FOR Bangladesh, which was born out of a bloodbath and which has been through repeated political shocks, the trial of those accused of crimes against humanity during its war of independence against Pakistan in 1971 is the biggest challenge. On January 21, the International Crimes Tribunal (ICT) in Bangladesh in its first verdict awarded the death penalty to Abul Kalam Azad (65), a former leader of Jamaat-e-Islami’s infamous students’ wing. Azad, also known as “Bachchu Razakar”, was found guilty of murdering 14 people, raping scores of women, and torturing villagers and setting their homes ablaze when he was the local commander of the Razakar, an auxiliary force of the Pakistan Army.
The judgment of the ICT-2, one of the two courts trying 12 top war crime suspects, turns the spotlight on the nine-month-long war during which the marauding Pakistan Army, along with its local cohorts, killed three million people and violated an estimated 400,000 women.
“We should not forget the millions of victims who wanted their tormentors held accountable,” Justice Obaidul Hassan, the chairman of the tribunal, and his two fellow judges, Justice M. Mozibur Rahman Miah and Justice M. Shahinur Islam, observed while pronouncing the historic verdict. “The passage of time does not diminish the guilt. Justice delayed is no longer justice denied,” they said.
The trial was long overdue. In fact, the process started way back in 1972, but was frustrated by General Ziaur Rahman after the assassination of Sheikh Mujibur Rahman, the founding father of Bangladesh, in 1975. On March 25, 2010, the government of Sheikh Hasina formed a tribunal on the basis of the country’s International Crimes (Tribunals) Act, 1973. The Act was amended in 2009 and 2012. The second tribunal was formed in March 2012.
Azad was tried in absentia as he had reportedly fled the country hours before a warrant of arrest was to be issued against him on April 3, 2012. He used to appear regularly on a television channel to deliver religious sermons.
The ICT-2 held Azad guilty on seven out of eight counts including genocide and rape. It noted that the accused deserved imprisonment for three offences but it decided not to award separate sentences as he had already received the death sentence. The court awarded him the death penalty, to be carried out by hanging under the International Crimes (Tribunals) Act, 1973.
Azad was involved with the Islami Chhatra Sangha, the then militant student wing of the Jamaat-e-Islami, and was a close associate of Ali Ahsan Mohammad Mojaheed, the then president of the wing in former East Pakistan. Mojaheed, who is also facing war crime charges, is now the Jamaat’s general secretary. As an active accomplice of the Pakistan Army, Azad was directly involved in the killings, genocide and instances of rape in Faridpur and its neighbouring areas. Before going into hiding, he was the chairman of the Masjid Council, a non-governmental organisation, founding general secretary of the Council for Interfaith Harmony, country representative of the Islami Fiqah Academy of Jeddah and the editor of Jiggasa.
Since the tribunal enjoys the legal status of a High Court, a convict has the right to file an appeal with the Appellate Division of the Supreme Court within 30 days of the judgment. Azad will not have the right to appeal unless he surrenders or is arrested within 30 days. But some legal experts say that if he is arrested or surrenders after the 30-day period and seeks the permission of the Appellate Division to file an appeal, the apex court has the special power to consider it. Given the human tragedy that preceded the formation of Bangladesh, many people were unable to control their tears when the 112-page verdict was read out. One of the victims’ son, Gopal Das, said: “My father’s soul will now rest in peace. Like me, thousands of sons, daughters and family members of martyrs are waiting to see other war criminals walking to the gallows.”
In all, 22 prosecution witnesses, including some victims, victims’ family members and the investigation officer of the case, testified against Azad. The state-appointed defence counsel failed to produce any witnesses because of the “non-cooperation” of Azad’s family members.
Generally, people welcomed the verdict and thanked the court for bringing to justice one of the notorious Razakars, whose hands were stained with the blood of innocent people. They demanded that Pakistan extradite the convict who is widely believed to have fled to that country.
Tribunal's observation
The tribunal held that Azad was “guilty of crimes against humanity beyond a reasonable doubt” and that “evading trial for the offences of which he has been charged with signifies his culpability”. Law Minister Shafique Ahmed said a red alert would be issued through the Interpol to have the convict brought back home.
