David Bergman discusses why those who support an end to impunity and justice for victims of war crimes in Bangladesh should also be seeking high standards of fairness and due process at the trials of the accused
In the early hours of 11 December 1971, at about 3.30 am, a group of men, including at least one Bengali, knocked on the door of the family house in Mohammadpur, Dhaka of Sirajuddin Hossain, the executive editor of the daily newspaper Ittefaq. One of them asked the journalist his name and position, and after Hossain told them, they took him away.
At about the same time, a group of armed men came to Naya Paltan and knocked on the doors of the flats rented out by the family of the journalist Ataus Samad. One of the men, a Bengali in civilian dress, asked the tenants in English where Samad lived. Both the tenants told the armed men that he was not in Dhaka but had gone to Kishoreganj to celebrate Eid.
Ataus Samad had in fact moved out of his house in late November and was then living with his sister in a nearby area. Luckily, therefore, he escaped abduction. But on that very same morning those men had come for him, he remembers hearing screams from a residence neighbouring his sister’s house, and a voice shouting, ‘Save me, Save me.’
He thought it was the sound of his friend Najmul Huq, the chief news reporter of the national news agency, the Pakistan Press International, but he was not sure. The next morning he spoke to the guard at the gate of the house where Huq lived, who confirmed that the journalist had been abducted. Huq’s wife confirms that one of the men who abducted her husband was a Bengali.
That same morning, armed men also came looking for the journalist Enayetullah Khan — then editor of Holiday, later to be founding editor of New Age – whose office was then in Naya Paltan (close to Ataus Samad house). A man in the office below told him that some people had broken down a door and beaten a tall young man mercilessly and he heard one of the men say, ‘You are Enayetullah Khan, you must come with us.’
Later that morning, at about dusk, armed men turned up at the house where Ghulam Mustafa, a reporter from the newspaper Purbodesh, who was then living in Rayer Bazaar, Dhaka. Mustafa was at that time outside his house walking his baby who could not sleep. The men asked, ‘Are you ANM Gholam Mustafa?’. He said ‘Yes’. Then they said, ‘Leave the baby for a while and come with us. We have to go to the office.’
After 16th December 1971, the families of Sirajuddin Hossain, Najmul Huq and Gholam Mustafa desperately tried to find their abducted relatives. Mass graves containing the decomposing bodies of other intellectuals taken in those days were found, but they could not find the bodies of their own loved ones.
I know about these and other abductions as, along with a group of young Bangladesh journalists and researchers, and a British television team, I spent a good part of 1994 investigating who was responsible for the murder of over a dozen intellectuals in Dhaka in the dying days of the country’s independence war. No one before or since has I think investigated these series of murders at the level of detail that we did.
The result was an award winning film for British television’s Channel Four called ‘The War Crimes File’.
Many of you may know this film – as at the time it was shown widely in Bangladesh. Screenings were organised by Projonmo Ekkatorer (Generation 71 – a group comprising family members of those who died in the war) and it was later also broadcast a number of times on Bangladesh Television. Although the film was originally made for an English audience, in order to ensure that it could be seen by more Bangladeshis, a team of us working with M Hamid, the well known television producer, made a Bengali-language version of it, which was widely distributed.
The central allegation in the film was that one man, a member of the Jamaat-e-Islami’s student wing in 1971, who after the war had moved to London, was involved in a number of these abductions of intellectuals.
The film also set out evidence to suggest that two other Jamaat-e-Islami members were involved in war crimes in Sylhet.
After its release, the film became an important tool for those highlighting the crimes that took place in 1971 as well as the need for accountability for those who had committed them.
Subsequently, I spent quite some time collecting affidavits to defend libel actions taken out against the broadcaster, Channel Four Television, as well as in trying to get the British authorities to take action against the men, one of them in particular.
All of this is well known to those who have been active in the movement for demanding justice for victims and survivors of war crimes. I am just setting it on record to make it clear that I am quite aware of serious allegations regarding the role of the Jamaat-e-Islami in 1971, the nature of the allegations and that I have been a part of the process of demanding accountability for war crimes in 1971, long forgotten in the west.
However, I see no contradiction in also being a strong supporter of ensuring that the International Crimes Tribunal set up in March 2010 to prosecute those alleged to have committed international crimes in 1971, is independent, fair and follows acceptable due process standards.
This position of course has been, at least at the level of rhetoric, also the view of the Bangladesh government – and several ministers have repeatedly said that the tribunal will match not just the best national standards, but ‘international standards’. The Tribunal’s Registrar has himself also stated that the tribunal will match ‘universally recognised standards.’
