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Introduction
Following the previous blog posts which placed a historical overview on the independence of Bangladesh, this entry aims to elucidate on the journey so far with regard to truth and reconciliation, half a century later. In its 51st year of Independence, although Bangladesh has transformed itself from an ‘economic basket case’ to being the fastest growing economy, it is still silenced by the torch bearers of international law with regard to recognition of genocide, accountability, and ensuring justice. This piece aims, therefore, to shed light on the truth and reconciliation measures opted by Bangladesh at the face of dire inaction by the United Nations (UN) to establish a fact-finding commission as done in the situations of Syria or Myanmar and initiate international trials of the Pakistani perpetrators as per its relevant conventions, as done in the case of ICTY and ICTR or the Special Tribunal for Lebanon.
Challenges to Secure Justice in the Initial Years of Liberation
This inattention persists despite the fact that the atrocity crimes committed against Bangladesh was one of the most severe and destructive genocides of the 20th Century, and that well within a year of liberation in 1972, the International Commission of Jurists (ICJ) recommended the formation of an international tribunal to prosecute the crimes in its report titled ‘Commission of Enquiry into the Events in East Pakistan in 1971’. In quest for justice, in the midst of battling post-conflict trauma, displacement and natural calamities, the first post-independent Government of Bangladesh passed the Bangladesh Collaborators (Special Tribunals) Order in 1972 and the International Crimes (Tribunals), Act in 1973, which marks the eagerness and its relentless efforts to prosecute and convict the perpetrators of war crimes. This tribunal was the first major kind since the Nuremberg Trials following the World War II and heads the ad-hoc international tribunals established in Yugoslavia, Rwanda, Cambodia and Sierra Leone. However, the majority of the local collaborators that were held or convicted under these Acts were released by way of general amnesty declared by the Government of Bangladesh, resulting from further strategy of international politics under a Bangladesh-India-Pakistan Agreement on the Repatriation of War and Civilian Internees (the Delhi Agreement). The intent of these steps were taken firstly for India and Pakistan to ensure compliance with Geneva Convention and repatriate the Prisoners of War, and secondly to have a peaceful, viable frontier between Pakistan and India and lastly for Bangladesh to conduct trials of the war crimes prosecutors. In hindsight, Bangladesh were only made a part of this Agreement, as the Pakistani forces surrendered to Bangladesh in 1971 under a joint India-Bangladesh command as stipulated in the Instrument of Surrender. As a result, Bangladesh made a big concession by setting aside recognition to pave way for resolving all humanitarian issues while India and Pakistan bargained away justice.
With little interest by the global community and lack of legal discussion, a newly liberated nation fell ploy to the coup d’etat of the Father of the Nation in 1975 and remained stagnant till the transition to a democratic rule in 1991. These constant changes for a nation which only recently encountered atrocities of genocide and crimes against humanity were bound to create ignorance at the domestic level. However, for Bangladesh, its liberators, the civilians, the civil society organisations immediately implemented mechanisms of transitional justice, as learnt from South Africa, Cambodia, Timor-Leste, Indonesia, and Philippines, among others. In 1992, inspired by the Russell Tribunal, the family members of martyrs initiated a Peoples’ Tribunal or People’s Court, which held symbolic trials for suspected collaborators (including some who would later stand accusedbefore the ICT-BD). The nature of this shadow trial was albeit not a formal forum but it envisioned the need for justice by the people of Bangladesh. In addition, in 1993, a Mass Enquiry Committee was established which conducted investigations, collected evidences, and finalised reports convicting the local collaborators.
With each passing year, the need to preserve evidences for securing justice and memorialisation aspects to ensure peace became prominent. Drawing example of Cambodia and Timor-Leste, Bangladesh began its own reconciliation process through memory preservation, arts and culture, testimony collection, documentary preservation, and museum such as the Liberation War Museum. The avenue of ‘Transitional Justice’ refers to the various policies and measures applied by societies in transition in dealing with past abuses. In this, truth seeking contributes to the creation of historical records, prevent distortion of facts and allows acknowledgement of the victims’ stories. Truth can heal a community, end impunity, initiate process of reconciliation, rebuild national identities and ensure a just process towards accountability.
Resumption of Formal Justice Process towards Transitional Justice
It is only in 2010 that the International Crimes Tribunal (ICT), under the 1973’s International Crimes (Tribunals) Act, could be officially formed, and as of now 44 judgments has been passed. Such trials are a representation of transitional justice mechanism, as criminal prosecution address the perpetration of human rights violations, and further help to establish the rule of law and order in a post-conflict chaotic society.
Whether national or international, prosecution provides the victims with a sense of acknowledgment that justice has been served. In light of the UN Genocide Convention and the ICC Rome Statute, although trials in national courts are complimentary to that of the international courts, a crime of such a grave nature demands accountability at a global scale. Unfortunately, Bangladesh, instead of being lauded for its active eagerness in affirming justice through truth and reconciliation mechanism, received more discredit for hosting a domestic trial, whereas the long-delayed prosecutions also bring with them various opportunities and challenges for evidence, with reference to crime scenes, witnesses, documents, and expert evidence, etc.
In the backdrop of existing international law, and treaty obligations, Bangladesh remains a country seeking and ensuring justice through transitional justice mechanisms and advocating for truth and reconciliation. Till now, trials and formal justice has only been done for the local collaborators of Bangladesh, which is a landmark for the possibility of accountability in South Asia. While Bangladesh struggles, Pakistan enjoys impunity, in spite of being a Party, among others, to the Geneva Convention, the Genocide Convention, and the UDHR. It continues to violate the Responsibility of States for Internationally Wrongful Acts 2001 which requires a State to cease the continuing breach of an international obligation, which in this case, is the omission by Pakistan to investigate and prosecute perpetrators on 1971 and denial the rights of effective remedy.
According to Aukerman, “those who have not suffered cannot presume to determine for those who have, what should be attempted through transitional justice and that the latter should address the wishes, pleas, and political realities of the mistreated society, while at the same time acknowledging the global community’s right and responsibility to intervene to ensure justice.” The ECCC in Cambodia, is an independent institution within the Cambodian judiciary and yet the UN negotiated and led to the formation of a Court with a dual administrative system run by domestic authorities and the UN. The ECCC’s effort in allowing formal participation of the victims through filing complaints to the co-prosecutor is a groundbreaking opportunity for legal participation of victims. In East Timor the UN assumed administration and sovereignty beginning in October 1999, through the UN Transitional Administration in East Timor (UNTAET), under which, it established special panels in district courts, called Special Panels for Serious Crimes in East Timor (SPSC).
Conclusion
Despite the legislative framework, various avenues under the tenets of international law, Bangladesh has successfully paved the way to ensure justice on its own, through a formal justice system in addition to ensuring peace and reconciliation through persuasive transnational justice forums. Fifty-one years on, Bangladesh is fueled with the same notion as that of 1971, however, within this time subsequent atrocities in other countries were accommodated with international forums. Such analysis reflects that Bangladesh is unique in terms of its liberation and in its persistent continuation to affirm justice for its people.
Shaoli Dasgupta is a graduate student of BRAC University, Masters in Development Studies Programme. At present she is working at BRAC as a Legal Counsel and with the Liberation War Museum with a specific focus on the Bangladesh and Rohingya Genocide.