Bangladesh: a quest for justice

If asked to identify the five most known 20th-century genocides, most informed citizens would probably start with the Nazi holocaust and go on to name Cambodia, Rwanda, Armenia, and Darfur. There is little likelihood that they will include the 1971 genocide in Bangladesh - a tragedy that has become largely invisible in much of the world’s public discourse about genocide.

It is an extraordinary act of forgetting. For the bloodbath in March-December 1971 - when the Pakistani army massacred a largely unarmed Bengali population in the then integral part of Pakistan’s state known as “East Pakistan”, in an effort to quash the region’s demand for autonomy - was at the time the biggest story in the world’s media.

The killing-spree began with the slaughter of around 10,000 civilians within three weeks; by June 1971, headlines in the Sunday Times and New Statesman in Britain were referring to “genocide”. In a pattern familiar from earlier experiences of genocide, specific categories of people were targeted: non-combatant Bengali men and boys (who were killed en masse); Bengali intellectuals, prominent artists, and cultural icons (who were rounded up by Pakistani soldiers and local collaborators in door-to-door searches and taken away for mass execution); Hindus; and women. Ten million refugees sought safety in India.

The treatment of women was horrific. An estimated 200,000 to 400,000 were raped and sexually violated. Many, including girls below 10 years of age, were kept as sex-slaves in military camps.

An accurate count of the victims has never been established; but it is estimated that these nine months saw at least 1 million people slaughtered, and perhaps as many as 3 million. Even the lower figure would make Bangladesh among the fastest as well as the largest modern genocides - comparable to those in Rwanda (800,000 killed in May-June 1994) and Indonesia (between 1-1.5 million killed in 1965-66).

An elusive accounting

Bangladeshis achieved their independence in 1971, but in subsequent years they were unable to find psychological or emotional “closure” on the violent birth of the new state. Pakistan has not issued any formal apology for the atrocities its forces committed, although some elements of Pakistani civil society acknowledge the atrocities perpetrated against the Bengali people. India repatriated 90,000 Pakistani soldiers whom it had detained during the conflict, under the terms of the Simla peace accord; but neither they nor their commanders ever faced trial.

There was an initial effort to establish a process of accountability, when - within six weeks of independence - the post-liberation government announced the Bangladesh Collaborators (Special Tribunals) Order. This was followed in July 1973 by the passing of the War Crimes Tribunal Act which allowed for the prosecution of individuals for genocide, war crimes and crimes against humanity. In these early years of the new state, the government also arrested several thousand individuals suspected of war crimes. But in November 1973, amid fear of turmoil if the issue was pursued, prime minister Sheikh Mujibur Rahman abruptly issued an amnesty order that released most alleged collaborators and made no further provision for ensuring accountability.

The decision to permit the re-entry of the Jamaat-i-Islami into Bangladesh’s political scene was an additional blow to the prospects for justice over the events of 1971. The Jamaat had opposed Bangladesh’s independence; it had organised the dreaded al-Badr and al-Shams death-squads that were responsible for mass killings; and it was led by people who had committed war crimes.

The party took advantage of its restored status to position itself as a kingmaker. It made an alliance with the rightwing Bangladesh Nationalist Party (BNP), gained the support of key military generals, and in 2001 saw its leaders inducted into the ruling cabinet. It eventually became the third most powerful party in the country, and used its strong links to the middle east to import radical ideas into Bangladesh’s national-political discourse.

The impunity of the collaborators had a profound effect on Bangladesh’s politics over later decades. The 1971 genocide became an artifact, a constant if shadowy presence but something removed from actionable politics. Two linked developments disrupted the veneer of “collective amnesia”: the Jamaat’s arrival in government, and the recasting of Bangladesh’s liberation war as a “civil war”, in effect an event with limited casualties for which both “sides” bore responsibility.

The politically-driven attempt to minimise the scale and horrors of the genocide by those directly complicit was vigorously opposed by the combatants of the 1971 war and their frontline commanders. They launched a nationwide movement demanding trials for the war criminals, and won strong support from human-rights organisations, intellectuals, journalists, and families of the dead and disappeared. The centre-left Awami League (AL) endorsed the idea and included the prosecution of war crimes as a manifesto pledge in the December 2008 elections. Its landslide victory, and the crushing defeat of the Jamaat, provided an opportunity to reopen histories, memories and court proceedings (see “Bangladesh: a verdict and a lesson” (13 February 2009).

An unfinished history

Bangladesh's government has sought to deliver on its pledge to hold war-crimes trials, though it is facing renewed legal, political and logistical obstacles. Its current plan is to use the War Crimes Tribunal Act of 1973 (suitably amended) as a legal foundation for the establishment of domestic courts.

But a rushed and expedient process has brought problems. The government did not consider adequately the opinions of legal experts and advocacy groups which pointed out that the act’s definition of key concepts (war crimes, rape, command responsibility) is incomplete or inadequate. There remain questions about procedural transparency, the independence and gender composition of the judiciary, and the expertise of prosecutors in criminal and international law. In addition, many survivors of the genocide are dismayed that the trials will focus only on local collaborators and will not allow the pursuit of Pakistani commanders.

Bangladesh does have competent lawyers and a legal system stable enough to initiate a domestic process; however, political volatility and the limitations of the 1973 act raise concern about whether an internal process alone can see the trials through to the end. Yet putting the trials on a solid footing is crucial to ensure that they will continue to have official political backing in the event that the Awami League is voted out of power when its term ends in 2013.

The international challenges are also daunting. The United Nations has pledged technical assistance, and recommended four of its war-crimes experts to work with Bangladesh’s courts. But the act’s provision for the death-penalty will reduce international support. The interests of states in the region will also come into play. Pakistan opposes the trials, and has sought to mobilise the Jamaat-e-Islami’s allies in the middle east against them. India’s backing for the process may be limited to rhetoric, as it has its relationship with Pakistan and the United States to consider. India also holds critical evidence that would assist court proceedings, and principled cooperation with Bangladesh would foster much-needed goodwill between the two countries. 

The United States is both implicated in the genocide and uncomfortable in the process of establishing legal accountability for the crimes of 1971. Henry Kissinger, national-security adviser in Richard M Nixon’s first administration, bears most responsibility for the US policy of backing its cold-war ally, Pakistan, in its brutal campaign. America should release all its official documents from that dark chapter in history.

Bangladesh needs support from friends and allies abroad if it is to bring the legal process to a successful conclusion. For there is an interest here that goes far beyond politics. The demand that those who perpetrated the crimes of 1971 should be brought to justice is a reminder that the policy of forgetting does not work because the victims always remember. True, a handful of trials will not vindicate the loss of 1-3 million lives and the sufferings of survivors. Many of those culpable of war crimes will, even in the most just outcome, never be found or punished.

Nonetheless, it is imperative that even limited justice is served for one of humanity’s worst massacres. This will provide closure to a scarred populace; it will morally discredit entrenched policies of immunity; it will help strengthen the rule of law; it will mitigate persistent conditions for future conflict; and it will allow Bangladeshis at last to fulfill their core responsibility towards the dead - and the living.