In 1971 West Pakistan conducted military operations to prevent an alleged “uprising” in East Pakistan. These military campaigns were targeted towards various religious, political, and minority groups. Hundreds of thousands of refugees fled into India which inevitably provoked a conflict between India and Pakistan. By the end of 1971 the geopolitical landscape of South Asia changed as Bangladesh was born. After the 1971 war, Sheik Mujibar Rahman had ordered an Inquiry to determine the number of people who perished as a result of the conflict. To do so Bangladesh passed the 1973 International Crimes Tribunal Act (ICTA), which was enacted to prosecute those responsible for grave international crimes. Unfortunately, after Sheik Rahman’s assassination the Inquiry process stopped. Despite changes in government and the Awami League’s return to power in Bangladesh, it was not until 2010 the Bangladesh Court began to prosecute cases. The Bangladesh Court asserts that it utilizes principles of international law. Since 2010 the international community has criticized the Bangladesh Court for gross miscarriages of justice in each of the cases. This article briefly explores whether an alternative mechanism could provide judicial redress for survivors, victims, and witnesses of the 1971 Liberation War.
The current iteration of the Bangladesh Tribunal is plagued with many problems. There are many indications that the Tribunal is engaged in one sided and arbitrary prosecutions. “Collaborators,” Bangladeshi’s that aided the Pakistan military during the war, as opposed to “freedom fighters” are not charged with crimes although many are alleged to have committed war crimes. Further, the defendants on the dock to date have been high ranking officials of the Jamaat-e-Islami political party (who opposed independence in 1971) and one member of the Bangladesh National Party. They are considered fierce opponents of Sheik Hasina – the current leader of Bangladesh. All defendants have been sentenced to death and many have appealed. The sentences of each of these defendants have caused violent protests.
In addition, the judicial process itself is corrupt and flawed. Despite the assurances by Bangladesh that the trials would be “more neutral and more transparent” the complete opposite is true. The Presiding Judge of the Tribunal, Mohammed Nuq, resigned in 2012 after publicly leaked emails and phone conversations indicated government influence in the proceedings. The Economist reported that there are witness disappearances, government pressure to speed up the trial process, and inadequate procedural and substantive due process rights which are not afforded to the defendants. What’s worse is the application of the death penalty given the obviously flawed judicial process. These problems have tainted Bangladesh’s international reputation, despite positive endorsements of the Tribunal.
Given the state of affairs surrounding the Bangladesh Tribunal, some alternatives should be considered.
I have written about the contribution and important of People’s Tribunal’s before. Given the current landscape in Bangladesh a People’s Tribunal could be effective in a situation like this. A People’s Tribunal could evidence independently and giving itself a mandate to address specific issues that the Bangladesh Court cannot address because of its legal and political limitations. Some of these questions include the impact the policy by Bangladesh, Pakistan, and India had in granting amnesty and pardons to perpetrators of violence during the war. Another question could specifically pinpoint why women and children were targets of violence in 1971. Bina D’Costa noted that the amount of sexual violence during the Bangladesh genocide remains an “all-time high only comparable to the DRC.” Finally, another question that could be examined is the penultimate failure of various members of the international community to respond, particularly the United Nations, given the creation of the Genocide Convention years before. What is most important in all these situations is that a People’s Tribunal, if created and executed in a meaningful manner, can raise the level of discourse on an issue and create a more comprehensive narrative, than the one espoused by those with power.
An Inquiry could be another effective measure for promoting reconciliation and healing from the genocide. A Bangladesh Inquiry could be housed or led by the National Human Rights Commission which currently has the power to conduct investigations and inquiries. Around the world there are different examples of inquiries which approach different topics. Currently, Canada is working on its terms of reference for an inquiry relating to the deaths of aboriginal women and girls. Another example is the ongoing inquiry into child sex abuse in Australia which began in 2013. The Royal Commission investigates how various institutions have responded to allegations of child sex abuse. The Commission has conducted public hearings, published reports, and taken testimony from survivors and victims. In the case of the Bangladesh genocide, an inquiry could bring the perfect balance to a rocky situation. If fully supported it would have the backing and funding of the state, it would allow a diverse range of participants to share their narratives, and could foster other preventative solutions to violence that may have its roots in the genocide.
If the government of Bangladesh is sincere about its efforts to move forward and create healing over the bloody birth of its country, more efforts will be needed to create a complete and holistic picture of the crimes that took place. Moreover, the international community has an obligation not to sit on the sidelines because this genocide may not be politically popular as others before and after it. The International Criminal Court should also motivate itself to step in and actively promote judicial fairness and encourage that international legal norms and standards be upheld in each and every case given the fact that Bangladesh is a party to the Rome Statute.
 Bina D’Costa, “Justice or Retribution: the story of Bangladesh’s International Crimes Tribunal” June 2, 2013, http://www.abc.net.au/radionational/programs/rearvision/tribunal-or-retibution/4690858#transcript
 John Cammegh, “The Bangladesh War Crimes Tribunal: Reconciliation or Revenge?” Crimes of War, http://www.crimesofwar.org/commentary/the-bangladesh-war-crimes-tribunal-reconciliation-or-revenge-2/
 M. Rafiqul Islam, “Bangladesh’s war crimes tribunal meets high standards” The Daily Caller, December 31, 2013, http://dailycaller.com/2013/12/31/bangladeshs-war-crimes-tribunals-meet-high-standards/