Identified specifics!
Now that the romantics of the Hasina’s government have come down to the specific, ‘CHIHNITO’ or the already identified ones to be put to the trial for ‘war crimes’ of 1971, common people would have some pertinent questions to ask them.
Six issues to ponder about
First, what in specific was the war of 1971? Second, was that the war anything beyond December war for 13 days? Third, which parties had been lawfully involved? Fourth, which of the parties could claim lawful in engagements? Fifth, who had lawful authority to try any listed war criminal? Sixth, what lawful authority the Bangladesh government has for the trial?
Bangladesh did not exist in 1971
In 1971 Bangladesh fought no formal war with any country, simply because, Bangladesh existed nowhere in legal documents, albeit, in air. The air filled with the Deb Dulal of the then Calcutta (now Kolkata) Akash Bani and that of the London based BBC (Radio) Bengali Service. The political movements followed by failures of the rogue political leaders led to the self-inflicting crack down on the civilians by the national army (Pakistan) had been projected by those self styled anti-Pakistan media as the independence war of East Pakistan/ Bangladesh.
In propaganda
The propagandists continued to do the airy onslaught despite the fact that the sole elected leader of East Pakistan did not go in any way, neither written nor verbal, for UDI or Unilateral Declaration of Independence of East Pakistan/Bangladesh. Possibly the leader Sheikh Muijib could do so, as also many people voiced such slogan in March of 1971, but I maintain the hunch that he refrained from making the UDI for the people did in no way had given him or his party any nod whatsoever for the act of secession.
Mujib refused to be a secessionist
Mujib did personally time and again refused to be a secessionist as volumes of evidences are available. There had been other good reasons. One is that he had been a fighter in his early youth for establishment of Pakistan as a single country and viable state in 1940s, the then East Bengal overwhelmingly voted for the founding of Pakistan, more than any other provinces or regions afterwards comprising Pakistan. Even at the height of the real war between Pakistan and India in December 1971, there are authentic records that he described India as the aggressor against Pakistan’s sovereignty (Impact International, 28th September 1987, page 19, London). In 1974 30th October, as well, in his meeting with the US Secretary of Sate Henry Kissinger in Dhaka he mentioned India with shyness and described 1971 episode as the civil war period in East Pakistan Weekly Holiday, Dhaka, March 6, 09). That he distanced from Tajuddin, the ‘exile government’ P.M. in independent Bangladesh, and later on dismissed him from the Ministry and also to imprisonment had been other evidences, if some more evidences are at all required, that proved beyond doubt that he had been an out and out a Pakistani and not Bangladeshi as in the way that came about through Indian armed interference. One must not forget the fact that he had been dealing with de facto position of Bangladesh dictated by Delhi after 1971.
Mujib’s empathy for Bhutto
One may further ponder over yet another fact. Mujib had deep love and empathy for Zulfiquer Ali Bhutto, the President of dismembered Pakistan that he had admitted to Kissinger in the interview mentioned above. Why? Was that a simple humanitarian gesture to Bhutto alone? That was not so. He was not prepared to accept liquidation of Pakistan as Indian had the evil design from the very inset in 1947. Mujib knew well as many of average IQ knew that liquidation of Pakistan in one way or the other would also mean liquidation of Bangladesh that India doctrine meant in essence. Both need mutually dignified existence of both.
Common spiritual bondage
Whatever misgivings Pakistan and Bangladesh had in 1971, sensible people in both countries realize that the two peoples had an enduring common spiritual bondage that in no way to end in any time in posterity.
Rogues on both sides
The realities of the two peoples as briefly mentioned above Mujib had to look for way out in the war crimes trial. It was not that crimes had been perpetrated by one side or the federal Pakistani army alone but also from the other rogues on the opposite side. Political follies of both sides took on each other for their own perceived ends. If one group would take on the other group for trial it may be pure witch hunting of the winner take all. There are records elsewhere that had been denied and kept under turf since the early 1972 period that crimes in 1971 had as well been perpetrated by the other group. The matters had been taken on as one or the other could get hold of the perceived enemies. The facts recorded by one Harvard group (Sisson and Rose, 1990) and the other by another New York group (Small and Singer, 1982) had in their findings drawn conclusions that human rights violations had been more against the pro-Pakistani elements than against the pro Bangladeshi lot in 1971. Sharmila Bose (India) as well had the similar findings in 2005.
