The Politicisation of the Bangladeshi War Crimes Tribunal
In 2011, hundreds of thousands of Bangladeshis went to the streets chanting ‘Hang him! Hang him!’ (‘Fashi Chai! Fashi Chai!’) in protest against the sentence of life imprisonment handed down to Abdul Quader Mollah by the International Crimes Tribunal (ICT), the visceral calls for blood-spill belying the carnival atmosphere at the Shahbagh intersection in Dhaka. This was the biggest social movement Bangladesh had seen in twenty years. The Bangladeshi government gave into the protestors’ demands, changing the ICT’s statutes in order to allow the prosecution to appeal the sentence. Mollah was sentenced to death and executed in December 2013. Despite claims that the ICT seeks redress for the victims of crimes perpetrated during the 1971 War of Liberation that led to the formation of an independent Bangladesh, the needs of victims themselves have been largely overlooked. Instead, the government has coopted victims in order to further a political agenda. This agenda seeks to undermine the Awami League government’s opponents, the Bangladesh Nationalist Party (BNP) and the Jamaat-e-Islami, by identifying them beyond doubt with the perpetrators of war crimes. In this way, the ICT is desperately flawed. By ignoring the wishes of victims themselves, it fails to bring them justice. In acting as a political tool of the government, it has failed to comply with international standards of due process (Robertson 2015). In this context, the use of capital punishment is doubly troubling. Not only are executions carried out despite sometimes dubious evidence, they are also politically motivated.
The International Crimes Tribunal established by the Awami League government in 2010, purports to bring justice at last to the victims of the 1971 Liberation War As part of this, ICT judges are empowered to issue the death penalty to those guilty of ‘the most egregious crimes’ (D’Costa & Hossain 2010). The understanding of justice in the ICT is predominantly retributive. The tribunal’s sentences are intended to punish perpetrators, rather than to rehabilitate them. Some survivors of the war, including those who lost family members, have undoubtedly welcomed the state execution of convicted war criminals as a form of vengeance. Many of those who celebrated the executions of Mollah and Kamaruzzaman saw avenging the deaths of family members as an essential part of justice: ‘Kamaruzzaman guided the Pakistani soldiers into our village. Now as he has been hanged, the widows and the children of the martyrs welcome it’. The scale of the Shahbagh protests show that there is clear popular support among some Bangladeshis for the use of the death penalty by the ICT as a form of justice.
However, although the female survivors of wartime rape are a common trope in the ICT’s proceedings and in making calls for justice, the needs of these women themselves have been largely overlooked. To the extent that their testimonies are available, it is clear that many of the women who survived sexual assault, or who were left orphaned or widowed by the war, seek alternative forms of justice, which would allow them to move on. Women subjected to sexual violence during the war have been erased from the national narrative, reduced to symbols of the dishonour brought on the Bengali community, rather than giving them either the space to speak for themselves or the choice to remain silent (D’Costa 2011). Despite early attempts to honour these women in the aftermath of war by giving them the title of Birangona, or war heroine, the word soon became a label of social exclusion (D’Costa 2011, 151).
For those women that are prepared to talk about their experiences, acceptance by their communities is their primary concern (ASK 2013). Many of the women subjected to the most abhorrent forms of violence favour reconciliation over retribution. As part of this, they seek the opportunity to grant forgiveness to their violators (Saikia 2011). This chance has not been granted, and some women feel that their stories have been exploited by the government in order to further a political agenda. In the words of Rumana, who was orphaned during the war and whose family has been ostracised by Bangladeshi society since:
The pain is that no government till (sic.) date has taken notice of us. No government has thought of us. On the contrary, everyone has tried to politicise things. They want to make us their activists (ASK 2013, 49).
Successive governments have failed to provide social or economic support to the victims of wartime rape and to girls orphaned by the war, who have suffered both shame and poverty. Despite some support for the ICT as a way of bringing the perpetrators of war crimes to justice, the more pressing concerns continue to be socioeconomic forms of justice. Meanwhile, the execution of the perpetrators of war crimes eliminates completely the opportunity for their victims to pursue reconciliation. In this light, the insistence by the Awami League government that it seeks accountability and justice for the crimes committed in the Liberation War appears rather cynical.
