world how it has come about. How much is due to the strength and richness of Bengali culture, which during this month forty years ago was liberated to express itself in a remarkable outpouring on television and elsewhere, and to the continuing role of art, drama, literature and music? How much is due to memory within families, and memory conveyed to wider audiences through personal memoirs of 1971? How much is due to social media, which have made truth increasingly hard to conceal, as political elites are today discovering all around the world?
One part of the answer of which I am certain is that the Liberation War Museum has itself played an important role in this achievement, and it is truly a privilege to be able to express publicly my congratulations on your fifteen years of dedication to memory and justice.
* Anniversary Lecture, Liberation War Museum, Dhaka, Bangladesh