For obvious reasons, the need for due process and fairness are requirements for every criminal trial – not just for those accused at the ICT. And whilst the historic nature of the tribunal can easily allow one’s focus to get locked onto the tribunal, it is very important not to forget all the other trials that take place in Bangladesh where just as much may be at stake for both the accused and the victim.
But, at the same time, there are some additional reasons why the issue of high standards is particularly important to this international crimes tribunal.
First, appropriate standards can ensure that the evidence alleging that a person committed international crimes forty years ago is considered in a suitable manner.
As someone who has spent some time investigating war crimes in Bangladesh (at that time around 25 years old evidence) I know first hand that whilst there is collective memory and belief about who is involved in war crimes, it is tough to find direct eye-witness or documentary evidence. Even when you find an eyewitness, there is always the question of whether you can find sufficient corroboration. And then of course there are the inconsistencies that one so often finds between witnesses, when the alleged offence took place so long ago.
It is not that incriminating evidence cannot be found, but the point is that it is far from straightforward, forty years after the event, to collect evidence that a court can justifiably conclude proves beyond reasonable doubt that a person has committed a crime of genocide or a crime against humanity.
Secondly, fair standards can protect judges from government and societal pressures. Holding war crimes tribunals within the very country where the war crimes took place – particularly when they took place on the scale that they did in 1971 – creates some very particular difficulties.
There are very strong passions within Bangladesh about the guilt or otherwise of the accused, and there are very clear challenges on the part of the Tribunal to ensure that they are untouched by these. There are also challenges for the judges, who are themselves Bangladeshi, and who may understandably on a personal level have strong views about what took place in 1971, to ensure that these play no part in the Tribunal’s proceedings.
A proper procedural framework with clear protections for the defence will help establish public confidence throughout the country and abroad that this is the case and that the trials are fair.
Third, a tribunal which deals with ‘international crimes’ has the potential to impact on international processes of accountability for similar crimes beyond Bangladesh. The Bangladesh tribunal is one of the very first national tribunals (i.e not involving any United Nations judges or assistance) involving war crimes taking place and if done right could impact very positively both in terms of case law and on future policy on dealing with war crimes trials. It could set an important trend in the support of establishing national tribunals rather than the very costly UN supported processes.
Yet, unless the tribunal is seen to reflect understood norms of due process, the very opposite could happen – setting back for a long time the argument that national tribunals can deal with accountability for international crimes that took place in their own jurisdiction.
Fourth, there is a world of people outside Bangladesh who know little about what happened in 1971. The Tribunal provides a real opportunity for the country to tell the world about the nine months of the war. This history will undoubtedly be picked up to some extent by the international media, but ensuring high standards at the tribunal should mean that focus of the media attention abroad is not focused on allegations of inadequate standards, but on the story of 1971 as reflected, one hopes, in the strong evidence given at the tribunal.
Fifth, ensuring proper standards takes the wind out of the arguments deployed by the political groups who support the accused, as well as those of their lawyers, who are busy raising criticisms of the tribunal.
This is particularly significant in this case as all the detained men are members of political parties that are now in the opposition.
Although it would have been better had their detentions been investigation-led, rather than the other way round, information in the public domain at the time of their detention does suggest that the seven accused men held by the tribunal were appropriate people for the tribunal to have focused its attention.
Yet, because all the men belong to opposition parties there are the inevitable claims that the government is using the tribunal to settle political scores. The best response to this is to ensure that the trials standards are beyond dispute.
Finally, high standards are the best way to prevent the Jamaat-e-Islami and the accused supporters from portraying themselves as victims of an unjust process. There is something particularly galling to see the Jamaat-e-islami and the BNP, who are not generally known for their interest in due process and fair trial standards, and who, whilst in government showed no interest in criminal justice reforms, to now be raising this issue so loudly (though of course, this is not to say that the Awami League has been any more consistent on this issue between its period in opposition on the one hand and government on the other.)
These are, I think convincing arguments why all those who have been campaigning for accountability, for an end to impunity for war crimes, for the tribunal to succeed in bringing to justice perpetrators, and for redress to the survivors, should at the same time be seeking high standards for the Tribunal. There is no contradiction between these two positions.
This is of course the same perspective taken by the respected international organisations like Human Rights Watch or Amnesty International who are both very strong supporters of accountability for war crimes, but at the same time are earnest at seeking trials that meet relevant standards.
High standards of fair trial and provision of appropriate protections for the defence should be no threat to those interested in ensuring that the right people are convicted.
David Bergman is Editor, Special Reports of New Age. He, along with the editor and publisher of this newspaper has been asked to explain on 27 November why proceedings should not be initiated against them for contempt of court for a previous article published in this paper.