Abstract
The aim of this paper is to examine the trial process and standard of the International Crimes Tribunal (ICT) in Bangladesh. The main aim of the paper is to explore whether the trial is about justice or politics. Two International Crimes Tribunals (ICTs) have been established following the amended ICT Act 2009 after 40 years of independence. To date, more than 30 verdicts have been delivered by the tribunals and most of the accused have been proved to be war criminals, as collaborators with the Pakistani army, and involved in the politics of Jamaat who have penalized for capital punishment. Jammat is name of a political party in Bangladesh. Although the tribunal is named ‘the International Crimes Tribunal’, no international judges or prosecutors – like those who have taken part in the tribunals of Nuremberg, Tokyo, Rwanda, Yugoslavia or the permanent International Criminal Court of The Hague – have been involved in this trial process. The Pakistani military who were involved and accused as war criminals have also been excluded from prosecution. Therefore, a lot of criticisms have made about the trial process and standard; however, some unique features can be found, such as an appeal to the Supreme Court and a mercy petition to the President. It has also been proved that politics are involved in the war crimes and even the trial process, which is not influenced solely by the abstract notions of justice. The paper takes the form of a descriptive case study and is based on mainly secondary sources of information.
Introduction
Bangladesh emerged as an independent state in December 1971 from the colonial rule of the British and Pakistan over two centuries. Before departure from this area, the British divided the subcontinent into two independent countries – India and Pakistan – in August 1947 (Miah, 2013: 7). Unfortunately, however, Bangladesh remained under Pakistan as East Pakistan. Pakistan also ruled Bangladesh for around 30 years, like the British, and deprived Bengalese people through all kinds of discrimination, such as political, social, economic, educational, employment and other basic rights. They even tried to establish Urdu as the state language of Pakistan, although Bengali was the language of the majority (54%) of the population of the whole of Pakistan. Apart from this, the general elections of 1970 had made Sheikh Mujibur Rahman, the leader of the Awami League – he captured 167 seats out of the 169 allotted for East Pakistan – but the Pakistan military ruler Yahiya Khan refused to transfer power to the majority leader, Sheikh Mujibur Rahman, and his party (Banglanews, 2014). As a reaction to this refusal to hand over power, mass protests and civil unrest erupted across East Pakistan, and this turned into a war of independence. During this war, ‘three million people lost their lives, ten million fled across the border to India as refugees and around [a] quarter [of a] million women were raped including twenty-five thousands of pregnancies [sic]’ (D’Costa and Hossain, 2010; Kabir, 2016; Linton, 2010: 194;). Also, 65 million people were kept as prisoners in their own home within the country. In this paper, the following sections highlight the nature and types of war crimes and the violations of human rights that took place in Bangladesh during the war in 1971. To what extent the trials for these offences have taken place and how far justice or politics have been involved in the trial process is also been analysed below.
War crimes and violation of human rights in Bangladesh in 1971
The war crimes that took place in Bangladesh have been recognized worldwide, and are considered to be one of the most heinous forms of the violation of human rights, which deserve trials to prove the accountability of the offenders and to ensure justice for the victims and to free the nation from this malicious curse (Hossain, 2008). In Bangladesh, the people were divided by two types of political ideology – the politics of independent Bangladesh, led by the Awami League, and anti-independent politics led by Jamaat-e-Islam, supporters of Pakistan. The definition of war crimes is tenuous and there is no universally accepted description, which can lead to difficulties in attempts to prosecute suspected war criminals. Crimes of war are serious violations of the established rules, treaties and laws related to international humanitarian law (e.g. the Geneva Convention), for which there is individual responsibility (Shaw, 2008). War crimes include rape, genocides, murder, forced slave labour, the ill-treatment and killing of prisoners, the destruction of cities, towns and villages, and any devastation and inhuman activities not justified by military or civilian necessity (Gary, 2010; Anderton, 2014). It is also pertinent to ask who should be considered as a war criminal. A war criminal is someone who has been convicted of war crimes which violate the international treaties and rules of engagement during the war period. In this study, war criminals are considered to be those who have committed the above-mentioned crimes during the war period. Usually, war criminals are prosecuted by special courts or tribunals established by especially enacted laws and conventions of a nation, and members of the military and also civilians can be prosecuted for war crimes (Rahman and Billah, 2009). In Bangladesh, various types of war crimes committed by the Pakistani military and their collaborators (of Bangladeshi origin, e.g. Razakar, Al Bador and Al Shams) during the nine-month-long war of independence in which three million people lost their valuable lives (D’Costa and Hossain, 2010; Linton, 2010; Rahman and Billah, 2009). The nature and types of war crimes and violation of human rights which were committed in Bangladesh in 1971 are briefly analysed below.
