Jalal Alamgir and Bina D’Costa.
Published in the Economic and Political Weekly on 26 March.
A combination of factors has prevented those involved in the horrific genocide of 1971 in Bangladesh being brought to justice. Regional power politics, the economic considerations of Bangladesh immediately after its independence and continuing internal political strife have together held the process back. Now, the return to power in Dhaka of the Awami League has led to a new attempt at conducting war trials of the protagonists – most of whom belong to the Jamaát-e-Islami. But the government has to grapple with time deadlines, differences between domestic and international law and other complexities as it tries to bring about delayed justice for the wrongs done four decades ago. India and Pakistan also have important roles to play in helping the Bangladesh government in this endeavour.
For the last four decades, Bangladesh’s attempt to interpret the brutalities of 1971 has been couched largely in narratives of nationalist glory. This provided the unity of discourse that a war-ravaged country needed. But combined with power politics, it also suppressed legitimate questions that should have been raised and resolved through public debate. Bangladeshis could not ask, for instance, why war criminals were suddenly forgiven after being pursued in the early 1970s. They could not investigate the shady deals that allowed the criminals a grand re-entry into politics in the 1980s and 1990s by Bangladesh’s own nationalist politicians. They could not understand why India, after bearing a huge burden of the war itself, let Pakistani war criminals scot free. They just knew that the war crimes of 1971 were covered up or brushed away by subsequent political crimes.
In the coming days, Bangladesh will begin trials for the 1971 war crimes. There is great public support for the trials, and great hope for closure. But the trials will be limited. They will be limited to local collaborators of the Pakistani army, and they will focus on war crimes only, not the associated political crimes in which many sides, local and foreign, were complicit. We argue that such limited trials can provide closure and reconciliation only by going beyond the pronouncement of a legal verdict; the trials should expose, through dispassionate scrutiny, the larger politics, open questions, and uncertainties that have clouded 1971 for the last forty years. And in this, India and Pakistan have a crucial role to play, and a moral and political responsibility, if not a legal one.
The uncertainty of numbers
We don’t know, for instance, how many people were killed in 1971. On one side is Bangladesh government’s figure, three million, proclaimed quickly after the war and still accepted without question across the country. On the other side is Pakistani government’s claim of 26,000 fatalities, a figure recognized by most as absurd. A recent study suggests that 269,000 people died during the war (Obermeyer et al. 2008). Some analyses propose that 1.5 million is closer to the mark (Rummel 1999). But in Bangladesh, questioning the official figure and proposing proper measurement has long been considered anathema. This has happened because of the sacrosanct space 1971 occupies for Bangladesh, in memories and in lived realities.
A similar shroud hangs over the number of women raped, another serious war crime. The currently accepted estimate is that approximately 200,000 Bengali women were raped by Pakistani soldiers and 25,000 forcefully impregnated. The statistics have been questioned on the pages of this very magazine. But in doubting the rape figures of 1971, academics like Sarmila Bose start with the false premise of pointing to self-reported numbers but not proportions and the ‘intent to destroy.’ A proper estimate of rape must exceed those reported, given the stigma attached to not just rape in general but rape by the enemy.
And, how can genocide be quantified? Numbers are critical in delineating a traumatized society’s experience of war and the magnitude of loss. But precision is notoriously difficult: lack of demographic analysis, methodological concerns to count pre- and post- genocide populations and gaps in recordkeeping pose challenges to quantify large-scale conflict. Debates still exist about the numbers of people killed or women raped in Darfur, Rwanda and Cambodia.
The certainty of genocide
In the end, in defining war crimes, the numbers debate is a red herring. What’s most important is, as the UN Genocide Convention stipulates, the ‘intent to destroy, in whole or in part.’ Mass graves, eye-witness accounts, reportage, combined with memoirs, films and academic work clearly indicate that Bengali men and women were targeted for belonging to the ‘other’ community. All news reports from the front attest to the fact that between March and December, 1971, the Pakistani army massacred a mostly civilian Bengali population. As early as April, The New York Times estimated that the army had killed about 10,000 civilians. We know from witnesses that the Pakistani army used rape to terrorize the populace, to extract information about the insurgency, to boost the morale of soldiers, and to degrade the burgeoning Bangladeshi national identity. Newspapers like The Sunday Times and New Statesman began to use the word “genocide” by June 1971, as did missives from diplomats. A July 1971 mission by the World Bank was horrified to find that entire cities had been flattened: “It was like the morning after a nuclear attack” (New York Times 1971).