“Undeniably the road to freedom for the people of Bangladesh was arduous and torturous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Bangalees did for their emancipation,” the tribunal observed. “The perpetrators of the crimes could not be brought to book, and this left a deep wound on the country’s political psyche and the whole nation. The impunity they enjoyed held back political stability, saw the ascent of militancy, and destroyed the nation’s Constitution.”
The judgment said: “And most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.” As a result, three million people were killed, about a quarter million women raped, about 10 million people forced to flee to India and millions of others internally displaced. The verdict said women were tortured, raped and killed. With the help of its local collaborators, the Pakistani military kept numerous Bangalee women as sex slaves inside their camps and cantonments.
The Jamaat-e-Islami had not only opposed the creation of Pakistan in 1947 but also the independence of Bangladesh in 1971. It was the brains behind the creation of auxiliary forces such as Razakar, Al Badars and Al Shams to help the Pakistan Army. These forces were formed to collaborate with the Pakistani military in identifying and eliminating all those who supported with the war of independence, individuals belonging to minority religious groups, especially the Hindus, nationalists, secular intellectuals and “unarmed” civilians.
Gravest of crimes
As the trial faced political criticism at home and hostile propaganda abroad, the judges also gave their views on some questions. The tribunal pointed out that Nazi war criminals of the Second World War were still being tried, and the trials of genocides committed during the 1973 Chilean revolution and the Pol Pot regime in Cambodia in the 1970s were still going on. Besides, neither the Genocide Convention of 1948 nor the Geneva Conventions of 1949 contain any provision on statutory limitations to try war crimes and crimes against humanity.
“In the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes,” the judges observed. Crimes against humanity and genocide, the gravest crimes of all, never get old. “In Bangladesh, the efforts initiated under a lawful legislation to prosecute, try and punish the perpetrators of crimes committed in violation of the customary international law are an indication of valid and courageous endeavour to come out from the culture of impunity,” the tribunal stated.
The tribunal has also dwelt on the country’s failure to try the 195 listed Pakistani war criminals as they were released, thanks to the tripartite agreement between India, Pakistan and Bangladesh signed in 1974. “Such tripartite agreement, which is merely an executive act, cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.”
Even though the verdict has come four decades late, Bangladesh badly needed a closure of its historic wounds. The Islamists and their patronisers dubbed the trial as the fulfilment of a political agenda of the ruling Awami League. Sheikh Hasina, whose government is facing stiff opposition from the Jamaat-e-Islami and the major opposition Bangladesh Nationalist Party (BNP) to abandon the process, remarked: “Today is a special day for the nation. We have pledged to try the war criminals to free the nation from a stigma. And through the verdict the process of implementation of the pledge has started.” Except Begum Khaleda Zia’s BNP, which described the trial as a “political agenda”, the people of Bangladesh and all major political parties have welcomed the verdict. The political parties insisted that the verdict be executed soon. The war veterans of 1971, the families of the victims and the new generation of Bangladeshis have expressed happiness at the fulfilment of one of their long-cherished dreams. They felt that the trial was transparent and conducted under the due process of law.
Attention is now focussed on the cases involving other top Jamaati leaders, who include Ghulam Azam, the founder of East Pakistan Jamaat, Matiur Rahman Nizami, the current chief of Jamaat, Delwar Hossain Sayedee, Abdul Quader Molla, Ali Ahsan Mohammad Mujaheed, and Kamaruzzaman. The cases of Salahuddin Quader Chowdhury and Abdul Alim, the two widely suspected war criminals who later joined the BNP, are also in their final phases. Three other suspects—ATM Azharul Islam, Mir Kashem Ali and Abdus Subhan—all belonging to the Jamaat-e-Islami, are awaiting charge sheets.
The verdict will surely go down in Asia’s history as the first judicial order on heinous crimes on humanity and remove the stigma that the nation had to bear for four decades. Despite various limitations and shortcomings, the Sheikh Hasina government single-mindedly went ahead with the trial.