Rape and genocide are the two worst forms of the violation of human rights in the world (Halder, 2012). During the war period two lac (200,000) women were raped and 25,000 were made pregnant by the Pakistani military with the cooperation of Bangladeshi collaborators, which has been mentioned previously (D’Costa and Hossain, 2010; Linton, 2010). Although these figures have been criticized by a few scholars, including Bose (2005), and the numbers have varied from study to study, most studies have accepted theses statistics, and also that around 10 million people fled across the border and took shelter as refugees in India (Kabir, 2016; Mascarenhas, 1971: 112–120; Rahman and Billah, 2009). Whether the number of rape victims is accurate or not, this is not the issue; the fact is that the brutality of rapes and killing did take place during the war in Bangladesh, and that was a grave violation of human rights that deserves a fair trial. The nature of the rapes in Bangladesh involved very malevolent violence (e.g. beatings, cuttings and the forceful insertion of objects into the vagina) and gang rapes that often took place in front of the victims’ husbands, children or parents (Halder, 2012; Rahman and Billah, 2009). Victims of different ages, but mainly young girls from schools, universities and colleges, were brutally gang-raped and tortured. A sweeper (toilet cleaner) of Rajarbag Police Line (head quater of Bangladesh Police), Rabeya Khatun was a witness. Rabeya Khatun’s statement is powerful evidence of the brutality of the Pakistani forces: She witnessed Pakistani soldiers [who] used to stab women and cut their breasts, some push their sticks into their vagina. Some brutal soldiers liked to celebrate by cutting flesh from their hips, some liked to bite their breasts scratching flesh from the bodies. Sometimes the victims used to cry in severe pain. The soldiers used to push iron rods into their vagina and kill them brutally. The hands of each and every woman were tied behind their backs. They were the victims of regular torture. Parts of their bodies became mutilated. Some lost their teeth, some received severe wounds on their lips, and fingers of some women were fractured due to regular torture by the soldiers with sticks and iron rods. There are also reported cases, where victims had committed suicide following her rape. (Halder, 2012)
In addition, looting (robbery) of gold, money and other valuable resources of minorities, the destruction of their houses, and genocides were major war crimes. According to a report in the Sydney Morning Herald on 29 March 1971, 10,000 to 100,000 people were killed; however, The New York Times reported that by 1 April 1971, 35,000 people had been killed in Dhaka during Operation Searchlight (Rahman and Billah, 2009). The war began on 25 March 1971, and by 1 April (within only six days ) around 100,000 people had been killed in Dhaka City alone (Kabir, 2016). During the war period, the Pakistani army and its local collaborators carried out the systematic execution of leading Bengali intellectuals including 991 teachers, 13 journalists, 49 physicians, 42 lawyers, and 16 writers, artists and engineers (Khan, 2003).
Thus, genocide was carried out all over the country for nine months by the Pakistani military with the cooperation of the Bangladeshi collaborators mentioned above who were against an independent Bangladesh. Accordingly, violations of human rights occurred in Bangladesh during the war period, and these deserves a fair trial to ensure justice for the victims and to enforce punishment of the criminals. Therefore, after the independence of Bangladesh, the establishment of an independent war tribunal was essential for fair trials to take place. How far that aim has been a success has been discussed below.
The politics of establishment of International Crimes Tribunal (ICT) in Bangladesh
Immediately after the independence of Bangladesh, there were high expectations that those responsible for the atrocities would be prosecuted (D’Costa and Hossain, 2010). Therefore, in the immediate aftermath of the war, a Special Tribunals Order 1972 (the 1972 Collaborators Act’) came into force through Presidential Order No. 8 of 1972 (Linton, 2010). After the General Election of 1973, the parliament approved the order and renamed it as the International Crimes (Tribunals) Act, 1973 (ICTA, 1973) to try those responsible for atrocities during the Liberation War (D’Costa and Hossain, 2010; Jalil, 2012; Linton, 2010). The tribunal under section 1 of the ICTAA (2009) (Bangladesh) has jurisdiction to try to punish anyone who was a member of any armed, defence or auxiliary forces and who has committed war crimes or crimes against humanity (ICTAA, 2009).
Under section 1 of the International Crimes Tribunals Act (ICTA) 1973, thousands of people were investigated, including Pakistani army officers and many of the leaders of the auxiliary forces (Razakar, Al-Badar, Al Shams, etc.) who had fled; some 92,000 Pakistani prisoners of war (PoW) were held in India, along with civilians (D’Costa and Hossain, 2010; Jalil, 2012): There are conflicting accounts about the trials that were held under the 1972 Collaborators Act. One account is that the trials took place over 6 months and then ground to a halt. Another account is that proceedings were taken against eleven thousand Bangladeshi suspects in custody, and by 1975, seventy-three tribunals had been constituted. Another account, by the same author, in the same paper, is that thirty-seven thousand and four hundred thirteen people were arrested under the Act and tried, with 2,848 cases completed. Another source says that some 30,471 persons were charged, of whom 2,848 were tried, 752 convicted (one to death) and 2096 acquitted. It seems that, at that time, the trials were regarded as problematic because of systemic flaws in the justice system, and also the difficulty of substantiating charges against the alleged collaborators. (Linton, 2010: 206)
Following the conflict, India and Pakistan signed the Shimla Agreement on 2 July 1972 which, emphasized commitments to pursue regional stability and mutual respect. As a ‘gesture of goodwill’, India then began the repatriation of the 92,000 PoW and also civilians (D’Costa and Hossain, 2010). After the investigation, war crimes charges were proved against 195 Pakistani army officers, and about 100,000 Bengalies were arrested in Bengladesh but only 752 people were found guilty of collaboration and they were given jail sentences for different periods (Jalil, 2010, and 2012). Thus, plans to bring the perpetrators to justice were overturned by post-war agreements between India, Pakistan and Bangladesh, which led to India repatriating prisoners of war implicated in war crimes to Pakistan (Chopra, 2015).
