The Lessons We Never Learn

by Dr. Hameeda Hossain

It has now become a ritual, come December and March, to bemoan why no justice was exacted from the Pakistan military and its collaborators, for the crimes of genocide and mass rape, committed in 1971. This is not for lack of evidence. In fact over the years, Bangalis have painstakingly compiled evidence and much of this has become the store of international knowledge on typology of military subjugation and brutality. First, the news filtered through the lens of foreign journalists, later after independence the government set up its own enquiry team constituted by Advocates Serajul Haq and Aminul Haq. They painstakingly compiled evidence and submitted their report on more than 1500 cases to the Home Ministry by July 1972. Those held guilty of war crimes fell into two categories: the first included war criminals - 195 members of Pakistan military and bureaucracy - who were taken into Indian custody in New Delhi. The second included the local collaborators of the Pakistan military in "committing grave criminal offence and atrocities against the people of Bangladesh and to have cooperated with the then government in oppressing and obstructing the independence movement." In his report to Amnesty International, Mr David Marshall, Q.C. and former Chief Minister of Singapore, said in 1972, that 12,000 collaborators awaiting trial in 19 jails were to be tried under the Collaborators Order before 73 Tribunals. It was to ensure the legality of their trials that two renowned criminal lawyers had been asked to prepare a draft for the Bangladesh Collaborators' (Special Tribunals) Order 1972. This law which was removed from the statute books of Bangladesh in 1976 became a standard setter for the ICC. Upto July 1972, 13 persons had been charged in Dhaka alone.

The country did not have the satisfaction of witnessing exemplary trials of even the leading collaborators, and most of them were let off. This has had consequences for peace and security of ordinary citizens. As the collaborators merged into their communities, many quietly acquired influence or gained political power and became a threat to the survivors of their violence. The war criminals were released from Indian custody to Pakistan in 1974, following the Simla Agreement, on a commitment that they would be tried in Pakistan. This denouement may have been influenced by realpolitik-and there is now ample evidence of Kissinger and Nixon's support for army action and a US tilt towards Pakistan, as revealed in Christopher Hitchen's book on The Trial of Henry Kissinger, and in Archer Blood's recent publication, The Cruel Birth of Bangladesh.

But it had serious consequences for the militarization of both Bangladesh and Pakistan. The decision not to hold trials of the war criminals led to considerable misgivings, which are recorded by Fakhruddin Ahmad, former Advisor to the Caretaker Government (1991), and at the time a member of the Foreign Service: " I believe that the most serious blunder on our part was not to start the trial of the Pakistani war criminals. The Nuremberg trial started immediately after the fall of Hitler. We could have at least tried Yahya and Tikka Khan in absentia for the murder of innocent people. I had suggested early action on the trial. I hinted that by holding a public trial of important Pakistan Generals we would be in a better bargaining position including repatriation (of Bangladeshis in Pakistan)." (See Critical Times, UPL, 1994, p 78)

Bangladesh's inability to hold the perpetrators responsible has, over the years, subscribed to a simmering of frustration in citizens, for whom a denial of justice has also represented a recurrence of history. The demand for justice is not to be seen as an act of revenge alone. More to the point, it is a means to deny impunity to war criminals, to prevent recurrence of military interventions. The failure to hold the military accountable for the genocide and mass rapes in Bangladesh has emboldened them to interfere repeatedly in civilian life in both countries.

Where disputes between two contending communities demand a peaceful resolution, intervention by military action or non-constitutional means to subject a community has led to long standing disruption of peace and security. This is one of the fears of such intemperate action expressed by conscious citizens.

Although the crimes of rape, killing and kidnapping of women in Bangladesh by military regimes were not taken up under international jurisdiction, the facts have not been denied. Contemporary foreign press reports and women's testimonies of rape and widowhood form part of our oral history. In spite of Pakistan's official silence, the Hamoodur Rahman Commission Report recorded that allegations against the military included " raping of a large number of East Pakistani women by the officers and men of the Pakistan army as a deliberate act of revenge, retaliation and torture. The mass of evidence coming before the Commission from witnesses, both civil and military, show that "there is little doubt that General Niazi, unfortunately came to acquire a bad reputation in sex matters, and this reputation has been consistent during his postings in …East Pakistan. The evidence of a Pakistani Colonel shows the source of the impunity of Pakistani soldiers for committing atrocities. The troops used to say, when the commander was himself a rapist, how could they be stopped."

In defiance of official silence, conscious citizens in Pakistan have protested army action against civilians in Bangladesh, Baluchistan and Sindh, as well as the usurpation of power by the military. In August 1971, 40 brave individuals, led by Faiz Ahmed Faiz issued a statement protesting the arrest of Shaikh Mujibur Rahman and army action in Bangladesh. More recently, with women in the vanguard, more and more protests have demanded an official and meaningful apology from the Government of Pakistan. The President is supposed to have regretted "excesses committed by his countrymen and asked that Bangladesh forget its history." But is excess an appropriate word for genocide! And genuine remorse would imply that the military itself would learn from its experience and not take over roles for which it has no aptitude. Each time it does so, it leaves the society in a worse shambles.

Why should Bangladesh remain silent on the war crimes on its land, particularly of rape, committed on women as a form of national punishment? And thus allow a replication of an historical experience? There are lessons to be learnt from the success of the international women's movement in attaining the recognition of rape and other gender based violence as war crimes, in demanding compensation and reparations for women victims of war, in seeking to engage with justice and peace negotiations in post conflict situations. This can be traced through developments in international humanitarian law since the second world war.

The Geneva Conventions (Art 27 and 147) specified that women be protected against rape in particular, and included it as an act of torture and inhumane treatment, because it constituted an attack on the integrity and identity of a woman. At the second set of Nuremberg trials for the trial of Nazis and the Tokyo Tribunal for War Crimes in the Far East after World War II, persecution by rape as a crime against humanity was admitted. More recently, the Security Council appointed separate Tribunals for trial of war criminals in former Yugoslavia in 1993 and in Rwanda in 1995. In 1995, these concerns were integrated into the Beijing Platform of Action and in the Rome Statutes for the International Criminal Court.

Where perpetrators of war crimes evaded official liability, people's tribunals have offered a moral condemnation. Bertrand Russell formed a People's Tribunal to indict the American forces for pre-meditated violence against the civilian population in Viet Nam. The Japanese have resisted accounting for crimes of rape and sexual slavery at "comfort stations" established by the Japanese army, but after a Public Hearing, in December 2000, on testimonies by comfort women from Korea, Philippines, China and Indonesia, a four person international jury at the Hague in 2001, indicted Emperor Hirohito and the Military Command for " the crimes committed against these survivors remain one of the great unremedied injustices of the Second World War."

War crimes on a civil population are not particular to any place and time. They have become common weapons in military and para-military action across borders, within communities and within the political divide. Whether such crimes occurring in conflicts in Palestine, Kashmir, Bangladesh, Chittagong Hill Tracts, Sri Lanka or elsewhere will ever be tried in international courts depend to some extent upon geo-political dynamics. But as the brutality of military intervention tears our societies apart, in the name of law and order, we should remember that peace and human security do not emerge from the barrel of a gun.

December, 2003

Dr. Hameeda Hossain is the Research Director of Ain O Salish Kendra (ASK), Dhaka based legal services and human rights resource center in Bangladesh.
Courtesy: Drishtipat: Women of 1971 Campaign to assist seven war affected women