Why, then, if the International Crimes Tribunal in general – and the use of the death penalty in particular – does not respond to the needs of victims, has the Awami League government chosen to maintain both? The criticism from the war’s female victims about the use of the war crimes tribunal for political ends rings true. The workings of the tribunal suggest that the trials are subject to severe political intervention, which has undermined their claims to legitimacy. Capital punishment is a crucial part of this politicisation. The government has demonstrated that it is prepared to intervene in the workings of the ICT. Most egregiously, it rushed through an amendment to the tribunal’s statutes that allowed the prosecution to appeal verdicts and sentences. This right of appeal was then applied retroactively to successfully challenge Abdul Quader Mollah’s sentence to life imprisonment, which was increased to a sentence of death. Importantly, this action was taken in response to the Shahbagh protests, and prime minister Sheikh Hasina insisted that the judicial panel should ‘understand the sentiment of the people’ (Robertson 2015, 70-1). Shahbagh was the biggest social movement Bangladesh had seen in twenty years, drawing hundreds of thousands of protestors from across the country. Bangladeshi democracy is weak and, since its establishment in 1991, political opposition has been played out on the streets as much and even more than in parliament. Hartals, or strikes, are commonly used to force the government’s hand, and ceding to the demands of street politics is common practice (Van Schendel 2009). But for the executive to give into protestors is one thing, for it to force the judiciary to do the same, is quite another.
For the Shahbagh protestors themselves, the execution of the perpetrators of war crimes might be the only way for victims and their communities to obtain a sense of security. As the language of Bangladesh’s main Islamist party, the Jamaat-e-Islami, has become increasingly intolerant of brands of Islam it regards as deviant, memories of the Punjabi elite’s attitudes to what it regarded as Hinduised Bengali Muslims, and to Hindu Bengalis, are likely to assert themselves (D’Costa 2011). The ‘victory’ sign flashed by Mollah on leaving court, after being sentenced to life imprisonment, was interpreted by many Bangladeshis as confidence that a BNP-Jamaat coalition government would release him. For those to whom he is still 1971’s Butcher of Mirpur, this is cause for both fear and anger. Mollah’s execution is at least in part a symptom of a weak democratic system and a judiciary that is not sufficiently independent to resist governmental interference. Nonetheless, mob justice of this kind clearly undermines the court’s independence and is damaging to its claims to accountability (Robertson 2015, 76-7).
And the government’s political motivations go beyond a need to bow to popular pressure. The Awami League has used the ICT to strengthen its version of the events of 1971. Atrocities were committed by both sides but the ICT undertakes to try only those Bangladeshis who fought alongside the Pakistani army. Members of the Pakistani army and government are not covered by the tribunal; nor are the so-called freedom fighters, or Mukhti Bahni, who fought for liberation, though they too targeted civilians (Bose 2011). The ICT is, by its very nature, political. Moreover, all of those tried so far are senior members of either the main opposition party, the BNP, or its ally, the Jamaat-e-Islami. This undermines the tribunal’s credibility – particularly among members of the Jamaat and its supporters, who claim that the government is using the tribunal to discredit and even eliminate the party.
The bias of the ICT’s bench was exposed in 2012 when The Economist revealed that the presiding judge, Justice Huq, was receiving advice from a Bangladeshi lawyer in Brussels, Ahmed Ziauddin, who had also been advising the prosecution. The content of leaked Skype and email conversations demonstrated that the tribunal was determined to achieve convictions, totally violating the defendants’ right to a fair trial. The Supreme Court also appears to be biased: Justice Sinha’s interpretation of section 20(2) of the ICT Act as meaning that ‘awarding the death penalty is the rule’ for defendants found guilty by the tribunal is troubling on two counts. It fails to distinguish between the magnitude of different crimes; and Sinha’s understanding of the law benefits the Awami League, by giving judicial support to the government’s political statements in favour of the execution of war criminals (see Robertson 2015, 76-7).
