WAR CRIMES AND GENOCIDE ’71: BRING THE PERPETRATORS TO JUSTICE
“…… we were told to kill the Hindus and Kafirs (non-believer in God). One day in June, we cordoned a village and were ordered to kill the Kafirs in that area. We found all the village women reciting from the Holy Quran, and the men holding special congregational prayers seeking God’s mercy. But they were unlucky. Our commanding officer ordered us not to waste any time.”
-The confession of a Pakistani soldier
The genocide committed in Bangladesh in 1971 is widely considered to be one of the worst genocides in recent history. It all started with Operation Searchlight, a planned military pacification carried out by the Pakistan Army. It started on the 25th of March, 1971. Its main objective was to take control of the major cities on the 26th of March in order to suffocate the power of the Bengali nationalist movement, and then eliminating all opposition, political or military, within one month. The operation was names Operation Searchlight because this genocide, despite the indiscriminate killings of a huge number of innocent men, women and children was also very much target oriented. But this is in no way to imply that because it was a targeted killing, it was any less than genocide rather on the contrary it was the worst kind of genocide for two very specific reasons. Firstly the targets were mostly civilians and secondly although Bengali paramilitary forces (East Pakistan Rifles) and police were attacked right on the night of March 25 1971 when the operation started, the attack was an undeclared war on the basis of ethnic identity. Therefore although the objectives and operation were well defined and the target of killings and tortures of all degree and dimensions were preplanned, this in no way reduces the responsibility of causing genocide in Bangladesh from March 25, 1971 till December 6, 1971. The broader target was the entire Bengali population in the erstwhile East Pakistan. Accordingly on the night of 25 arches, the Pakistani Army launched Operation Searchlight to crush Bengali resistance in which Bengali members of military services were disarmed and killed, students and the intelligentsia systematically liquidated and able bodied Bengali males just picked up and gunned down. According to various sources three million people were killed by the Pakistani Armed Forces and their accomplices in Bangladesh. It was one of the largest genocides in the modern known history. The objective of this paper is to concentrate on the war criminals of the aforementioned genocide and whether or not they should be brought to justice and the procedure how the trial to serve this justice can take place.
2. REASONS WHY THE PERPETRATORS SHOULD BE BROUGHT TO JUSTICE
The carrying out of the trial to serve justice to those who was involved in the tyranny of 1971 against Bangladesh is very much important. In the independent country of Bangladesh today the families of both the freedom fighters who gave their lives for the war of independence for the country and also were at several times victimized by the aforementioned perpetrators, and the families of the perpetrators themselves exist as free citizens. But that is impossible to do so for the victimized families knowing that the free soil which their forefathers have left for them is being shared and exploited by those very families whose forefathers were in charge of the tyrannical reign against the ’71 freedom fighters. Nobody can coexist in peace and harmony knowing what they know about all these and it left a scar on our free country which is being infected everyday by the anger and rage among the families. It is like ‘sharing a bed’ with your enemy and it is not something which a sane person can take.
Other than the reasons mentioned above, the obvious fact still remains to be said that the atrocity performed by the tyrants is very hideous in nature of the utmost monstrous act. The acts performed by the tyrants are often compared to that of the Nazis’ back in the World War. If for nothing else, the trial should be carried out just for humanity’s sake and to bring justice to the victims. Only by carrying out such a trial can the perpetrators can brought to justice and can be made an example upon so that further such heinous actors of such kind will have something to think about in the future.
So far we have only been talking about the families of the involved parties, but let’s not forget such tyranny is as much a threat to the country as much as it is to the families, if not more. Such acts are matters of national security and if something are not done right here and now how the government of Bangladesh will ensure that such deeds will not occur again in the future. Also by an extensive trial can learn about the loopholes of its country and hence it may help them in ensuring to better equipped against such threats in the future.
Such a trial deserves to be held just so that the spirit which helped Bangladesh win the liberation war can be revived and so that it can be kept from dying away. The country for whose freedom blood was shed is very much in need of such ideology in order to save it from corruption and anarchy from reaching its very core, and such justice may very much be appropriate jump start the people of this country need.
3. THE TRIAL FOR THE GENOCIDE OF THE WAR CRIMINALS OF 1971
The trial should be preceded in such a way so that the general public does not get in harm’s way. As stated by Syed Ashraful Islam, “The trial of war criminals doesn’t mean the trials of thousands of people. It will be symbolic and those who led the massacre in 1971 will be tried” (taken from: http://www.thedailystar.net/magazine/2010/03/03/voice.htm); that is not only should the trial not harm anyone innocent in the process, but it should also act as a symbol and a benchmark based on which such acts of atrocity in the future can be judged. There is no use in creating panic around the nation during the process of the trial.
