Old wounds

Print edition : June 10, 2016

Veterans of the liberation war after the supreme court upheld the death penalty for Jamaat-e-Islami leader Motiur Rahman Nizami, in Dhaka on May 5. Photo: AFP

Nizami after his sentencing in January 2014. Photo: AFP

Pakistani Jamaat-e-Islami supporters offer prayers for Nizami in Lahore on May 11. Photo: K.M. Chaudhary/AP

Pakistan, which has never apologised for the crimes committed by its army personnel during the 1971 Bangladesh war, continues to oppose the trials that bring to book the war criminals.

The war crimes trials are generally seen in Bangladesh as something that the nation owes to itself to bring to book the war criminals, who for decades have got off scot-free. The trials began in 2010 under the International Crimes (Tribunals) Act, 1973. So far 25 cases have been tried and 28 people have been convicted for genocide, murder, rape, abduction, torture, forcible religious conversion and other crimes which are internationally considered to be among the most serious. Five of those convicted have been executed, two died of old age in jails, some are absconding, and others are serving time in prison.

For Bangladesh, which has gone through turbulent times following its bloody rupture from Pakistan that was opposed by powerful countries such as the United States, China and Saudi Arabia, the trial of the war criminals of 1971 is a courageous exercise. Initiating the trials was a risky move for the government because top war crimes suspects had become politically and financially influential in the past three decades under successive military and pseudo-democratic regimes.

Sheikh Hasina’s government has been facing much criticism from international lobbyist firms engaged by war crimes suspects and their overseas patrons. Some human rights groups, which seem to be concerned only for the accused but not for the victims of the 1971 war, are also criticising the trials. However, the trials enjoy popular support at home. The credit must go to Prime Minister Sheikh Hasina, daughter of the country’s founding father, Sheikh Mujibur Rahman.

Understandably, Pakistan is not keen on the trials, for the judicial process will re-explore the role of Pakistan’s war machine and its local Islamist cohorts. Its first reaction came in December 2013, when its parliament passed a resolution following the execution of the convicted war criminal Abdul Quader Mollah, a key leader of the Jamaat-e-Islami, which had fought to resist the liberation of Bangladesh. The Pakistani government and parliament issued critical statements when the war criminals Kamaruzzaman, Ali Ahsan Mohammad Mujaheed and Salauddin Quader Chowdhury were hanged after the Supreme Court upheld their conviction.

On May 11, Bangladesh executed Jamaat-e-Islami chief Motiur Rahman Nizami, who had led Al Badr, a notorious killing squad that supported the Pakistan Army’s genocidal campaign against the Bengali population. Reactions from Pakistan came both before and after the execution. In a unanimous resolution, the Pakistani parliament condemned Bangladesh’s war crimes trials and described them as against the law, justice and human rights. Pakistan’s Foreign Ministry issued a statement saying it was “deeply saddened” over the hanging of Nizami. “His only sin was upholding the Constitution and laws of Pakistan,” the statement said.

To most Bangladeshis, that must sound like a sick joke, for in 1971 Pakistan had no Constitution and the only law was Martial Law, which hastened the partition of the country. Nizami’s trial considered the crimes that he had committed 45 years ago, when he was the chief of the Jamaat’s student wing, the Islami Chaatra Shibir, and commanded a notorious killing squad. It did not concern itself with his present political identity or affiliation.

Pakistan’s consistent support to condemned war criminals has caused an outcry in Bangladesh and may further strain bilateral relations. The government, the 1971 war veterans and activists have termed the Pakistani reactions a brazen attempt to meddle in the country’s internal affairs. “Pakistan should realise that Bangladesh has been an independent country for the last 45 years and that it is not a part of Pakistan anymore,” remarked Law, Justice and Parliamentary Affairs Minister Anisul Huq. He said Pakistan should thank Bangladesh “for the magnanimity it showed by allowing occupation soldiers to return home after their unconditional surrender in Dhaka, even though they had committed genocide and other heinous crimes in 1971”.

Pakistan has said that Nizami’s execution was a “violation of the agreement signed among Bangladesh, India and Pakistan in 1974”. Pakistan said Bangladesh should “uphold its commitments as per the agreement”. Bangladesh retorted that the agreement was meant to create an environment for good neighbourliness and peaceful coexistence following the 1971 war and it never implied that the perpetrators of war crimes should be able to evade justice. Bangladesh also pointed out that Pakistan had failed to take back its own stranded citizens in the 45 years that have elapsed since the war.

Legal experts argue that the 1974 agreement had no validity as neither Bangladesh nor Pakistan endorsed it in their parliaments. Also, there was nothing in the agreement about the local collaborators of the Pakistan Army, who are now facing trial. Also, according to Section 53 of the Vienna Convention 1969, to which Bangladesh is a signatory, there are some crimes that cannot be forgiven by any government, and genocide is one of them.