On 30 November 1973, the government announced a general amnesty for those among the arrestees under the collaborators’ order not charged with specific allegations of war atrocities (Linton, 2010). A press statement on the general amnesty categorically said that those who were punished for or accused of rape, murder, and attempts to murder or arson would not come under a general amnesty (Kabir, 2008). After the declaration of a general amnesty, 26,000 out of 37,000 prisoners were released and exempted (Kabir, 2008; Linton, 2010). In addition, 195 Pakistani war criminals were accorded an amnesty and were safely returned to Pakistan after the establishment of a tripartite agreement between Bangladesh, India and Pakistan in 1974 (Jalil, 2010, 2012). Apart from this, 11,000 war criminals were imprisoned and their prosecution was ongoing until the brutal killing of Prime Minister Sheikh Mujibur Rahman with his family members by the military coup of 15 August 1975 (Linton, 2010). However, on 31 December 1975, the Chief of Military General Ziaur Rahman abolished the collaborators’ act and stopped the trial of the war criminals (Kabir, 2016). The politics of stopping (registance to go ahead) war crimes trial started since the inception of General Zia in state power. He had upheld most of the Jamaat leaders who were collaborators with the Pakistani army and created an indemnity law to stop the war crimes trials.
Since then, several governments came to state power in Bangladesh (Zia, Ershad, Khaleda and Hasina) but none of them took any initiative to bring war criminals to trial until 2009. Furthermore, no case had been filed against any war criminals in any court or police station in Bangladesh by this period (Jalil, 2012). However, the demand for trials of war criminals was mounting from various civil society groups, various cultural organizations, and the families of victims of the war. Some of those organizations can be mentioned as examples: a forum for secular Bangladesh and trial of war criminals of 1971, Ekattorer Ghatak Dalal Nirmul Committee, Mukti Joddha Sectors forum, and some leftist political parties including the Awami League. This movement was stronger before the ninth general election held on 29 December 2008 and it was one of the prime manifestos of the Awami League which led 14 party allies (D’Costa and Hossain, 2010). The 14 parties’ alliances led by the Awami League (Hasina, daughter of Sheikh Mujibur Rahman) won the ninth parliamentary election in 2008 and assumed power in January 2009. The new government took the initiative again for the trial of war crimes committed by Bangladeshi collaborators, to ensure justice and fulfil the expectation of the nation. Rashid Askari has described the auxiliary forces and their offences: [T]he collaborators of the Pakistan Occupation Army were Golam Azam the supreme and the ringleader of 70,000 Razakars, working under different factions with different names Razakar, Al-Badar and Al-Shams. He was a party to the atrocious genocide, the rapes, and the molestation of millions of Bengali women, and the most barbaric act of killing hundreds of pro-liberation intellectuals. In these brutal occurrences, he was assisted by his top associates- Matiur Rahman Nizami, Abdul Qader Mollah (Butcher Qader), Ali Ahsan Mujaheed, Abul Kalam Azad (Bachchu Razakar), AKM Yusuf, Chowdhury Mueen-Uddin, Mir Quasem Ali, Muhammad Kamaruzzaman, Delwar Hossain Sayeedi and many others. (Askari, 2014)
All these leaders are linked and lead the politics of Jamaat-e-Islam in Bangladesh. However, before proceeding with the trial, the government took the initiative to amend the International Crimes Tribunals Act (ICTA) 1973 based on the recommendation of the Bangladesh Law Commission and Human Rights Watch (HRW) to meet the basic standards of international law (Linton, 2010). The ICTA 1973 was amended by the parliament on 9 July 2009 and renamed as the International Crimes (Tribunals) (Amendment) Act (ICTAA) 2009 (Daily Star, 25 March 2017).
Under the amended Act, two International Crimes Tribunals (ICT-1 and ICT-2) were established. The first International Crimes Tribunal (ICT-1) was set up on 25 March 2010 and started its trial process from 20 November 2011 (ICT Website, 2019). The second International Crimes Tribunal (ICT-2) was established on 22 March 2012 and began to function from 21 January 2013. The ICT in Bangladesh is a domestic tribunal established and working according to the domestic laws of the country for the alleged war criminals but excluding the Pakistani army, although the subject matter and jurisdiction reflect the Nuremberg tribunal (Jalil, 2012). On the other hand, the International Criminal Tribunal Yugoslavia (ICTY) and the International Criminal Tribunal Rwanda (ICTR) were established through the United Nations (UN) Security Council resolutions and are considered as international tribunals (Menon, 2017).
