Justice After Genocide: Ways To Deal With The
Past
(First published at News From Bangladesh,
October 27, 1997)
Dr. Zia Uddin Ahmed
Ms. Farida Banu, younger
sister of Dhaka University teacher Mr. Giasuddin Ahmed
filed a case with Ramna Police station on 24 September
1997, about kidnapping and killing of his brother. This
case could very well be one of the routine FIR that
Ramna police receives daily but in reality, it was not.
A sister demanding justice for his slain brother filed
it after long twenty-six years of the incident. Her
brother was a victim of 1971 genocide. All over the
country, still there are, like her, relatives of other
three million or so similar victims of genocide, who are
still waiting for acknowledgment and accounts.
The Criminal Investigation Department (CID), which swung
into action immediately, believes he was killed "under
the same blueprint" as all other intellectuals, at the
fag end of the liberation war. The Investigators,
according to press reports, have assumed Chowdhury Mueen
Uddin, Ashrafuzzaman and others behind this killing. Chowdhury
Mueen Uddin, whose picture was printed in the newspaper
as the principal Al-Badar killer over Bangladesh after
independence, was also investigated by the British
television, Channel Four, in a program `War Crimes File'
in 1995.
The German writer Jurgen Fuchs once said to Adam Michnik,
a leader of the Polish opposition to communist rule
about crimes committed during the communist regime in
East Germany that "if we do not solve this problem in a
definite way, it will haunt us." The past has a curious
habit of coming back, again and again, if a proper
strategy is not followed by the successor governments.
In Bangladesh, past has never left even after its
twenty-six years as the burden of the past could not be
shaken off if no justice is done.
Tormented societies cannot forgive and forget and go on
to the order of a new day unless ways are found to bring
the society to come to terms. Filing of Ms. Banu's case
and the police investigation exemplifies that in
Bangladesh, past has, as yet, remained to be solved.
The purpose of this article is to find out the
strategies, in general, for a nation to cope with its
past. It then intents to examine the process adopted in
Bangladesh to deal with the past, in this case, 1971
genocide. Finally, some conclusions to devise
appropriate ways to live with the past will be made,
which batters the society daily.
Criminal Prosecution:
By bringing action against perpetrators, their superiors
and collaborators, a new regime can signal to victims
and to the whole community that the state no longer
considers the victims to be outcasts. The judicial
process itself can also permit individual survivors and
relatives and friends of victims to tell their stories,
to document the torment and the suffering and to
ventilate the feelings and emotions that have remained
pent-up inside.
Another important reason for prosecuting those who
commit and those who order genocide is that those who
have been the direct victims will then see that justice
has been done. For victims, seeing their tormentors
brought to justice can have a strong therapeutic effect.
Punishing the perpetrators of the old regime advances
the cause of building or reconstructing a morally just
society. Justice be done to put back in place the moral
order that has broken down. Justice be done as a moral
obligation to the victims of the repression. Post-
genocide justice serves to heal the wounds and repair
the private and public damage done. It also acts, as a
sort of ritual cleansing process. A country in which
such cleansing remains unfinished are plagued by
continuous brooding and pondering.
Criminal prosecutions also strengthens fragile
democracies. Survival of the successor regime depends
on swift and firm action against the perpetrators and
their following. If the prosecution issue remains
untouched, other forms of social and political
disturbance may be triggered, with perhaps a risk of
vigilante justice with summery executions. It may also
give birth to conspiracy theories in which the leaders
of the successor regime are labeled as the hidden agents
of the old order that they are treating in a too soft
and ambiguous way.
Failure to prosecute may generate in the populace
cynicism and distrust toward the political system.
Unless the crimes of the defeated are investigated and
punished, there can be no real growth of trust, no
implanting of democratic norms in the society at large,
and therefore no genuine consolidation of democracy.
Prosecutions are seen as the most potent deterrent
against future abuses of human rights. A civilized
society must recognize the worth and dignity of those
victimized by abuses of the past. This has been the
official policy toward collaborators in all West
European countries which, during World War II, were
occupied by Germans.