Like typical cases of genocide, a deeply racist agenda accompanied the war crimes. From Pakistan’s inception, the Punjabi-dominated state’s racist discourse of detachment had denied the East Pakistani population any rightful belonging within a Pakistani national imagination, considering East Pakistanis/East Bengalis ethnically sub-par. In his memoirs, Ayub Khan, Pakistan’s first military dictator, wrote, “East Bengalis … have been and still are under considerable Hindu cultural and linguistic influence … they have all the inhibitions of downtrodden races” (Khan 1967: 187). Successive West Pakistani leaders were explicit about a poisonous racism toward Bengalis. Asia Times reported the following statement by Yahya Khan, another military dictator: “Kill three million of them and the rest will eat out of our hands” (Chowdhury 2005).
In 1971, the Pakistan Army’s local collaborators, organized as Razakar, Al-Badr, and Al-Shams militias, led many of the massacres, having understood that their atrocities were encouraged and would go unpunished. The racist agenda not only dehumanized Bengalis en masse but targeted Hindus specifically, the absence of circumcision being a marker for death. A Time Magazine cover story quoted a stunned US official: “It is the most incredible, calculated thing since the days of the Nazis in Poland” (Time 1971).
And then in December, Pakistani soldiers and collaborators ferreted out Bengali intellectuals, artists, and cultural icons, and killed them after torture. The backbone of the country’s universities was wiped out: 991 academics were executed. In any war crimes tribunal, therefore, the overall framework of genocide will be easy to establish through the material fact that the killing, rape, and destruction of civilians were planned and deliberate.
Responsibility and realism
By international law, a tragedy of such proportions conferred responsibility on India and Pakistan to investigate and punish war crimes. Both countries had ratified the Genocide Convention that stipulated action against the following: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity in genocide.
A devastated Bangladesh, especially Sheikh Mujibur Rahman, hoped fervently that the war criminals would be punished (ICJ 1976). In December 1971, India had custody over more than 92,000 Pakistani prisoners of war. Initially the Bangladesh government wanted to try some 1,100 of them for war crimes. That was not a number India was willing to entertain, and when India pressured Bangladesh for specific evidence, Mujib’s government narrowed the list and, in the end, presented charges against 195 ringleaders.
But India was keen to move on, and Bhutto bargained over two chips: repatriation of Bengalis stranded in Pakistan, and Bangladesh’s international relations, especially with China, the US, and the Arab League, plus a UN membership. New to foreign relations and reeling from mass destruction, Bangladesh gave in, and was promised by Bhutto a proper trial, in Pakistan, of the 195 accused (Levie 1973; Ahamed 2010).
Justice delayed, and politics muddled
That trial in Pakistan, of course, did not materialize. The Bangladesh government’s attention shifted to the local collaborators. In 1973 the government passed legislation to prosecute war crimes, as defined by international law. The government prepared to prosecute 20,000 collaborators—and then abruptly—and presumably in consideration of lack of resources and a potential for turmoil—issued an amnesty order that released all suspected collaborators.
The turn of events afterwards was astounding. In 1975, Mujib and most of his family were brutally assassinated by dissatisfied factions of the Bangladesh Army. The Awami League (AL) was ousted from power. The generals who took over revoked a constitutional ban on the use of religion for political purposes and permitted Jama’at-i-Islami, a party led by war collaborators, to reenter the country’s politics. For them, Jama’at provided an avenue to foster closer ties to the Middle East, an important source of economic and political support. Within a few years, most of the high-profile war criminals became powerful in a country whose emergence they had earlier opposed. Pakistani army’s war crimes were thus compounded by Bangladesh’s own political crimes.
The AL would not reassume power until 1996. In many ways, the issues of the Liberation War and the ‘spirits and aspirations of independence’ were seen as exclusive to the Awami League, because it had led the East Pakistanis in their nationalist struggle. But even with the AL’s re-assumption of power, economic hardship and everyday politics dominated the agenda; a war-crimes tribunal was simply not a priority.
In the absence of legal venues or nationally organized political forces, there were several individual and local efforts for justice. The most successful of these was led by a single woman, Jahanara Imam, who began a movement directed against Golam Azam, Jama’at’s chief and possibly the most notorious collaborator with the Pakistani army. Her son Rumi was a muktijodhya (freedom-fighter) and was tortured and killed by the Pakistani army. Under her leadership a “Peoples’ Tribunal” was held on 26 March 1992. But the erstwhile BNP government persecuted Imam and other colleagues.