The politicised nature of proceedings is best understood in the context of the contested meaning of the war of 1971 and indeed of the meaning of Bangladeshi identity. Conflict over these issues has increased since democratisation in the early 1990s; and in recent years the competition for power between the BNP and the Awami League has been replaced by the battle between an Islamist vision of the state propounded by the Jamaat-e-Islami, and the Awami League’s more secularist, though still predominantly Muslim, conception. This can be seen in the increasingly sectarian language used by the Jamaat, which casts the Ahmadiyya sect as anti-Islamic and Hinduised and the Shahbagh protestors as atheists. This language is, as D’Costa has pointed out, troublingly similar to that used by the Pakistani leadership in the lead up to and during the war of 1971, which saw the slaughter of tens of thousands of civilians by even the lowest estimation, and a genocide against the Bengali Hindu population (2011, 109; Bose 2011a).
But Shahbagh has not been the only popular movement. Another group of protestors opposed Mollah’s execution, and claimed that the use of the death sentence was driven by political, rather than judicial, motivations. This criticism is not without basis. Of those indicted by the ICT, all but two are prominent members of the Jamaat-e-Islami. The government was able to secure the death penalty for Mollah, despite the ICT’s initial sentence of life imprisonment. This makes his execution in December 2013 appear worryingly like a summary execution, particularly since he was hanged only days after the Supreme Court judgment awarding capital punishment, giving his lawyers little chance to appeal the sentence (Robertson 2015, 73). The award of death sentences to two men tried in absentia, without the possibility of retrial should they return to the country, is further indication of the government’s determination to eliminate the Jamaat leadership. The Awami League has used the undoubted popular support for both the ICT and its use of capital punishment as a useful front for this aim.
For families of the victims of crimes committed during the 1971 War of Liberation, vengeance and anger are natural responses. There is significant popular support in Bangladesh for the execution of those found guilty of war crimes. However, the needs of the victims themselves, and particularly of the women survivors of war crimes, have been overlooked in favour of a retributive understanding of justice that serves political ends. Women continue to be sidelined in the national response to war crimes and genocide, while the government has used popular demands for the execution of convicted war criminals to justify acts that serve its own self-interest. Capital punishment through the International Crimes Tribunal is part of the ongoing conflict over the identity of the Bangladeshi nation. The meaning of the 1971 war is played out through the prosecution of alleged war criminals, predominantly drawn from the leadership of the Jamaat-e-Islami. The executions demonstrate the determination of the Awami League government to eliminate its political opponents. In the course of the ongoing politicisation of war crimes trials, the Birangona women continue to be overlooked. Alternative forms of justice that might meet their needs have been disregarded. No government since independence has made any effort to meet the socioeconomic needs of survivors of wartime sexual assault or of those orphaned by the war. And despite reconciliation being favoured by many Bangladeshi war crime victims, the battle between the Awami League and the Jamaat leaves no room for it.
Ain o Salish Kendra (ASK) (2013), Rising from the Ashes: Women’s Narratives of 1971, English Edition, University Press Limited, Dhaka, first published in Bengali by ASK in 2001.
Bose, Sarmila (2011a), ‘The Question of Genocide and the Quest for Justice in the 1971 War’, Journal of Genocide Research, Vol. 13, No. 4, pp. 393-419.
Bose, Sarmila (2011b), ‘”Dead Reckoning”: A Response’, Economic and Political Weekly, 31 December, pp. 76-79.
D’Costa, Bina (2011), Nationbuilding, Gender and War Crimes in South Asia, Routledge, London.
D’Costa, Bina & Hossain, Sara (2010), ‘Redress for Sexual Violence before the International Crimes Tribunal in Bangladesh: Lessons from History, and Hopes for the Future’, Criminal Law Forum, Vol. 21, No. 2, pp. 331-359.
O’Donnell, Charles Peter (1984), Bangladesh: Biography of a Muslim Nation, Westview, Boulder, Colorado.
Robertson, Geoffrey (2015), Report on the International Crimes Tribunal of Bangladesh, International Forum for Democracy and Human Rights.
Saikia, Yasmin (2011), ‘Insaniyat for Peace: Survivors’ Narrative of the 1971 War of Bangladesh’, Journal of Genocide Research, Vol. 13, No. 4, pp. 475-501.
Van Schendel, Willem (2009), A History of Bangladesh, Cambridge University Press, Cambridge.