After Hitler's occupation and genocide, the slogan in
occupying countries were; "no place left for those who
had betrayed their country." The number of unpatriotic
citizens who suffered punishment in one or another form
was about 100.000 in Belgium, 110.000 in The
Netherlands, and 130.000 in France. The figure was
remarkably high in Belgium and The Netherlands, which
had in 1945, population of 8.3 and 8.8 million
respectively. The number of death penalties was 6.763
in France, 2.940 in Belgium, and 152 in The Netherlands.
Various prison sentences were awarded to 53.000 in
Belgium, 49.000 in The Netherlands, and 40.000 in
France. Imprisonment was almost always accompanied by
other sanctions: a fine, confiscation of personal goods,
police supervision after the end of the prison term, the
obligation to reside in a specific town. In Belgium,
damages had to be paid to the state, out of marital
goods or from their heirs if necessary. Tens of
thousands of Dutchmen suffered the loss of nationality.
In Germany, international community put the principal
perpetrators of holocaust on trial, and others were
tried too.
Disqualification:
Disqualification of the perpetrators, of their
agents or of other willing participants, is a second way
to address the question. The idea being, those who have
acted against the people or have collaborated, forfeited
some of their rights, including political and civil
rights, sometimes disqualification accompanies a
criminal conviction, as occurred in post-war Belgium,
France, and The Netherlands. These countries also
introduced some form of `national indignity', which
implied a series of civic disqualifications and a
prohibition of some kinds of professional activity. In
other instances, as in most of the post-communist
countries of East and Central Europe, disqualification
has been preferred as a way to sidestep criminal
prosecution.
Amnesty:
Post-genocide traumatized society often has to make
a dichotomous choice between two perilous options,
should the perpetrators be prosecuted or should they be
amnestied in the interests of national reconciliation?
For purely politically motivated crimes, granting of
unconditional amnesty could be an option. In some
instances, the outgoing government unilaterally award
themselves self-amnesty. In other instances impunity,
is the outcome of negotiations between old and new
leaders.
Amnesty endangers the inculcation of codes of conduct
based on rule of law. It is discriminatory application
of criminal law, privileging certain defendants, which
bread cynicism toward the rule of law. Moreover, States
have the duty to prosecute violations of international
law like genocide. Such crimes cannot be unilaterally
forgiven; even a victim society cannot forgive crimes
against humanity.
Truth Commission:
Amnesty, but not amnesia, is the substance of the
fourth strategy. The first goal of such a commission is
to investigate the fates, under the occupying regime, of
individuals and of the nation as a whole. A truth
telling operation, including full disclosure of human
rights abuses, ensure that "the facts" are not forgotten
but remain alive in the memory.
The perpetrators come out openly, reveal all the facts
and face the victims publicly and see the results of
their actions. Recent examples are the Chilean National
Commission on Truth and Reconciliation (1990), the
United Nations sponsored Truth Commission in El Salvador
and ongoing Truth Commission in South Africa. However,
for some, general knowledge of the truth is not enough.
An official recognition of the injustices that have
been suffered is necessary.
Reparation:
For the families of victims and survivors,
compensation serves as immediate public recognition of
their pain and trauma. The most concrete form of
reparation is monetary compensation. Financial
constraints may not permit large-scale payments, but it
is still important to provide financial compensation to
the victim family either individually or the whole
community. Examples are abound, Germany's reparation to
Jews and Israel, Japan's to Korea.
Permanent
Reminders:
Establishment
of permanent reminders of the past, such as monuments,
museums, public holidays, and ceremonies together with
support group, provide a channel of non-violent
_expression of pain, frustration and anger.
Public Airing Of Grievances:
The public airing of grievances in a non-criminal
context could possibly promote an atmosphere in which
some kind of national reconciliation would be feasible.