By the 2000s, hopes of war crimes trials, and with it some form of closure, had almost faded. What renewed the demand was the right-wing Bangladesh Nationalist Party’s (BNP) 2001-2006 tenure in government, during which BNP inducted Jama’at leaders into the national cabinet. Some frontline commanders from 1971 organized a movement against this insult, which eventually mushroomed into a national demand for war crimes trials. Endorsing the movement, the AL promised to prosecute war criminals if elected to power. And it won a landslide victory in the 2009 elections.
The Trials and the Challenges
On 25 March 2010, at the 39th anniversary of the beginning of the war, the constitutive bodies for the trials were announced. A three member International Crimes Tribunal, composed of High Court judges, was established. In addition a seven-member investigation body and a six-member prosecution team were also established.
The investigation team was tasked to probe complaints of war crimes, particularly as defined by the humanitarian rules of the 1949 Geneva Conventions. The overall legal framework was constituted by the country’s original legislation, The International Crimes (Tribunals) Act of 1973. The first case, filed by a wounded muktijyodhya, accused four current leaders of Jama’at-i-Islami with the killing of 345 people in 1971.
By now, six persons, including the four accused in the first case, have been arrested under war crimes charges. They include the chief of Jama’at-i-Islami Motiur Rahman Nizami, deputy chief Delwar Hossain Sayedee, its secretary general Ali Ahsan Muhammad Mojahid, and senior leaders Muhammad Kamruzzaman and Abdul Quader Molla, along with Salahuddin Quader Chowdhury, a senior BNP politician. There is speculation that Golam Azam, the former chief of Jama’at would also be brought into trials.
It is this selection that forms the first challenge for the trials. So far more than 250 cases have been filed by aggrieved persons all over the country. It is unlikely that the investigation team, expanded several times since its formation, will be able to probe all these cases properly, especially because the atrocities under question had taken place four decades ago. The budget approved for the trials so far is just US$1.5 million. The trials will therefore focus on only a handful of clearer cases.
To ensure that a few exemplary cases can offer reconciliation at the national level and closure to those whose personal grievances cannot be addressed specifically, the trials, we believe, will have to meet three conditions. First, they have to be accessible and open to the public. Stephen Rapp, the US Ambassador-at-Large for War Crimes, made this point convincingly during his visit to Bangladesh: “It’s important that these cases happen in national level, close to the communities that were affected. Close to the victims. Close to the families of the people who are accused, who can visit and watch and judge for themselves” (Rapp 2011).
Second, the defendants should be those with “command responsibility.” The trials should expose and punish those who committed specific war crimes and also used their power to incite others to commit such crimes. With regard to both of these conditions, the trials have made a good start, and are widely supported across the country, according to polls. The six currently under detention are thought to be the key figures with command responsibility among local collaborators. Court activities have been open and widely reported so far.
The third condition is that the trials must be procedurally fair. The government faces a daunting challenge to balance speed with fairness. Hearings have begun to take place, mostly on the legality and parameters of the detention of the accused. But no trial has begun formally. It will have to gather pace soon, since the AL government is keen to complete the proceedings within 2014, when the next elections are supposed to be held. The AL knows that the trials will be stopped if BNP, the opposition party and Jama’at’s main patron, is elected. Three years, however, is an extremely ambitious timeframe compared to any analogue, such as the trials of Khmer Rouge. The government will be tempted to take procedural shortcuts.
Some of the detained have already accused the government of blocking free access to their attorneys. The government denies the claim. The overall situation will become clearer once the trials begin in earnest, possibly later this year. What complicates the issue is the absence, as yet, of a common definition of “fairness.” The government insists that because the crimes were committed in Bangladesh and because both the victims and the perpetrators are Bangladeshi, the Act under which war crimes are being prosecuted is sufficient. This makes sense. However, the Act itself refers to international law, such as the Geneva Conventions, and Bangladesh, moreover, is a signatory of other relevant international treaties; therefore the trials need to meet international procedural standards.
But the applicable international standards vary. Human Rights Watch, for example, insists that the government abide by the Rome Statute of the International Criminal Court, which came into force in 2002. Bangladesh insists that it is illegal to apply a statute retroactively, and therefore the trials must apply definitions and standards in effect when the crimes were committed. But the government has not ruled out an “updating” of certain aspects of the legal standards when the trials begin.
In this particular regard, the government’s position is on solid ground. However, with regard to another provision, namely, capital punishment, the government’s position is weaker. War crimes trials under international auspices, for decades, have excluded the death penalty as an option. Bangladesh allows capital punishment, and given widespread local support for it, prosecutors will likely seek the death penalty for war criminals. But doing so will reduce international acceptance of the trials.
