THE
LESSONS WE NEVER LEARN
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.
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