Publicly acknowledging the torment and suffering of
victims and survivors can help in the recovery of their
social and political well being as it helps them
psychologically and contributes to defusing potential
cycles of revenge and victimization.
Documentation:
It is very important to establish a permanent
historical record that would inform and educate future
generations to prevent similar atrocities. Future
generations must be taught about the dangers of
repeating the past.
Thus, documentation of genocide and identification of
the violators in some kind of public record at the
national or at the international should be done. Oral
histories of survivors and other witnesses can be
collected. Testimonies of perpetrators and their
superiors can be recorded. Findings of the Commissions,
trial transcripts, or the perpetrators own
documentations should be published.
Voices Of The Victims:
Another avenue of redress could be forums with
opportunities for survivors in communicating their
stories. First hand testimonies of survivors could be
incorporated into programs in military and police
courses, medical and law schools. Similarly, they
could be invited to lecture in primary and secondary
schools, in history and social studies classes, and in
university in various relevant courses. In press and
broadcasting, victims perspectives are particularly
pertinent.
Bangladesh: Botched Strategies
Bangladesh had to deal with the aftermath of
genocide soon after the perpetrator's defeat. It became
an inescapable task for the new democracy. The
incidents of private revenges began to be noticed, and
the state quite rightly made choices to prosecute the
perpetrators and the collaborators.
It was expected that by applying the law firmly and
fairly, the state will avoid vigilantism. But the new
government, it transpires, did not have a well thought
out strategy to deal with the post-genocide society. In
Bangladesh, the genocide was carried out by the
Pakistani government and its army, alongside the war of
occupation. In Pakistan, the leadership and the elites,
mostly migrated from India, were essentially racist,
held "superior race" view vis-�-vis Bangladeshis. This
was epitomized by General Ayub Khan, when, as early as
1954, he jotted down his thoughts that Bangalees "have
all the inhibitions of down-trodden races and have not
yet found it possible to adjust psychologically to the
requirements of the new-born freedom." (Mohammad Ayub
Khan, Friends No Masters: A Political Biography, 1967,
page 187).
Pakistani leadership mixed racial chauvinism with
religion, and the resultant cocktail was the basis of
genocide. The politics just triggered off the genocide
mechanism. Pakistanis were led to believe both by their
political and religious leaders, about the "imported"
nature of Islam in their part of Pakistan and as such
"purer" than "converted" Bangladesh Muslims from lower
caste Hindus.
In 1970, when the people of Bangladesh overwhelmingly
voted for virtual autonomy to run their own affair and
not to remain a market for overpriced Pakistani products
and source of capital for Pakistan's development,
Pakistani military and political elites jointly drew-up
two plans, firstly, to unleash unimaginable terror,
killings and destructions, to cow the people and then to
"cleanse East Pakistan once and for all of the threat of
secession" and planned to "kill off two million people
and ruling the province as a colony for 30 years." The
combination of racial hate, religion and
politico-economic interests converged and formed classic
background for a genocide. Hitler too believed Jews to
be `unclean' plague and threat to German Aryan race. He
was weary of Jews growing hold over economy who conspire
against Germany. Pakistanis too never trusted Bangalees
where it mattered most, in power. Bangalees fought
back, first, in defense and then to get the country free
from Pakistani occupation. The war started and the
Pakistanis began a loosing battle. Pakistanis too, on
one front, faced the valiant Freedom Fighters,
guerrillas and regular sorts and on the other hand,
meticulously carried out genocidal plan. The result:
total destruction of infrastructure and economy of
Bangladesh, ten million people driven out of the
country, twenty million people internally displaced,
fifteen million houses set ablaze, three hundred
thousand women raped and three million killed. The new
government, within six weeks of victory, introduced
laws, the Bangladesh Collaborators (Special Tribunals)
Order, 1972 (P.O.No.8 of 1972), to deal with the
collaborators who had "participated with or aided or
abetted the occupation army in maintaining, sustaining,
strengthening, supporting or furthering the illegal
occupation of Bangladesh by such army." The
Collaborators Order did not contain punishment for
planning or organizing genocide, which took over a year
and half to produce.