Formation of the tribunal
The tribunal consists of three judges. The first tribunal was composed of Mohammed Nazmul Haq as chairman, with ATM Fazle Kabir and AKM Zahir Ahmed as members. As per section 6(2) of ICTAA, 2009, any person who is a judge, is qualified to be a judge or has been a judge of the Supreme Court of Bangladesh may be appointed as chairman or a member of a tribunal (Fazi et al., 2018). It is worth mentioning here that no international judges or prosecutors are involved in the trial process. Also, the role played by the Appellate Division of the Supreme Court of Bangladesh – to which a person convicted of any crime specified in the Act and sentenced by the tribunal has the right to appeal – also adds immensely to the domestic character of the court (Menon, 2017: 4). Two tribunals were working with the same jurisdiction as per section 3 of the ICTA (1973) until 14 September 2015; however, since 15 September 2015, ICT-2 is non-functional (Ashif, 2018).
Jurisdiction of tribunals
As per section 3(1) ICT Act 1973 (amended in 2009), any individual or group of individuals besides members of the armed forces, defence forces or any auxiliary force, who had committed genocide and crimes against humanity and peace, would be eligible for prosecution. The crimes described in law are: murder, that of the extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhuman acts committed against any civilian population or persecution on political, racial, ethnic or religious grounds (Menon, 2017:4; Rahman and Billah; 2009). As per section 3(2) of ICTA, 1973 (amended in 2009) the acts or any of them are crimes within the jurisdiction of a tribunal for which there shall be individual responsibility, namely: (a) Crimes against Humanity; (b) Crimes against Peace; (c) Genocide; and (d) War Crimes.
The jurisdictions of the ICT in Bangladesh encompass all the crimes mentioned by international conventions, customary and humanitarian laws like the Rome statutes, the Geneva convention, and trials related to Nuremberg and Tokyo, but critics have criticized severely as the trial process conducted by domestic elements like judges and prosecutors (Hoque, 2016; Jalil, 2012; Menon, 2017).
Prosecution
A prosecution group is composed headed by a chief prosecutor (Golam Arif Tipu was the first Chief Prosecutor) and an Investigation Agency under sections 7 and 8 of the Act (ICTA, 1973). The official setting is made up of the registrar, deputy registrar and essential staff. The tribunal has formulated its own Rules of Procedure (ROP) under section 22 of the Act (ICTAA, 2009). After fulfilment of the examination, the Investigation Agency submits a report to the Chief Prosecutor. After assessing the report, the central prosecutor submits a formal charge sheet together with proof materials, archives and an explanation of the observer before the tribunal (Samad, 2016).
Trial process
As per section 9(1) of ICTA 1973, the proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor, or a Prosecutor authorized by the Chief Prosecutor in this behalf, of formal charges of crimes alleged to have been committed by each of the accused persons. (ICTA, 1973).
A person indicted for any wrongdoing indicated in section 3 and sentenced by a tribunal may have the privilege to speak to the Appellate Division of the Supreme Court of Bangladesh under section 21(1) of the Act against such conviction and sentence (ICTA, 1973). The administration or the complainant or the witness likewise may have the right of appeal against a request and decision of absolution or a request for sentence under section 21(2) of the Act (ICTA, 1973).
The tribunal should be free in the activity of its legal capacities and might guarantee a reasonable trial under section 6 (2A) with a perspective to guarantee the universal standard (ICTA, 1973). Apart from this, the neutrality and freedom of the tribunal have been ensured by the ICT Act and the Rules of Procedure of the tribunal under section 22 and Article 14 of the International Covenant on Civil and Politcal Rights (ICCPR). The prosecution of the tribunal will be in public before journalists, lawyers, reporters and other individuals watching the procedures (ICT, 2015).
The politics of war crimes trials and verdicts of ICTs
ICT -1 established on 25 March 2010 and ICT -2 established 21 January 2013 in Bangladesh (mentioned above with date) to try those responsible for atrocities during the war of independence against Pakistan in1971. Since the inception of the ICT in March 2010, the tribunals have delivered 34 cases against war criminals. Among them, 52 were sentenced to death in 30 cases against alleged war criminals who were collaborators (Asif, 2018). Of these verdicts, 11 were delivered by ICT-2 and rest of the cases delivered by ICT-1. Apart from these, 10 were accused, including Jamaat-e-Islami Amir Matiur Rahman Nizami, in the war crimes cases under the review process at the Appellate Division of Supreme Court, and 18 others were accused in 4 cases under trial at the International Crimes Tribunal (ICT) (Daily Prothom Alo, 24 November 2015).
In addition, 675 complaints of rape, mass killing, loot, arson, forceful conversion and migration committed by collaborators across the country were probed by the investigation agency of ICT (Ashif, 2018). According to the investigation cell source, charges were brought against almost 3503 people (Daily Prothom Alo, 24 November 2015; Daily Star, 25 March 2017).