Bangladesh also alleged that Pakistan had failed to bring to justice the Pakistani “war criminals” who had been identified and held responsible for the mass atrocities committed in 1971.

A year before the tripartite agreement, Bangladesh and India announced a “simultaneous repatriation” plan to end the deadlock of Pakistani prisoners of war (POWs). Under the plan, India would repatriate most of the 93,000 Pakistani POWs who had surrendered in Dhaka before the joint Bangladesh-India command on December 16, 1971. In return, Pakistan would release some 4,00,000 Bangladeshis stranded in Pakistan and take back 2,60,000 Biharis (Urdu-speaking non-Bengalis) from Bangladesh.

Bangladesh made it clear that India would not release the 195 “Pakistani war criminals”, military officers and jawans, as they would be tried, along with their local collaborators, for war crimes.

Pakistan refused to accept the Bangladeshi position. It threatened to hold similar trials for Bangladeshis trapped in Pakistan if Bangladesh went ahead with the trial of the 195 Pakistani military personnel. Pakistan, in fact, quickly seized more than 200 Bengalis as “virtual hostages”.

Bangladesh eventually buckled, fearing for the fate of the 4,00,000 Bengalis trapped in Pakistan. On the assurance that Pakistan would try the 195 Pakistanis held in Bangladesh for war crimes, Bangladesh withdrew its demand for trying them in Dhaka. But Pakistan did not hold any trial, even though its own Hamoodur Rahman Commission recommended such trials.

Bangladesh must be the only country where forces that committed crimes like genocide against its nationals have been allowed to function as legally recognised political parties. The Jamaat was banned by the Sheikh Mujibur Rahman government soon after the country’s independence. But Mujib’s assassination in 1975 and the regime change that followed paved the way for its revival in 1979. The Jamaat has never apologised for its crimes.

The “killers of 1971” were eventually rehabilitated in places of honour, and Nizami was elevated to a Cabinet position in the Khaleda Zia government. Most people considered this an insult to those who had fought and died for independence. In the last 45 years, neither Nizami nor any other Jamaat leader or war criminals ever expressed remorse, let alone seek forgiveness of the people.

Amid the straining of ties over the war crimes trials, Pakistan and Bangladesh have both been lodging protests with each other’s High Commissioner. Liberation War Affairs Minister A.K.M. Mozammel Huq asked Pakistan to “stop interfering in our internal matters. Otherwise, it will affect our diplomatic ties, as demanded by the people.”

Activists in Bangladesh have been urging the Sheikh Hasina government to adopt “an aggressive diplomacy” in response to Pakistan’s position. They say that Bangladesh should immediately start the trial of the 195 identified Pakistani war criminals who were repatriated along with the 93,000 POWs following the 1974 agreement.

Global opinion has already shifted towards accepting Bangladesh’s right to try its own citizens for war crimes, though there are still reservations about the awarding of the death penalty. Some Western human rights watchdogs criticised the trials for not having followed the “international fair trial standard”, without specifying what their “international standard” means.

Turkish President Recep Tayyip Erdogan made a statement on the eve of Nizami’s execution. Earlier, he had urged the Bangladesh Prime Minister to stop the execution of a condemned war criminal, Abdul Quader Mollah, in 2013.

In December 2012, the then Turkish President, Abdullah Gul, wrote to his Bangladeshi counterpart, calling on him not to put former Jamaat Ameer, Ghulam Azam, to death even if he was found guilty. The Jamaat has close ties with Turkey’s ruling Justice and Development Party. India stood by Bangladesh, as it did in 1971. Indian government spokesman Vikas Swarup said on May 12: “The issue of ‘war crimes trial’ is internal to Bangladesh. It has wide popular support. India has also been supportive of a judicial process to address pending issues of retributive justice for war crimes committed during the movement for the independence of Bangladesh in 1971.”

The convicted war criminals, including Nizami, have enjoyed every opportunity to defend themselves against the charges. The highest court of the country upheld the death penalty awarded to them by the war crimes tribunals. The executions took place only after all due legal processes had been followed.

In the case of the Jamaat supremo, it took around seven years to complete the legal process. Yet Jamaat-e-Islami could not accept the outcome. The original law under which they were tried did not have the provision for a convict to file an appeal with the Appellate Division of the Supreme Court. In addition, the apex court created a precedence that allowed war crimes convicts to file review petitions against the court’s own judgments on appeals.

The Jamaat has observed 42 countrywide hartals since 2013 to denounce the trial verdicts. After the first conviction, of the Jamaat leader Delwar Hossain Sayedee, the Jamaat and the Islami Chaatra Shibir launched violent agitations and clashed with the law enforcers, leading to the death of 33 people, including four policemen.

The judiciary in any sovereign country is free to take action against its own citizens according to the law of the land. And in the case of Bangladesh, it must not be forgotten that three million people of this nation were killed and between 2,50,000 and 4,00,000 women were raped by Pakistan Army personnel and their local cohorts.

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