Abid Hussain Chattha
THE tragic and unfortunate events that unfolded during the Bangladesh Liberation War spread over nine months of conflict and destruction left an enduring impact on the lives of the people of Bangladesh. Despite the lapse of about 40 years, call to investigate and bring to justice the accused of war crimes stayed alive among the people of Bangladesh till today. Even today, various polls suggest that war-crime trials are regarded as top three ‘positive steps that the government has taken’, though the issue is not considered among the top ten most pressing issues facing the country. Furthermore, more than 66% people regard such trials as ‘unfair’ or ‘very unfair’ though 86% support the implementation of the International Crimes Tribunal (Bangladesh) (ICTB).
The ICTB was established in 2009 with the objective to investigate and prosecute suspects for alleged genocide committed in 1971 by the Pakistan army and their local collaborators during the Bangladesh Liberation War by amending the International War Crimes Tribunal Act, 1973 (1973 Act). Thus, ICTB is essentially a domestic Tribunal applicable to persons living in Bangladesh who come within the ambit of the 1973 Act.
The global community in general and the United Nations, European Union, United States of America and human rights organizations in particular including the Human Rights Watch, initially fully supported and backed the creation of ICTB and even offered help and assistance to the Bangladesh Government with the caveat that such trials must be fair, just and conform to best international standards both in terms of procedural and substantive law. Thus, to begin with, the idea of ICTB had a global recognition and acceptance and was generally viewed as legitimate.
Pakistan obviously is caught in a precarious situation being a direct party to the issue. But the fact is that no one can rewrite history. Pakistan is not the only country to have been accused of war crimes. History is replete with such examples involving other countries of the world. The only choice is to acknowledge the mistakes of the past, offer conditional apology to the people of Bangladesh in particular and the world in general over the accesses committed, redress the issues to the extent possible and move forward for a fresh beginning.
The ‘Tri-Partite Agreement of Bangladesh-Pakistan-India’ (1974 Agreement) signed in New Delhi on April 09, 1974 was a humble and rightful beginning. In the 1974 Agreement, Pakistan condemned and deeply regretted any crimes that may have been committed in response to Bangladesh’s assertion that accesses and manifold crimes were committed and persons charged with such crimes as 195 Pakistani prisoners of war should be held to account and subjected to the due process of law. Furthermore, emphasizing reconciliation, repatriation and to have a fresh start for peace and progress, the Government of Bangladesh agreed not to proceed with the trials as an act of clemency and agreed to repatriate 195 Pakistani prisoners of war. The 1974 Agreement noted that it provided a firm basis for the normalization of relations and the establishment of durable peace in the sub-continent.
The question is when the founding fathers of Bangladesh had agreed in the 1974 Agreement not to proceed with the trials, what legitimacy can be attributed to the ICTB set up in 2009 and is it a blatant violation of the 1974 Agreement? At the diplomatic front, it also requires introspection as to where the spirit of reconciliation was lost in the bilateral relations between Pakistan and Bangladesh? Both countries may be at fault even though a perfect platform was provided to build the edifice of the future.
The War Crimes Fact Finding Committee with the mandate to investigate and find evidence identified 1600 suspects in its report completed in 2008. This was itself strange because under the Bangladesh Collaborators (Special Tribunal) Order 1972 established by the then AL Government, 100,000 persons were arrested and investigated. Out of these only 752 people were found guilty for collaboration and were given sentences for different periods. If so, how after 40 years, the suspects have increased to 1600 although many people since then have died and evidence lost? If the collaborators were tried and sentenced, then how, the same crimes are being prosecuted once again under a different format?
It appears the ICTB is being widely employed against leaders of Jamaat Islami and for some other political rivals. Is any collaborator arrested or tried who is associated with the AL or other political parties in alliance with the AL? Since the start of the trials, serious questions have marred the independent and impartial functioning of the ICTB. There are widespread allegations. The 1973 Act falls short of international standards stipulated in the Universal Declaration of Human Rights, International Covenant on the Civil and Political Rights, Geneva Conventions on War Crimes and the Rome Statute of International Criminal Court. There are serious allegations that witnesses and defense counsels are being threatened and harassed. Investigators, prosecutors and judges are not impartial and unbiased. Government interference and involvement is rampant. Rules of evidence and fundamental rights are being violated. Procedure for due process is being compromised.
On account of such serious controversies and lapses of international standards, the ICTB has become extremely controversial and has quickly losing its initial support from the world community. The UN, the West, the human rights organizations, international jurists of acclaim and stature and other countries of the world are increasingly and consistently criticizing the human rights violations, political victimizations, governmental interferences, lack of due process, fairness and impartiality associated with the trials conducted by ICTB. The injustices are being raised and calls made to stop blatant abuse of human rights taking place. It’s high time that Pakistan may place the facts before the world and take affirmative action to redress the wrong attributed to the people of Bangladesh in its name.
— The writer is former member of Punjab Assembly and a Supreme Court lawyer.