That being said the next step for the trial should be for the court to decide under which law the perpetrators can be placed and judged. The criminals cannot be judged and tried under the International Criminal Court (ICC) as it cannot judge offences committed before it was formed, i.e. before 1998. As acknowledged by Dr. Mizanur Rahman and S. M. Masum Billah (2009), Bangladesh may take the help of any one of the following possibilities:
I. Establish an International Tribunal to try these crime
II. Establish an UN sponsored National Tribunal for the trial
III. Establish a special tribunal under the domestic law to try the war criminals of 1971
The first two laws, as promising as it may be, may not be within the reach of the country due to international politics. Also it would be wise to involve as little international involvement as possible. This will ensure a proper and just trial for the Bangladeshi people by the Bangladeshi people. This leaves us with the third option of trying the perpetrators in a special Tribunal established under 1973 International Crimes Law prevailing in Bangladesh only for this purpose as the most viable one. Here as well Bangladesh has two options:
- Try the war criminals in the national court applying universal jurisdiction, and
- Try the war criminals in the national court under the national law
In respect to the second option, Bangladesh has a statute which was formed by the Bangabandhu government in 1973. The title of the statute is The International Crime Tribunal Act, 1973. The law has been updated in the July of 2009 with the modern day dimensions of war crimes law and genocides. Bangladesh should try and establish a mixed Tribunal comprised of mixture of both national and international criminal laws for the trial of these crimes. The recent Bangladeshi amendment allows for independent investigation by agencies prior to a trial. This is greatly needed in order to avoid the bureaucratic corruption that may occur in a government led investigation; therefore this will help in achieving a well informed and multi dimensional trial. The Tribunal should have the feature of national control with international exposure. What this means is that the Tribunal has to have international help looking into the matter but making sure that central control is that of its own government so as to avoid from being steered by foreign governments. Purely patriotic option is burdened with the potential risk of sending an undesirable signal to the rest of the world, which may harm the credibility of the tribunal.
There is also the issue of the criticizing of the national Tribunals. Critics state that fair trials of internationally designated crimes by national Tribunals are prone to corruption. This is due to the lack of properly executed process and internal political influence of the home country. No matter how much effort goes into the formulation of a Tribunal, if the trial itself is not carried out in a fair and just manner it would have been of no use. Therefore a fair and credible trial is necessary.
Professor Rafiqul Islam (2009) states that, “In formulating the applicable substantive law and procedural rules of the tribunal, Bangladesh must be careful about certain basic principles of international law and its own constitutional law. For example Article 9 concerning arrest and speedy trial and the right of the accused enshrined in Articles 14 and 15 of the International Covenant on Civil and Political Rights 1966 of which Bangladesh is a party and its own constitutional guarantees embodied in chapter 3 of its Constitution. Being a party to the Vienna Convention on the Law of Treaty 1969, Bangladesh must affirm that it would not invoke or apply any national law to escape international treaty obligations. A case has to be made for arguing that The Shimla Pact, 1973 (which is related to this) is void in international law for its inconsistency, if not repugnancy to, the peremptory norm of international law” (Islam, 2009).
If Bangladesh succeeds in the trial in the aspects of transparency and fairness, the UN will appeal to the internationally community to help and support in forming the Tribunal, both personally (with the help of their personal expertise) and financially.
4. BANGLADESH WAR CRIME TRIBUNALS: WORK IN PROGRESS
So far we have been looking, in the previous section, into what kind of a Tribunal should the Bangladeshi government form, with the help of which a fair and just trial of the 1971 perpetrators can be carried out. In this section we will take a look into the war criminal Tribunal of Bangladesh already in the making.
In March of 2010, the Bangladeshi government created a tribunal for the war crimes in order to punish the war criminals. The government has banned fifty suspects, mainly Jamaat-e-Islami, from leaving the country. It is estimated that about 1,600 people took part in the killing, but the Pakistani army members will not be affected by the tribunal’s jurisdiction. This decision was up for much debate and criticism, the main reason for which is that the proceedings are the justice of the victor and the tribunal is the means by which the victor can get rid of all the political opposition. After the war, partners of the perpetrators who were guilty and were involved in the mayhem of 1971 will be brought to trial, but those who were not involved will not.
The creation of the tribunal seems to be very promising, even though it took its time to take effect since the independence of the country. Sheikh Mujibur Rahman started executing the trial of the war criminals in 1973, but was left incomplete after his assassination. Since then the trial could not be resumed, more like were not possible to be resumed, due to the political turmoil of the country. The current Prime Minister of Bangladesh, Sheikh Hasina, was involved in a campaigned to prosecute war criminals, and the Parliament finally allowed the creation of the tribunal by passing a resolution in 2009.
The renewed promises were put to action in two days after Bangladesh’s approval of the Rome Statute. The newest member of the State Party to the ICC is Bangladesh (111th member). It is the first in south-east Asia. Bangladesh now may need to revise and modify (if necessary) the implementation of its tribunal to make sure that it is in harmony and is consistent with the standards set forth in the Rome Statute. It has been put to action on the June of 2010. There is a big time gap since the war and it may make it more difficult to produce evidence which is needed to ensure fair trials. Nonetheless the United Nations is quite hopeful that the trials will operate according to international standards, and they are considering sending observers from its headquarters to oversee the trial.
