THE TRIAL OF 1971 GENOCIDE: Reflection on ICTBD

Yesterday marked the 3rd National Genocide Day of Bangladesh. On 25 March 1971 late night, the Pakistan Occupation Army started Operation Searchlight against the freedom loving innocent Bengalee people and committed Genocide by killing these innocent people due to their Bengalee nationality. Father of the Nation Bangabandhu Sheikh Mujibur Rahman in the early morning of 26 March 1971 declared the independence of Bangladesh just before he was arrested by the Pakistan Occupation Army. Soon thereafter auxiliary forces of Pakistan Occupation Army, e.g., Razakars, Al-Badr, Al-Shams, Al-Mujaheed etc. were formed and the members of these auxiliary forces individually and jointly either directly committed or participated in committing widespread and systematic crimes including crimes against humanity, genocide and war crimes in the territory of Bangladesh.

After our victory on 16 December 1971 in the War of Independence, two pieces of legislation were enacted, i.e., Bangladesh Collaborators (Special Tribunals) Order, 1972 and International Crimes (Tribunals) Act, 1973 to try and punish the perpetrators of 1971. The first one was repealed after the brutal assasination of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman and his family members on 15 August 1975 since the subsequent military backed governments did not want to try the local perpetrators. Rather, the local perpetrators who were leaders and activists of pro-Pakistan political parties were rehabilitated by the subsequent governments till 1990. In the government of 1991 and 2001, Jamat-e-Islami leaders were the part of the government and in 1996, the then government did not have enough mandate to start the trial of the perpetrators of 1971. However, the second legislation, i.e. International Crimes (Tribunals) Act, 1973 survived. In 2009, when the then Awami League government had the absolute mandate from the people of Bangladesh, they decided to establish a tribunal (International Crimes Tribunals, Bangladesh [ICTBD]) under the 1973 Act to try and punish both the Principal and the local perpetrators who committed international crimes, e.g., crimes against humanity, genocide etc. in 1971 during the period of war of independence, i.e., 26 March to 16 December 1971. For almost 39 years neither the principal, i.e., members of Pakistan Occupation Army and Policy makers of Pakistan nor their local perpetrators of the aforesaid auxiliary forces were tried.(Chief Prosecutor v A. T. M. Azhar)

Accordingly, nine years back on 25 March 2010, the International Crimes Tribunal No. 1 was established and later in 2012, International Crimes Tribunals No. 2 was established (it is not in operation now). The establishment of this tribunal was itself a success against the culture of impunity that was deep rooted not only in Bangladesh but also in the whole region. No one ever believed these perpetrators could be brought to justice and the victims of 1971 almost believed that they would never have justice for the wrongs committed against them. The commitment of Bangladesh to try the perpetrators of 1971 for committing international criminal law shows that it is working towards fulfilling its obligations towards the nation and the international community at large. Bangladesh is respected internationally being one of the few nations for respecting the rights of victims of a conflict to get justice. By trying and punishing powerful pro-Pakistan politicians, like – Salahuddin Quader Chowdhury, Ali Ahsan Muhammad Mujahid, Motiur Rahman Nizami etc. for committing, aiding and abetting, conspiring or compliciting crimes against humanity, genocide etc., Bangladesh has proved that 'you will be tried irrespective of your position and status'. This has definitely increased the faith of people that they will also have justice even if it is late. This is to be noted that till date, 35 judgments have been passed by the tribunals jointly, 23 judgments are pending before the Appellate Division of the Supreme Court of Bangladesh and 6 judgments are executed so far. Now, 37 cases are pending before the Tribunal No. 1 in different stages and nearly 500 cases are under investigation. 

Even though the concept of genocide by rape was found in the Akayesu Judgment of ICTR but the first sentence was pronounced in Reazuddin Fakir Judgment of Tribunal No. 1. The testimonies provided by the witnesses, the documents submitted by the Prosecution and the Defence, and the judgments will remain as an important collection of memories of horrific events that took place in 1971. If anyone goes through the pages of these judgments they will learn about the genocide that took place upon the religious minorities of Bangladesh which has reduced the numbers of Hindu populace in Bangladesh. Future generation will find answers on the modus operandi of the perpetrators in exterminating the intellectuals of Bangladesh. The precedents of judgments and orders of different international criminal tribunals and writings of international scholars were followed and mentioned in the Judgments of the Tribunals and future researchers will be benefitted immensely. 

In conclusion, the endeavor of the International Crimes Tribunals is a running testament of our glorious past of sacrifice of the innocent victims and valiant freedom fighters. When its journey will end – is a question to be answered by the Executive; however, till today a lot of trials and investigations are pending before it. To become a successful method for transition of this nation from the pains and sufferings of 1971 and to ensure justice for the victims and their families, the Tribunal should continue till the last perpetrator alive. 

The writer is a Prosecutor of ICTBD and Executive Director of ELCOP.