India alone could make the trial
It is true that the victors can take on trial of the criminals of the vanquished. That Bangladesh could do provided Bangladesh had been the real victor. The real victor in the 1971 war was not Bangladesh as such but India and India alone. The victory for independent Bangladesh was a by product of Indian armed victory in December 1971 as the surrender document clearly has had the mark signed by Niazi of Pakistan army and Arora of Indian army on the 16th December in Dhaka. The subsequent treaty of March 1972 with India euphemistically called ‘friendship’ but in reality agreeing to be subservient to India, the matter of enclave Berubary transfer in 1973, water sharing understanding at the Farakka barrage point in May 1974, etc. made Bangladesh more and more subservient to India step by step one after another. The victor India thus could put to trial the 195 listed as war criminals, and not Bangladesh. That is why all prisoners of war had been in India under their care and not under Bangladesh custody. Thus India decided the terms of conditions for freeing all and allowed them to return to Pakistan including the 195 listed for trial. No doubt that many freedom fighters fought heroically for independent Bangladesh and lost lives as well for freedom from Pakistan control but all formal credits had been taken away by India as the 16th December 1971 surrender document had in fact the signed evidence between Niazi and Arora.
Mujib forgave all
Mujib disowned the secessionist bid of some his followers that again proved by the fact that he made some humbug of the release of the listed criminals in his verbatim, ‘we know how to ‘forgive’ and so he said he did. The humbug only proved that he was more sympathetic to them. The same sort of sympathy Mujib had for the Bangladeshi natives who stood to preserve Pakistan. Some of the factual proofs were that he forgave all those in late 1973 who sided with Pakistan in 1971. Although he enacted a tribunal in mid 1973 to try specific criminals, none was prosecuted for in his lifetime for two more years he lived afterwards. Why, if he had any seriousness about the matter.
Other priorities
In reality, he had other priorities for the country facing many difficulties. Poor people had been dying of hunger. Indian hegemony had been biting each day in and out. Muslim world including Saudi Arabia had been distancing away from Bangladesh. So also was China (for details of Mujib- Kissinger, 30 October, 1974 dialogue, see weekly Holiday, Dhaka 6 March 2009). Though Pakistan’s recognition to Bangladesh in early 1974 eased some problems, the country had been having despair all around and no hope ahead. The leader was so desperate to assert sovereignty against hegemony of India that he made a special envoy of a veteran Muslim Leaguer Khawja Khairuddin who had been imprisoned for siding with Pakistan in 1971 for ideological reason, released him with honor and with a special passport issued, send him to Pakistan to work to seek formal recognition both of Saudi Arabia and People’s China as Pakistan had the best of relations with these countries. Since 1973 the war crime issue was nothing of a matter, because, Mujib himself settled the issue for wider understanding and concentrating energies for nation building. How could then the same issue be picked up now after about 36 years? Anything for doing justice or was for something else fishy and witch hunting of the political opponents?
India’s aggression and her major gain realized
As I have argued above that the Bangladesh was not recognized by any party or Bangladesh had no formal recognition by any country not even by India the major role player in 1971 war. In fact, Bangladesh was formally accepted and recognized by India as the independent country on the 6th December 1971 only after India made aggression on Pakistan for 3 days in starting the formal war on the 3rd December. In other words, as Bangladesh did in no way formally existed before 6th December 1971, she cannot put to trial any of the war criminals as of before 6th December 1971. India, of course, could do as the victor but did not do anything for she had the major gain already accrued in dismembering her ‘enemy number one’ united Pakistan for she left no competitor in the subcontinent.
Vietnam’s example out of place
There is another point; if one would bring the example of Vietnam for trial of war criminal in the case of Bangladesh, one has to bear in mind that Vietnam stayed as the same country after the war, but in the case of Pakistan it dismembered into two giving emergence of Bangladesh. Thus those who fought for preservation of one and united Pakistan did not do any crime for they patriotically did the sacred job of preserving sovereignty of one’s own country. Any breach of criminal act was a different matter; any such breach though morally must include rogues of both sides.
Legal jurisprudence’s no to retrospective effect
The 1973 tribunal formed in mid July cannot try any one for crimes committed in 1971, as it would mean making the law effective retrospectively that in it is unacceptable in legal jurisprudence.
1973 Tribunal violated the Constitution and UN Charter of Human Rights
The 1973 tribunal, in addition, as the more prudent jurists maintain that it violates not only the Constitution of Bangladesh but also Universal Declaration of Human Rights.
Wasting energy in futility
It would as such be a futile exercise to bring to court any one outside those 195 as the so-called war criminals of 1971. But such attempt for any ‘trial’ would only tantamount to harassment of political witch hunting and nothing else that would only be counter productive and certain to back fire against peace and democracy in the country.
Author: M.T. Hussain