It was found that out of 44 accused, 27 were from Jamaat-e-Islami (JeI), 6 from the Muslim League (ML), 5 from Nizam-e-Islami (NeI), 2 from the Bangladesh Nationalist Party (BNP) and 2 from the Jatiya Party (JP) (Singh, 2015). Although some of the accused are belonging in Awami League (AL-ruling party) and the trial process is underway, no verdict has been delivered. The post-judgment incidence of political parties led by the opposition combine of the BNP, Jamate-Islam and its student wing Islami Chhatra Shibir (ICS) have been engazed with full of violence and devastating activities in each earlier judgment delivered by the ICT and the Appellate Division of the Supreme Court. The trials have faced many challenges over the years. Witnesses were threatened and attacked. Jamaat called protest after protest against the verdicts. The country had to tackle the mayhem unleashed by Jamaat and Shibir; for instance, in 2013, after the tribunal sentenced Jamaat leader Delawar Hossain Sayedee to death. More than 65 people lost their lives in the atrocities.
The Supreme Court has already disposed of 5 of the 21 cases. Four of them were executed by implementing the death penalty by hanging. They are Salauddin Quader Chowdhury, a veteran BNP leader, and three Jamaat leaders: Ali Ahsan Muhammad Mojaheed, Kamaruzzaman, and Abdul Kader Mollah (Daily Star, 25 March 2017).
Also, Delwar Hossain Sayeedi the Jamaat-e-Islami Naib-e-Amir was sentenced to life imprisonment. Later, on 8 March 2016, the Appellate Division of the Supreme Court upheld another death penalty for Jamaat-e-Islami leader Mir Quasem Ali for crimes against humanity committed during the 1971 Liberation War (Daily Star, 25 March 2017). The Supreme Court also upheld the death penalty for Motiur Rahman Nizami the Ameer of Jamaat-e Islam by a four-member Supreme Court bench headed by Chief Justice Surendra Kumar Sinha which was declared by the ICT-1 in October 2014, on four charges, and life imprisonment on four more charges (Daily Star, 25 March 2017). The former Jamaat Ameer Ghulam Azam and BNP leader Abdul Alim had died while in prison, having been sentenced by the ICT, but their appeals to the Supreme Court became ineffective due to sudden death in jail. Moreover, five accused, Abul Kalam Azad, Chowdhury Moinuddin, Ashrafuzzaman Khan, MA Zahid Hossain and Hasan Ali, are fugitives in four cases which received death sentences (Daily Prothom Alo, 24 November 2015).
All these verdicts were accomplished by ICTs located in Dhaka, Bangladesh, under ICTA, 1973 through Bangladeshi judges and prosecutors. The preliminary investigation takes place at the local level, based on the complaints of local people. Then an investigating officer is appointed against the accused for justifying the prima facie (initial charge) against him. The investigating agency is also assisted by the law-enforcing and intelligence agencies during the investigation (Daily Prothom Alo, 24 November 2015). The investigation also takes place confidentially to examine the political identity of the accused, including their past history. After satisfying all kinds of requirements, a full investigation is launched (Daily Prothom Alo, 24 November 2015).
Therefore, the trial process is completely accomplished by Bangladeshi elements and no war criminals of the Pakistani army or political leaders are taken into consideration under this trial process. Also, the war crimes and the establishment of ICTs are based on political ideology. War crimes carried out by Jamaat leaders and ICTs are established by the Awami League government. Thus, most of the verdicts are delivered against the war criminals who are involved with the politics of Jamaat-e-Islam. Consequently, numerous critics have raised their voices against its motives and international standards. The following section deals with the standard of the trial process of ICTs in Bangladesh.
Does ICT meet the international standard?
To assess the international standard of the trial process of ICTs of Bangladesh, some trial procedures of international crimes tribunals such as those in Nuremberg, Tokyo, Rwanda and Yugoslavia have been compared. The premise of the war crimes trial can be followed back to the 7 October 1942 declaration by Roosevelt for World War II (Linton, 2016).
War crimes trials of Nuremberg and Tokyo
After World War II, both national and international tribunals were set up to attempt to convict war offenders. The Nuremberg Trials are the most famous; they were a series of trials held between 1945 and 1946. (Holocaust Encyclopedia, 2018). The trial of German military authorities, political leaders, industrialists and operators for wrongdoings they had carried out during World War II was held before the International Military Tribunal (IMT) in Nuremberg, Germany, with judges from the Allied forces (the United States, the United Kingdom, the Soviet Union, and France) (Schabas, 2017). Representatives of the Soviet Union, the United States, the United Kingdom and the provisional government of France signed the London Agreement, which provided for an international military tribunal to try major Axis war criminals whose offences did not take place in specific geographic locations (Encyclopedi Britannica, 2018). This agreement was supported by 19 other governments and included the Nuremberg Charter, which established the Nuremberg tribunal and categorized the offences within its jurisdiction (Cryer, 2010; Schabas, 2017).