Crimes against humanity, war crimes and genocide are the worst type of crimes in international law and the ideal punishment is very important to ensure the prevention of such crimes, protection of human rights and the promotion of international peace and security. Fortunately, there is no issue of limitation of time or a time period between which such acts of law has to be implemented. Such a trial must be held in consistency with the human rights act of Bangladesh so that no question of moral values and legality can be raised later about the formation of Court and its legal proceedings. The sovereignty of
Bangladesh should not be seen as a tool for separation from the international analysis of the formation and operation of the tribunal. Rather, it must be used as a tool for international collaborative participation so that distributive justice to all stakeholders can be ensured for the victims and their relatives, as well as their perpetrators alike. The whole issue should be carried out in such a manner so that it can act as a benchmark for future generations and also so that it may serve as a lesson for them.
Adlof Eichman v. Attorney General of the Government of Israel, Supreme Court of Israel, ILR 36 (1962) at p. 277.
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 The mass killings in Bangladesh (then East Pakistan) in 1971 vie with the annihilation of the Soviet POWs, the holocaust against the Jews, and the genocide in Rwanda as the most concentrated act of genocide in the twentieth century. In an attempt to crush forces seeking independence for East Pakistan, the West Pakistani military regime unleashed a systematic campaign of mass murder which aimed at killing millions of Bengalis, and likely succeeded in doing so. (taken from http://www.genocidebangladesh.org/, http://www.petitiononline.com/1971war/petition.html, & http://chottala.blogspot.com/2009_03_28_archive.html)
 (Bangladesh Genocide Archive, 2009)
 Ahmed, A. (n.d.). Bangladesh 1971: War Crimes, Genocide and Crimes against Humanity, Operation Search Light: The Targets (p. 1)
 Jukti Torke Juddhaporadhider Bichar, Key note paper presented by Dr. Mizanur Rahman in the Freedom Fighters’ Mass Assemblage in Dhaka, 15 March 2008.
 During World War II the Nazi Party led by Adolf Hitler pursued establishing a fascist government in Germany. With the onset of the Great Depression, Nazi support rose and, in 1933, Hitler was appointed Chancellor of Germany, and in the aftermath of the Reichstag fire, Hitler created a totalitarian single-party state led by the Nazis.
 Jukti Torke Juddhaporadhider Bichar, Key note paper presented by Dr. Mizanur Rahman in the Freedom Fighters’ Mass Assemblage in Dhaka, 15 March 2008.
 Sayed Ashraful Islam is a Bangladeshi politician and currently the general secretary of the Bangladesh Awami League. He is also the current LGRD minister of Bangladesh (taken from: http://en.wikipedia.org/wiki/Sayed_Ashraful_Islam).
 The International Criminal Court (French: Cour Pénale Internationale; commonly referred to as the ICC or ICCt) is a permanent tribunal to prosecute individuals for genocidal crimes against humanity and war crimes (Taken from: http://en.wikipedia.org/wiki/International_Criminal_Court).
 The International Tribunal is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands (taken from: http://en.wikipedia.org/wiki/International_Criminal_Tribunal_for_the_former_Yugoslavia).
 Rahman, M.. & Billah, M. (2009)
 Rahman, M.. & Billah, M. (2009)
 An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law (taken from: http://www.thedailystar.net/law/2009/01/03/index.htm).
 Dr. Mizanur Rahman, War Crimes Trial: National and International Legal Aspect, The Daily Star, 26th March, 2009
 Professor Rafiqul Islam, Trials of war criminals under International Humanitarian Law in Bangladesh, The Daily Star, 29 Januray 2009, available at: www.thedailystar.net/law/2009.
 Bangladesh Jamaat-e-Islami, previously known as Jamaat-e-Islami Bangladesh (a.k.a ‘Jamaat’), is a far-right Islamist political party in Bangladesh. It joined the Bangladesh Nationalist Party (BNP) in an alliance during 2001-2006 and served as a member of the Four Party Alliance. Jamaat has openly tried to stop Bangladesh from becoming independent from Pakistan because it believed that it is better for the entire country to stay under one Islamic ruling state. Many members of Jamaat-e-Islami’s were proved to be involved in the genocide of 1971, which is in the Independence War. (taken from: http://en.wikipedia.org/wiki/Bangladesh_Jamaat-e-Islami)
 Raveendran, B. (2010). (Taken from: http://hrbrief.org/2010/04/bangladeshiwartribunal/)
 Sheikh Mujibur Rahman (March 17, 1920 – August 15, 1975) was a Bengali politician and the founding leader of the People’s Republic of Bangladesh, generally considered in the country as the father of the Bangladeshi nation. He headed the Awami League, served as the first President of Bangladesh and later became its Prime Minister. He is popularly referred to as Sheikh Mujib, and with the honorary title of Bangabandhu which means “Friend of Bengal” (taken from: http://en.wikipedia.org/wiki/Sheikh_Mujibur_Rahman).
 Raveendran, B. (2010) (Taken from: http://hrbrief.org/2010/04/bangladeshiwartribunal/).