And Bangladesh will need international support. The government will make a mistake if it thinks that the crimes and punishment of 1971 are entirely a domestic affair. It may be so legally, but it certainly is not morally and politically. Pakistan’s military commanders will not be pursued for war crimes. China and the Nixon administration supported Pakistan, knowing that their money and equipment are being used for genocide. Although the legal focus is on local collaborators, any longer-term closure will be partial unless the public discourse occasioned by the trials exposes the moral and political responsibility of these governments in aiding genocide.
Winning the diplomatic wrangle will require the support of international allies. Pakistan is opposed to holding the trials, which it sees as a distraction to otherwise “normalized” relations. To Bangladesh, Pakistan needs to take accountability for the massacres by issuing a formal apology. Bangladesh also wants Pakistan to agree to an equitable share of pre-war assets and to accept stranded Pakistanis (“Biharis”) who remain in various refugee camps in Bangladesh. Pakistan’s Pervez Musharraf expressed “regrets” over the 1971 “excesses” but, barring some civil society efforts, has not offered anything beyond.
India holds crucial evidence of the war. Some scholars have complained that obtaining that evidence has proven notoriously difficult, and some of it may have been destroyed deliberately. Any support, beyond rhetoric, that India provides will be shaped by consideration of India’s relationship with Pakistan. But India should take a principled stand and offer full assistance to the Bangladesh government. Over the years, India’s moral influence over Bangladesh has waned significantly, and India is frequently seen to be a regional bully rather than a good neighbor. Providing material support for the war crimes trials will go a long way to regain some of India’s lost goodwill. In the end, a widely accepted closure for one of the most brutal chapters in the subcontinent’s history will be undoubtedly good for all three countries scarred by 1971.
Jalal Alamgir is Associate Professor of Political Science at the University of Massachusetts Boston. Bina D’Costa is Fellow at the Center for International Governance and Justice, the Australian National University. Both are members of the Drishtipat Writers’ Collective.
ReferencesAhamed, Syeed (2010): “Trials and Error,” BDNews24, 5 June 2010.
Chowdhury, Debasish Roy (2005): “Indians are bastards anyway,” Asia Times, June 23, 2005.
ICJ – International Commision of Jurists (1976): “Case Concerning Trial of Pakistani Prisoners of War Affaire,” Accessed 8 March 2011 (www.icj-cij.org/docket/files/60/9461.pdf).
Khan, Ayoob (1967): Friends Not Masters (London: Oxford University Press).
Levie, Howard S. (1973): “The Indo-Pakistani Agreement of August 28, 1973,” The American Journal of International Law, 68 (1): 95-97.
Linton, Suzannah (2010): “Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation,” Criminal Law Forum 21: 191–311.
New York Times (1971): “Excerpts from World Bank Group’s Report on East Pakistan,” The New York Times, July 13, 1971.
Obermeyer, Ziad, Christopher J L Murray, and Emmanuela Gakidou (2008): “Fifty years of violent war deaths from Vietnam to Bosnia: analysis of data from the world health survey programme,” British Medical Journal, 336 (June): 1482-1486.
Rapp, Stephen J. (2011): “Transcript of Press Conference of Stephen J. Rapp, Ambassador-at-Large,” (Dhaka: US Embassy, January 13). Available at: http://dhaka.usembassy.gov/uploads/images/zk6sKCpvHfYWcHoeOrjPCg/Rapp_press_conference_110113.pdf
Rummel, R. J. (1999): Statistics of Democide: Genocide and Mass Murder Since 1900 (Piscataway, NJ: Transaction Publishers).
Time (1971): “Pakistan: The Ravaging of Golden Bengal,” August 2, 1971.
 Sarmila Bose, ‘Anatomy of Violence: Analysis of Civil War in East Pakistan in 1971’ EPW, October 8, 2005. We do not consider Bose’s analysis rigorous, because of a lack of methodological clarity, inattention to both state and structural power, and gender sensitivity. Also note that in Bangladesh the war is not articulated as civil war, but rather as the war of Liberation (Mukti Judhdhyo). The terminology has certain legal implications under the Genocide Convention. See Linton (2010).
 See also Tony Taylor (2008) Denial: History Betrayed
 This included nearly 82,000 individuals who fell within the classification of PoWs and 10,000 Pakistanis who fell within the classification of civilian internee.