The charter listed three types of crime such as crimes against peace, war crimes and crimes against humanity (Encyclopedia Britannica, 2018; Shaw, 2008). Crimes against peace refer to the preparation and initiation of a war of aggression; war crimes include murder, ill-treatment and deportation; and crimes against humanity include political, racial, and religious persecution of civilians. This is commonly called genocide (Encyclopedia Britannica, 2018; Schabas, 2017; Shaw, 2008).
The International Military Tribunal in Nuremberg, Germany, tried 22 Nazi leaders, including one, Martin Bormann, who was tried in absentia (Schabas, 2017). The trial period took place over nearly 11 months and was conducted in 4 languages. All but 3 of the defendants were convicted; 12 were sentenced to death and one committed suicide prior to trial (Menon, 2017: 15). The remaining defendants received lengthy prison terms, which they served at Spandau Prison in West Berlin (Schabas, 2017; Shaw, 2008). In addition, successive trials were held under the auspices of Control Council Law No. 10, which was used to prosecute accused Nazi war criminals whose crimes took place in specific locales (Encyclopedia Britannica, 2018; Schabas, 2017; Shaw, 2008). The Tribunal of Nuremberg also indicted three out of the seven accused Nazi ‘criminal organizations’ including the elite SS (Schutzstaffe) and the Nazi secret police known as the SD (Sicherheltsdienst, or Security Service), and the Gestapo (Encyclopedia Britannica, 2018; Menon, 2017; Shaw, 2008).
On the other hand, the International Military Tribunal for the Far East (IMTFE) was convened in Tokyo, Japan, in 1946, proclaimed by US Army General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan (Schabas, 2017). The prosecution team was made up of jurists from 11 Allied nations: Australia, Canada, China, France, Great Britain, India, the Netherlands, New Zealand, the Philippines, the Soviet Union and the United States of America (Shaw, 2008). The Tokyo trial period was 2 years and 6 months, from May 1946 to November 1948. The IMTFE presided over a series of trials of senior Japanese political and military leaders pursuant to its authority ‘to try and punish Far Eastern war criminals’ (Holocaust Encyclopedia, 2018). Of the 25 Japanese defendants (all of whom were convicted), 7 were sentenced to hang, 16 were given life imprisonment and 2 were sentenced to lesser terms (Schabas, 2017; Shaw, 2008). Except for those who died early of natural causes in prison, none of the imprisoned Japanese war criminals served a life sentence (Jonathan, 2000) and by 1958 the rest of the prisoners had been either pardoned or paroled. War crime trials were also held at 10 different locations in China and other countries (Encyclopedia Britannica, 2018).
Critics did not accept the war crimes trials, which were considered to be ‘victor’s justice’, because only individuals from the defeated countries were prosecuted and because the defendants were charged with acts that allegedly had not been criminal when committed (Hoque, 2016; Jonathan, 2000; Schabas, 2017). In support of the trials, the Nuremberg tribunal cited the Kellogg–Briand Pact (1928), which formally outlawed war and made the initiation of war a crime for which individuals could be prosecuted (Shaw, 2008). Critics, including those who wanted the major criminals punished, also mentioned some limitations. For instance, Harlan Stone (1872–1946), Chief Justice of the US Supreme Court at the time, described the proceedings as a ‘sanctimonious fraud’ and a ‘high-grade lynching party’ (Jonathan, 2000; Schabas, 2017). Similarly, William O Douglas (1898–1980), then an Associate US Supreme Court Justice, said the Allies ‘substituted power for principle’ at Nuremberg (Hoque, 2016; Narayanan, 2016; Schabas, 2017).
However, most observers considered the trials a step forward in the establishment of international law. The findings of the Nuremberg Trials contributed to creating the United Nations Genocide Convention (1948) and the Universal Declaration of Human Rights (1948), as well as the Geneva Convention on the Laws and Customs of War (1949) (Cryer, 2010; Schabas, 2017).
War crimes trials of Rwanda and Yugoslavia
The ICTY was established by the UN Security Council in May 1993, for the prosecution of perpetratorsof serious violations of International Humanitarian Law committed in the territory of the former Yugoslavia since 1991 (Cryer, 2010). Similarly, the UN created the ICTR in November 1994 to prosecute the responsible persons of Rwanda for genocide and other such violations committed in the territory of neighbouring states between 1 January and 31 December 1994 (Cryer, 2010; Schabas, 2017).
Both the ICTY and the ICTR were international in composition but did not sit in the country where the conflicts took place; one (the ICTY) was located in The Hague and the other (ICTR) was located in Arusha, Tanzania (Cryer, 2010; Schabas, 2017). The tribunals had about indistinguishable administering rules and a typical redrafting chamber. Despite the fact that the Nuremberg and Tokyo tribunals were empowered to execute capital punishment, the ICTR and ICTY could impose just terms of imprisonment (Fazi et al., 2018; Schabas, 2017). The ICTY was given four types of crimes (Encyclopedia Britannica, 2018): (a) grave breaches of the Geneva conventions; (b) violations of the laws or customs of war; (c) genocide; and (d) crimes against humanity. Like the statutes of the Nuremberg and Tokyo Tribunals, the ICTY and ICTR statutes did not consider the official position of individuals, including their position as head of state, to be an adequate reason for avoiding or sidestepping criminal culpability (Cryer, 2010; Schabas, 2017; Shaw, 2008).
