I have borrowed the title of this article from a working paper prepared by Sir Desmond de Silva, former Chief Prosecutor of the Special Court for Sierra Leone. In it, De Silva speaks about Bangladesh, saying that the country was born in violence, as those who wanted the country to remain as East Pakistan fought against those who sought independence. According to many estimates, the Liberation War, as it is now known, left nearly three million dead, a death toll higher than the Rwandan Genocide, the Yugoslav wars of the 1990s and the Sierra Leonean and Liberian civil wars all put together. As it is beyond doubt, De Silva says, that crimes were committed on a massive scale in Bangladesh and as many of the victims as well as perpetrators of serious crimes are still alive, it is still possible to bring to justice those from both sides accused of committing atrocities during the conflict. He continued: “As for the trial of Charles Taylor, former President of Liberia, by the Special Court for Sierra Leone for which I was Chief Prosecutor, it underlines the need to ensure that the hammer of international justice is brought down on those who commit the most egregious crimes by means of trials by impartial and independent judges.” The well-known prosecutor indicated that in 2010, he was approached by Stephen Rapp, the US government's Ambassador for War Crimes and the colleague who succeeded him as Chief Prosecutor in Sierra Leone, to enquire if he would assist the efforts to learn whether a new, locally formed “International Crimes Tribunal” in Bangladesh met international standards or not. “After reviewing the laws and regulations of this new court, I declined,” he said. According to De Silva, what was clear then, and is even clearer now, is that Bangladesh does not have the independent judicial and investigative capacity to conduct trials of international crimes. The rules and procedures of the court are simply not consistent with international standards as followed by the Special Court for Sierra Leone and similar bodies. Far from this being a personal view, many others, including international legal and human rights organizations have reached the same conclusion. Human Rights Watch, to take but one example, has described the tribunal as “riddled with questions about the independence and impartiality of the judges and fairness of the process.” This is a deeply disturbing assessment, de Silva pointed out. He noted that the current government of Bangladesh led by Prime Minister Sheikh Hasina and her Awami League party are the heirs of those who fought for the independence of Bangladesh while those on trial opposed independence. Therefore, it is evident from these trials that the victors of the Liberation War are attempting to crush those who lost the conflict. For such a process to be considered just, it must be aimed at independently and impartially bringing to justice all those who are individually responsible for the crime, irrespective of their nationality, ethnicity or affiliation. Nothing less will suffice. Justice can only be served for victims and survivors of the atrocities of 1971 if perpetrators from all sides are brought to trial. De Silva also emphasized that it is clear to many people inside and outside the country that the government of Bangladesh is not attempting to use the tribunal to deliver justice for victims, as was their election pledge, but to target its political rivals that it repeatedly labels as anti-liberation. To emphasize this point, he also quoted the report published by the British magazine The Economist last December. The magazine published articles based on intercepted Skype calls which revealed collusion between Bangladeshi judges, ministers and their legal advisers over sentencing suspects even before the trials had finished. Despite the international criticism these reports triggered, the tribunal has now handed out death sentences to three suspects and life imprisonment for several others. De Silva stressed the need for removing passion and politics from this issue so that fair justice can be delivered. For this reason, world powers such as the US and UK– the biggest aid donors to Bangladesh – as well as the UN, should seek to pressure Bangladesh's leaders to commit to internationalizing the trials. The Bangladesh International Crimes Tribunal should be reformed and those cases already heard should be reviewed. If necessary, retrials should be ordered in an international arena. Given the severity of the atrocities committed and the importance of the closure of this chapter for the people of Bangladesh, a stand-alone international tribunal similar to those set up for the former Yugoslavia, Sierra Leone and Rwanda might be the most appropriate, he suggested. Whichever route is taken, De Silva stressed, it is only through internationalization of this tribunal - with international legal standards assured, reliable investigations conducted, and credible evidence presented - that both sides of the political divide will see justice delivered. If this is not done, the current politicized International Crimes Tribunal will only have the effect of creating further violence and division without the reconciliation the people of Bangladesh deserve. If the nation of Bangladesh is to heal, both sides need to see justice done and move on from their painful history to a brighter future where impartial justice will prove to be the cornerstone of a real peace, De Silva cautioned. I have deliberately quoted these observations of the international legal expert De Silva to draw attention to the serious anomalies in the war crimes trials being conducted in Bangladesh. The same observations and criticisms have been articulated by international human rights organizations, as well as criminal law experts and specialist international lawyers. I have pointed out all these factors in previous articles published in this newspaper, and these articles included an appeal addressed to Bangladesh Prime Minister Sheikh Hasina, by virtue of my knowledge of her and her father Sheikh Mujibur Rahman, father of the nation. In the appeal, I asked her to reconsider the issue of the trials as no one sees credibility in them, and as it is clear that they will not help achieve justice. I also mentioned that her father had rolled up the page of the past and looked to the future by issuing a general amnesty as he was fully aware of the difficulty of achieving justice under the conditions that prevailed at that time and that still prevail. I hope that Sheikh Hasina will listen to those whose only concern is the best interests of herself and the people and judiciary of Bangladesh because history will neither forget such things nor show mercy for those doing them.
— Dr. Ali Al-Ghamdi is a former Saudi diplomat who specializes in Southeast Asian affairs. He can be reached at [email protected]
