Bangladesh War Crimes Trials: From Principle to Prejudice

The tribunal to bring to justice the war criminals and rapists of the 1971 liberation war has run into unhappy ground

David Bergman Dhaka 

The current trials in Bangladesh involving the prosecution of those accused of ‘war crimes’ during the 1971 ‘war of independence’ has come about through many years of hard campaigning. Though no accurate figures exist regarding the number of those who died during the nine month war, hundreds of thousands are estimated to have been killed at the hands of the Pakistan military, aided by a small number of Islamic-minded parties and individuals. Millions of people sought refuge in India. Perhaps thousands of women were also raped in Bangladesh.

Soon after the creation of Bangladesh, the new Awami League government under the leadership of Sheikh Mujib passed a law which allowed for the prosecution of both those who committed violent crimes and those who gave the Pakistan military their political support. The 1972 ordinance led to the arrest of more than 30,000 people, and trials took place across the country.

However, within two years, following widespread acquittals and allegations that the trials were turning into witch-hunts, Sheikh Mujib announced an amnesty for those convicted of political crimes. Though trials of those who were alleged to have committed violent crimes during the war were supposed to continue, the effect of the amnesty was that all trials of the alleged collaborators came to an end.

Initial hopes by the Bangladesh government to prosecute 195 Pakistan military officers who were at that time held in Indian custody, also came to nothing when they were returned to Pakistan as part of the 1973 tripartite agreement which normalised relations between the three countries.

After the assassination of Mujib in 1975, the Jamaat-e-Islami—one of the political parties that supported the Pakistani military during the 1971 war—slowly began to emerge as a significant political presence in the country it had previously sought to deny. With the fall of General Mohammad Ershad in 1990, resulting in the return of democracy, the party obtained 17 seats in the ensuing election, allowing the Bangladesh Nationalist Party (BNP) rather than the Awami League—which had led the fight for independence—to form the government.

It was  recognition that Jamaat had so successfully managed to rehabilitate itself which triggered off the campaign for war crimes trials. This finally resulted, 20 years later, with the Awami League government —under the leadership of Mujib’s daughter, Sheikh Hasina—setting up a national tribunal to prosecute the party’s leaders. However, the legitimate demand for accountability for the 1971 offences which was based upon a concern for due legal process has not been followed by trials.

While the demand for accountability remains popular, the trials have become highly partisan with the current Awami League government determined to get convictions at all cost. For it—and for the many secular supporters of the tribunal in the country’s burgeoning civil society—the trials have become entangled with the political objective of destroying the Jamaat as a political force. Nine of the 11 accused are Jamaat leaders. The other two are opposition BNP leaders.

With the Jamaat’s widespread unpopularity within the current political and civil society establishment, few are willing to point out problems with the tribunal—and those that do get quickly shot down as being ‘anti-liberation’ or ‘pro-Jamaat’. As a result, civil society and human rights organisations that would be expected to raise their voices at some of the tribunal’s decisions are completely silent—either out of choice or fear.

The trial of Jamaat leader Delwar Hossain Sayedee, the first case rushing to judgment (perhaps around the country’s victory day on December 16, 2012, if local press reports are to be believed) is a case in point. Sayedee is being prosecuted on 20 counts of genocide and crimes against humanity, with allegations of murder, rape and forced conversion.

The trial did not start well with the court pronouncing in its indictment that ‘three million’ people had been killed during the ‘liberation
war’—even though the court had not heard evidence on this issue. The court’s willingness to allow rhetoric to trump on evidence on such an important matter was not a positive sign.

When the tribunal does reach its decision, two out of the three current judges will not have actually heard any of the evidence given by prosecution witnesses. One of the original three judges moved to another tribunal immediately after the prosecution witness evidence was given, and another judge recently resigned. However, it is the tribunal’s decisions around the witnesses that are the most contentious. 

Though no accurate figures exist, hundreds of thousands are estimated to have been killed at the hands of the Pakistan military, aided by Islamic-minded parties and individuals

In August 2012, a few weeks before the defence lawyers were to start presenting their case, the tribunal passed an order stating that they could only present 20 witnesses. As a result, 28 out of its list of 48 witnesses were prevented from coming.

The tribunal gave no reasons: “There is no reason to allow 48 witnesses to be produced by the defence. Rather, it has been given with the intention to delay the trial.”

The order was passed even though the tribunal had no knowledge of the relevance of the evidence that was supposed to be given by the defence’s witness—since no statements had been given to the court. The decision appears to strike at the heart of the ability of the accused to present his defence in court. Since conviction for any of the 20 charges could result in a death penalty, it is difficult to see how 48 witnesses can be seen as too many. The order suggests that the tribunal decided that 20 defense witnesses were enough as the prosecution were only able to bring this number—but why the defence should be prejudiced by the prosecution’s failure is difficult to see.

In addition to the prosecution’s 20 oral witnesses, the tribunal had allowed 15 unsigned statements to be admitted as evidence. The prosecution had argued, and the tribunal accepted, that these witnesses were unavailable to come to give evidence at the tribunal.

The manner in which the tribunal has dealt with this is also troubling. In the month after the court made its decision, the defence obtained copies of the register of the ‘safe’ house where the tribunal’s investigation agency had taken witnesses prior to them coming to court to give evidence. This register showed that three out of these 15 witnesses had previously been brought to Dhaka to the safe house for over a month—and therefore were available to give evidence.

Although the defence was able to prove the authenticity of these registers, the prosecutors not only stated in court that these were forged documents, but went so far as to deny that the safe house had even kept any kind of register. Although it must have been clear that the prosecution was
lying, the tribunal declined to amend its order saying that the truth of the safe house registers needed to be proved by ‘evidence’.

When the defence sought summons to the police involved in the safe house, the tribunal declined to do so. It also refused to allow the defence to exceed the 20 witnesses in order to prove the authenticity of the registers.

However, the recent alleged abduction of a witness, a Hindu man whose brother was killed in 1971, is intensely disturbing. Sukhoranjan Bali was one of the 15 people whose statements to the investigation officer were allowed to be admitted. He was initially a prosecution witness. Indeed, in a number of print and television interviews, Bali denied that the accused, Sayedee, was involved in his brother’s murder.

On October 21, 2012, the defence asked the tribunal to summon Bali as a witness. It declined the request. Two days later the tribunal stopped the defence from bringing any further witnesses—though it had only called 17 out of their allotted 20 witnesses.

Later, in October, the defence sought permission from the tribunal to bring Bali as a witness even though the tribunal had closed the defence case. This application was due to be heard on November 4, but on that day, the tribunal did not hear it.

The next morning, the tribunal was due to hear the prosecution’s closing argument; the defence lawyers brought Bali who was allowed to give evidence. Outside the tribunal gates, defense lawyers claim, plainclothes men, who claimed that they were from the police detective branch, took him away in a police car. While there are no independent witnesses, his distraught wife has confirmed that he went to Dhaka to give evidence at the tribunal. There has been no response from his phone since that day.

Surely, demanding justice for the war crimes in 1971 is a noble and principled attempt at achieving the due process of law. It was hoped that it will bring an end to impunity for those responsible for heinous crimes. But Sayedee’s trial, and the tribunal’s working, suggest that the process has failed to live up to these lofty ideals.  

The writer is a journalist based in Dhaka.

This story is from the print issue of Hardnews: DECEMBER 2012