In July,1973, the parliament passed the International
Crimes Act (Tribunals) Act,1973 (Act No. XIX of 1973) to
provide for detention, prosecution and punishment for
genocide, crimes against humanity, war crimes and other
crimes under international law. The Act was to set-up a
Tribunal with power "to try and punish any person
irrespective of his nationality who, being a member of
any armed, defense and auxiliary forces commits or has
committed, in the territory of Bangladesh, crimes
against humanity, crimes against peace, genocide and war
crimes, whether before or after the commencement of this
Act." The law, at last, provided forums to prosecute
the principal perpetrators and planners of genocide, the
army and the members of paramilitary organizations like,
the Razakars, Al-Badars, Al-Shams etc.
Thus, the government chose to put the collaborators,
mainly the local people, who participated or aided the
occupation army in maintaining illegal occupation, on
trial first, instead of the principal planners and
perpetrators of genocide. A number of them were picked
up and faced the Special Tribunals. However, in
November, 1973 the government decided to release, under
an amnesty order, all those held and convicted under the
Collaborators Order for national reconciliation. The
amnesty was massively misconstrued and widely abused.
In the end, all the collaborators of genocide were
freed.
As the later events showed, not a single individual was
finally prosecuted and tried for genocide in Bangladesh.
The new elites this botched strategy of criminal
prosecution for genocide failed. It did not do any
justice to the victims who died, did not satisfy people
like Ms. Farida Banu, immediate families of the victims.
Finally, it failed to generate any reconciliation
between the perpetrators and the victims because the
government acted alone in deciding the strategy and then
granting amnesty.
The victim families and the nation at large was not
consulted in any manner. The high principles of rule of
law was sacrificed. Questions began cropping up, if one
was not punished for crime like genocide of three
million, then what crime merited punishment?
Secondly, Bangladesh also tried "disqualification"
strategy again not in any cohesive manner.
Disqualification was not to be a part of criminal
prosecution as there were not much prosecution to start
with. Even disqualification was not practiced
independently of criminal prosecution.
As such, the collaborators did not forfeit any civil or
political rights despite their collaboration. No one
was disqualified from exercising civil and political
rights in a new country whose birth they opposed in
participating in genocide.
The government, instead, prohibited politics based on
religion. Article 12 of the newly adopted Constitution
declared: "The principle of secularism shall be realized
by elimination of (a) communalism in all its forms; (b)
the granting by the State of political status in favor
of any religion; (c) the abuse of religion for political
purposes; (d) any discrimination against, or persecution
of, persons practicing a particular religion." However,
Article 12 of the Constitution of Bangladesh containing
fundamental state principles of secularism was removed
by General Ziaur Rahman through Martial Law Proclamation
Order No. I of 1977.
Thus, however commendable, this strategy to deal with
genocide failed too. Government's compensation scheme
for the victim families has not worked either nor other
attempts of reconciliation, rather the fault-line has
expanded to divide the society right in the middle.
Ways Ahead:
Finally, Bangladesh must now devise appropriate
strategy to deal with the past from various
alternatives. The worst solution would be to try to
ignore the problem; the cost of cover-up are simply too
big as the last twenty-six years have demonstrated. But
the leaders should never forget that the lack of
political pressure to put these issues on the agenda
does not mean that they are not boiling underground,
waiting to erupt. They will come back to haunt. There
are some who believe economic development will be the
panacea. They are wrong. Developed countries like
Germany, France, Germany are still struggling to come to
term with the past despite building affluent societies.
Social harmony, peace and human rights are necessary
ingredients for human and economic development and
without justice, there cannot be harmony, piece and
human rights.
Reconciliation is seen as a crucial prerequisite for the
consolidation of a young democracy. To some analysts,
reconciliation can only be produced if the successor
elite refrain from prosecuting the previous regime.