The most powerful argument against war crimes tribunals is that they offer only the victors justice (Narayanan, 2016; Schabas, 2017). The firebombing of Dresden and the use of atomic weapons on Hiroshima and Nagasaki are clear examples of such acts (Encyclopedia of Britannica, 2018; Schabas, 2017).
Comparison to Bangladesh – justice or politics?
In Bangladesh, the trial procedure is to some degree different from Nuremberg, Tokyo and other trials mentioned above. All the previously mentioned trials were led by multi-states judges and prosecutors at a specific tribunal which had no extension to appeal in any higher tribunal or Supreme Court of any nation (Jalil, 2012). On the other hand, the ICT of Bangladesh is run solely by domestic (Bangladeshi) judges and prosecutors. Bangladesh thoroughly rejects worldwide help, including that of ICC Hague, Netherland; voluntary counsels and researchers advice on International war crimes law and justice that such choice of Bangladesh government has disregarded the International standard and guidelines of the fair trial (Hoque, 2016). G Robertson censures the ICT, saying that ‘there is nothing “International” about it: the judges and the prosecutors are government-designated neighbourhood legal counsellors while remote insight has been prohibited from showing up for the protection’ (Robertson, 2015: 12).
Commentators and critics raise their voices against the ICTs of Bangladesh as it is executing only for local collaborators by excluding the primary accuesed 195 Pakistani military against whom Bangladesh had gathered particular evidence and confirmation of genocide (D’Costa and Hossain, 2010; Hoque, 2016; Linton, 2010). Section 10(4) of the ICTA 1973 gives provision for a public trial but some complaints of the defence were that the accused were denied free access to their attorneys (Alamgir and D’Costa, 2011: 3). The tribunals also prohibited open access for foreign observers and journalists, and the defence was not allowed to engage foreign attorneys or given adequate time to prepare its case. Also, the number of defence witnesses was restricted, and the judges of the tribunals were not free from partiality and bias (Hoque, 2016).
The ICTs has confronted serious feedback from international associations including Amnesty International, HRW, specialists designated by the UN Human Rights Council, the War Crimes Committee of the International Bar Association and the US Unique Ambassador for War Crimes, among others (Hoque, 2016). Genuine concerns with regard to the lawfulness of the tribunal’s procedures have been raised, some of which are given below: as in the instance of Ali Ahsan Mohammad Mojaheed (Jamaat-e-Islam) and Salauddin Quader Chowdhury (BNP), who was executed on 21 of November 2015 (QC, 2015). Amnesty International expressed the view that their trial and bid strategy was ‘obviously imperfect’. Similar concerns about the tribunal’s workings have been raised by HRW. It has asked the Bangladeshi government to ‘end fast approaching atrocities executions’, since they do not have the global measures for a reasonable trial (Human Rights Watch, 2015).
Political inclination has been apparent, not just in the drafting of the corrections to the 1973 Law, but additionally in the arrangement of tribunal individuals and also prosecutors who are all fervent Awami League supporters. It is relevant to note that under section 6(8) of the International Crimes Tribunal Act 1973 (as amended 2009 and 2013) the arrangement of tribunal individuals cannott be tested either by the resistance or the allegation (Robertson, 2015).
The tribunal has likewise constrained the chance to safeguard. On account of Quader Molla, for instance, out of a total of 965 observers upon whom the defence needed to depend, the tribunal permitted only 6 persons. Then again, the arraignment was permitted to illustrate every one of the 12 of their witnesses including 2 investigation officers (Robertson, 2015).
Apart from these issues, the trial of the perpetrators of the 1971 wrongdoings drew the attention of critics after the Skype outrage (Chopra, 2015). In addition, on 1 October 2013, before the declaration of the verdict of Salauddin Quader Chowdhury, ‘a duplicate copy of the decision’ came into the hands of the press and guaranteed that it was leaked (Fazi et al., 2018: 15).
A legislative change, which was brought about after the ICT handed down its verdict in the case of Abdul Quader Molla (2012), was also the subject of criticism from the perspective of a fair trial (Hoque, 2016). In 2013, the 1973 Act was amended with retrospective impact, with a view to empowering the government to appeal against any sentence passed by the ICT. Following the 2013 amendment, the government appealed to the Appellate Division against the sentence passed by the ICT in this case and demanded that the sentence be increased to the highest penalty available, the death penalty (Menon, 2017).
