How to ensure justice for the atrocities committed in the past
The Awami League regime, which sought global recognition as a model of governance, has ironically left behind a legacy marred by unprecedented brutality against its own citizens. The scale of state-sponsored violence and repression under Sheikh Hasina's rule rivals some of the worst autocracies in the world, like Egypt's Hosni Mubarak. Bangladesh is also a unique example where a military dictator, Gen HM Ershad, succeeded in resettling in a democratic political framework but a popular leader, who jointly led a movement for restoration of democracy, degraded herself by turning into a worse dictator.
The recent student-led uprising, evolving into a broader civilian insurrection, has been dubbed by some as the "Gen Z Revolution." However, lacking a coherent revolutionary agenda or a well-defined path for enacting fundamental change, this movement remains more of a chaotic and prolonged transition towards democracy than a fully fledged revolution. Consequently, the pursuit of justice for the regime's atrocities faces significant challenges.
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In a true revolution, justice would be swift and uncompromising. Special tribunals or summary trials might have been established to address the crimes committed under Hasina's rule, and eventually under the rule of her predecessors. However, in a society aspiring to democracy and the rule of law, the process of ensuring justice becomes more complex. Fairness—both real and perceived—is paramount, and justice must not only be done but also be seen to be done.
At present, there is widespread anger as well as a clamour for accountability, particularly for those responsible for the deaths of at least 440 people, maiming of thousands, and false imprisonment of countless others in politically motivated cases. The challenge for the transitional government is immense, as it inherits a nation teetering on the brink of chaos and division. The economy has been devastated with billions of dollars syphoned abroad by the deposed regime's cronies, while the civil service is riddled with corruption. Inflation is soaring, and unemployment is rampant. The security apparatus, weakened by the violent fallout of crackdowns on dissent, is struggling to maintain law and order.
Rebuilding the capacity of the police and other law enforcement forces to pre-regime levels could take years. In this context, conducting thorough investigations, preserving crucial evidence, and prosecuting powerful figures with significant followings will require not only strong political will, but substantial support from both domestic and international communities as well.
Before moving forward with prosecuting the crimes of the previous regime, several critical issues must be addressed. The public's demand for justice focuses on two key periods: the atrocities committed between July 15 and the establishment of the interim government, and the systemic repression that began when the former government dismantled democratic safeguards by abolishing the 13th Amendment of the constitution and suppressing the opposition. The violations during the former prime minister's rule—enforced disappearances, extrajudicial killings, arbitrary arrests, and custodial torture—constitute crimes against humanity under the Rome Statute.
Ensuring justice for these crimes will require bringing all responsible parties to account, from top political leaders to the enforcers on the ground. However, there is growing impatience among the victims' families, students, and human rights activists who are eager to see prosecutions initiated. While some individuals have already initiated legal action, these hasty private efforts risk failure due to insufficient evidence or lack of corroborating witnesses, which will politically benefit the perpetrators. The interim government must take decisive actions to develop a realistic prosecution strategy that can secure convictions, particularly against the former prime minister and her top associates. Eventually, the same must be done to address crimes committed by the past regimes as well.
There are also discussions about potential prosecutions at the International Criminal Court (ICC) under the Rome Statute. Several human rights groups are preparing submissions to the ICC's chief prosecutor. As Bangladesh is a signatory to the Rome Statute, the ICC has jurisdiction over crimes committed within the country. However, international prosecutions are notoriously complex and require significant global support, which may not be forthcoming until all national legal avenues have been exhausted.
Law adviser Prof Asif Nazrul has suggested that Sheikh Hasina could be tried at the International Crimes Tribunal (ICT) for her role in the killings between July 1 and August 5 during the student-led movement. However, concerns remain about the ICT's reputation, given its past weaknesses during trials for crimes committed during the Liberation War of Bangladesh. Additionally, remnants of the old regime and their sympathisers may attempt to undermine any legal proceedings. The biggest impediment, however, would be the revival of Awami League, unless it decides to break away from the tradition of a hereditary leadership of the party.
The failure to bring Ershad to justice serves as a stark reminder of the challenges facing the country's judicial system. Prosecuting Sheikh Hasina, arguably the worst dictator in the nation's history, will be even more challenging and must be pursued before public memory fades. A promising development is the offer of assistance from UN human rights chief Volker Türk, who has proposed helping investigate the alleged crimes. The UN's expertise in evidence collection, preserving them, and prosecution support could prove invaluable, whether the trials occur at the ICC or in domestic courts.
Another possibility is the application of universal jurisdiction, which allows courts in any country to prosecute those responsible for atrocities, regardless of where the crimes were committed. This was the legal principle that led to the detention of Chilean dictator Augusto Pinochet in the UK and subsequent return to his homeland, where he was convicted and eventually died in prison. While it is unlikely, even India could theoretically prosecute Hasina under universal jurisdiction, according to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984.
Kamal Ahmed is an independent journalist. His X handle is @ahmedka1.
Views expressed in this article are the author's own.
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