Others, however, argue that impunity precludes the
coming of reconciliation. In Bangladesh, lack of
prosecution has failed to bring reconciliation or the
strengthening of democracy.
In post-genocide Bangladesh, the religious fanaticism,
extremism and fundamentalism have made solid inroad into
the society. Successive governments have, for political
convenience, compromised and on occasions cajoled
Islamic fanatics. The Collaborators, even after
amnesty, continued activities to throttle down the
spirits of liberation, which has given rise to demands
for new laws to curb the activities of Islamic
fundamentalist and communal elements. These Islamic
parties propagate same brand of Islam which resulted in
genocide in 1971, the communal, sexist, hate and
violence.
Hence, for justice and reconciliation, some prosecutions
must go ahead. No new laws, however, are required. The
Collaborators Order, though has since been repealed, the
International Crimes Act,1973 still remains a valid law.
The Act is a complete law in itself. It provides
setting-up a Tribunal to try four specific offenses,
namely, crimes against humanity and peace, genocide and
war crime; with provisions for prosecution,
investigation, procedure of trial and appeal. Under
Section 21, a person convicted and sentenced shall can
appeal to the Appellate Division of the Supreme Court.
Under the Act, those who were members of the auxiliary
forces in 1971, either structured or shadowy, should be
investigated and then brought to justice. People like
Mueen Uddin should be tried under International Crimes
(Tribunals) Act,1973 for genocide and not under the
conventional penal law. These people are not the usual
criminals, but, planners and executioners of genocide
and should, therefore, be punished for committing
genocide. The investigators have reportedly said, they
would try to deal with the killings of all the
intellectuals as all of them were killed under the same
blueprint by the same group. The blueprint was that of
genocide and as such, the investigators should press
charges under the International War Crimes Act.
Successive governments have also failed to obtain any
reparation from Pakistan for genocide and destruction
caused in 1971. No Pakistani leader has yet offered any
apology to the people of Bangladesh. Even the Queen of
The Netherlands has recently apologized to the people of
Indonesia for the atrocities committed during the
colonial period. So also the Japanese king and the
President of Germany. Instead, the average Pakistanis
are still being fed with concocted history. Few
Pakistanis have any idea how their best army, composed
of martial races, lost to ragtag irregular Freedom
Fighters and to inferior Indian forces. The modern
technology has offered us the opportunity to put our
side of the story directly to Pakistani people via
Internet, and create opinion based on true facts.
Pakistani government is, under international law,
obliged to try the war criminals and perpetrators of
genocide, besides payments of compensation.
In 1971, the genocide, which was carried out while the
war was on, also has international ramifications. The
government of the United States of America was at the
time helping the genocidal regime of Yahya Khan. It is,
therefore, necessary to find out more of the official
role of the United States government to determine how
much US government was aware of genocidal plans and
what, if any, was done to stop it. In this regard, a
campaign for a US Congress hearing, in line with the
Cambodian hearing, should be launched and the members of
the Bangladesh community in United States could take
lead in this matter.
As already observed, in Bangladesh, the liberation war
and genocide have often been equated, though both
occurred pari passu, liberation war and genocide were
separate events. The fallen heroes of the liberation
war are rightly honored when the nation ceremonially
pays its respect on Independence and Victory days, but,
three million victims of genocide are not remembered in
the same fashion on a given day.
A day, on the other hand, is observed as "Buddhijibi
Hotta Dibosh" in December to mark the killings of the
intellectuals, which could easily be expanded to include
all the victims of genocide and the day could be
observed instead as "Gonohotta Dibosh," as a remembrance
day of all the genocide victims. In fact, killings of
the intellectuals was the final chapter of Pakistani
genocidal plan to deprive the nation of its finest
brains and thus, it became a total genocide.
When a regime ends violently because of war against an
occupying army or a civil war or genocide, anomia is
inescapable. But the duty of the successor government is
to strike a balance and draw up the strategy that
delivers justice.