Finally, it is clear that there is a political motive behind this trial. After immediate independence, the trial was started to fulfil the expectation of the common people of Bangladesh, but after the killing of Sheikh Mujib it was stopped. Then, for around 21 years, the country was governed by two other political parties: the BNP created by Military General Ziaur Rahman, and the Jatio Party created by Lt General HM Ershad. During this period the political party Jamaat (who were the main collaborators with the Pakistani army) was upheld by Zia. The Awami League became inactive as most of the family members of Mujib and his closest four leaders were killed. Twenty-one years after Mujib’s killing in 1996, the Awami League led by Sheikh Hasina, the elder daughter of Shiekh Mujib, came to power. Then heikh Hasina took initiatives again for war crimes trial but without any progress her tenure was finished and BNP led by Khaleda Zia (wife of Ziaur Rahman) came to power in 2001. After coming power, BNP government stopped the trail initiatives, thus, the process of the war cromes trial was again hidden. Although the demand for a war crimes trial was raised by the victims’ families, some organizations and common people (excluded family members of colaborators of war crimes) of Bangladesh mentioned above since independence but without Awami League, no political party or government took any initiatives. In 2008, the Awami League lead Hasina came to power again and took further initiatives for the war crimes trial which is still continuing. Some scholars treated it as a political trial, not for justice and have the lot of pitfalls or limitations to gain International standard (Houque, 2016; Jalil, 2010 and 2012; Menon, 2017; Samad, 2016).
However, it is worth mentioning that there is worldwide recognition that war crimes, genocide and crimes against humanity and peace have been committed by the Pakistani army and its local collaborators, and that these crimes must be given a fair trial. That the Awami government took the initiative towards the accountability of the perpetrators and justice for the victims is, on the one hand, appreciated, but at the same time criticized, as it was partially a trial only for local collaborators who were treated as opposition political parties and excluded by international prosecutors and judges. Some critics have also mentioned legal flaws and treated the trials as victor’s justice. In fact, the initiative is in ensuring justice for the victims and at the same time linked to a political motive, as the politics of Bangladesh are divided by two mainstream beliefs, the rightist Islamic Nationalism alliance (led by the BNP) and the leftist Independent Bangladesh alliance (led by Awami League). It was part of the agenda of the election manifesto and a promise to the common people of the Awami League before the election in 2008 that they would try war criminals if they came to power. Although initially it was disclosed by the then general secretary of the Awami League, Sayed Ashraful Islam, to the media that it would be a symbolic trial, this process is still going on. The common people, victims’ families and some civil society groups are still demanding the trial of the accused Pakistani army by the ICC located at The Hague.
Yet in spite of these criticisms, the great merit of the ICT of Bangladesh is that a defendant has an opportunity to review the verdict in the Appellate Division of the Supreme Court as per the provision of section 21 of the ICT Act 1973 (Daily Star, 25 March 2017). Besides, an accused have the right to mercy petition at the President of Bangladesh is unique and beyond the international standard that is absent in any International Crimes Tribunals in the world (Samad, 2016). This is a precedent for ensuring natural justice and the rule of law. Most of the past trials by ad hoc tribunals had no appeal provision, though a few had and still have review provision by the same specialized tribunal that gave the judgment (Hoque, 2016).
Concluding remarks
The paper depicts the nature and types of atrocities and war crimes carried out by the Pakistani army and their collaborators during the Liberation War of Bangladesh. This paper has shown that Bangladesh’s International Crimes Tribunals Act 1973, as amended, and the rules of procedure of the war crimes tribunals (ICTs) have incorporated the core tenets of the right to a fair trial. The Act, however, could have further fleshed out fair trial rights in the way the Rome Statute has done. It is important to acknowledge recent improvements on this front brought about by revisions to the tribunals’ rules of procedures. The ICTs of Bangladesh follows their own special procedure and rules but the ICTY and the ICTR were established through a UN Security Council resolution. Therefore, the ICT of Bangladesh is less credible and accountable compared to the ICTY and the ICTR. However, the central objective of both the tribunals is the same as stated by the ICT of Bangladesh. In terms of rights ensuring guarantees of a fair trial, procedures and working statutes, enormous contrasts are found. Accordingly, the ICTY and the ICTR appear to be more, transparent and fair than the ICTB. In addition, the prosecutors and judges of the ICT in Bangladesh are appointed from Bangladesh but the judges and prosecutors of Nuremberg, Tokyo, Rwanda and Yugoslavia trials were appointed from multinational alliances. Thus, the trial process of the ICT in Bangladesh failed to meet all the features of international standard, as it is governed solely by domestic elements and influenced by a political motive too. The trials also restricted international observers and media, the main perpetrators (the Pakistani army) are also who excluded from this trial process, who should be brought to trial by the ICC of The Hague. Compared to Nuremberg, Tokyo, Rwanda and Yugoslavia, the trial is perceived as symbolic and purposive which has called like victor justice in Nuremberg trial (Moghalu, 2008). However, none of the international trials mentioned above was free from controversy, and global politics were involved in those trials.
In any case, the beginning of the trials of war criminals in Bangladesh in 2010 gave an opportunity, once thought lost, to claim justice for a large number of casualties, and to build up the truth that was denied to the country for a long time.
Footnotes
Acknowledgements
I acknowledge all the supporters and writers whose papers, books and information have been used to prepare this paper.
Funding
The author received no financial support for the research, authorship and/or publication of this article.
