Untold Facts

War Crimes to Crimes against Humanity

The Bangladesh Technocrat Law Minister Shafiq Ahmad in an interview with the BBC Bengali Radio Service aired at 7:30 P.M. on the 20 March in Dhaka seemed to have shifted from his and Hasina Government’s previous stance to put the ‘1971 War Criminals’ to now ‘Crime against Humanity’. He made the hint of shift on his return from a fairly long visit to the USA, UN etc. understandably having had exchange of opinions with some important persons about the issue there. He mentioned about the stance of Pakistan in the matter, as well, and made abundantly clear that the 195 listed Pakistani prisoners of war would not be indicted. In fact, they had been in the list as ‘war criminals’, no matter how genuine the list had been.

The reason for the shift of stance is best known to the Minister and the Government. But others would have quite a few points and explanations.

The first hurdle is the precise definitions of war and war crime. Even at the international discourse there is no complete unanimity but the definitions vary. In case of Bangladesh and Pakistan, agreed definitions are very hard to come by for legitimacy of the question of declaration of independence that is still being debated after four decades past in acrimony that looks no end to it. In terms of De Jure legitimacy, Bangladesh did not exist until February 1974, the day Pakistan officially recognized Bangladesh as an independent country and not before. The 1971 period of East Pakistan/ Bangladesh, according to international authentic documents happened to be in ‘civil war’ and not independence war. This was also even the top leader Mujib acceded to after three years in 1974 30th October, in his dialogue with the US Secretary of State Dr Henry Kissinger (See, US State Department declassified document made public on the 14th February 2009 and published in the weekly Holiday, Dhaka, 6th March 2009). The above points establish the fact that the 1971 war on Bangladesh was in fact a war engagement between Pakistan and India for 13 days in December.

Let us suppose for a moment, if the war would not have been won by any side just like many wars, Bangladesh would not stand anywhere in reality. If Pakistan had won, the fate of Bangladesh would have been just like the Tamils who fought for 26 years, gave lives of 70,000 or so and yet nowhere now in reality. Possibly, that is why Mujib did not take the risk to declare UDI in March 1971.The declaration of independence by Major Zia as he himself stated was ‘Revolt’ or mutiny of about 250 or so of the Eighth East Bengal Regiment, a small section of the federal Pakistan army. The declaration of independence of Bangladesh on the 10th/17th April 1971 in Calcutta by about 76 or so out of 219 or minority of MNAs and M.Ps of East Pakistan had no legitimacy for the simple reason that they had not been elected by the people for the job but for framing a federal constitution for the united Pakistan. The LFO (Legal Framework Order) had the mandate otherwise and not for Bangladesh.

Thus the confusion or lack of legitimacy for Bangladesh in 1971 made the question of war crime of 1971 more difficult to establish. In early 1972 the Mujib government made a presidential order number 8 for trial of those who sided with the Pakistan Army. The order was known as Collaborators Act of 1972. Thousands were arrested under the act and herded in prisons. Some were put on trial as well. But such trials turned into fiascos in most cases. In view of the problems arising, the government declared amnesty to most of the so-called collaborators, particularly when the new Constitution was framed and made in force in December 1972 as the fundamental rights provided in the constitution contradicted with the trial under the Act. To make up in a sort of hush up the government in July 1973 promulgated another act for trial of those involved in human rights violations in 1971. That turned the collaborators act dysfunctional. Despite some loud talks here in Dhaka even the July 1973 act remained non-operational. By 1974 things further eased after formal relations with Pakistan normalized and all prisoners of war detained in India freed and went back to their own place in Pakistan, Mujib boastfully announced that the sinners of 1971 had been forgiven, in his verbatim, ‘forgive and forget’! That was how the episode ended not to surface until recently. The post 1975 change government of President Zia rescinded the Collaborators Act quite realistically and as morally right putting death knell to the notorious and anti-human rights black law.

Since January 2009 the Bangladesh government of Hasina made it public that they would bring the 1971 ‘War Criminals’ to justice. They took preparations for over 14 months and now looks set to start the actual job. But there seems to have been a shift in the subject matter from ‘War Crime’ to ‘Crime against humanity’. They are both crimes but not the same. If they wish to go for war crime they would be stuck not only from inside but also at the international level. Possibly they can not face and meet the international standard for war crime that the 1971 position had actually been. On the contrary, crime against humanity is not that difficult to set and could be bone by normal Cr. P.C.
Even so, looking for witch hunting and for scapegoats can not be ruled out. Many of their mid level leaders have already made open in public that they must hang to death such and such big shots of particular political party, now mainly Islamic one. Some minister has gone so far as to say in open public meeting that they have had managed to hang the ‘killers’ of their common ‘father’, and hence they could also hang to death all the other as war criminals. Not unlikely, because they have a judiciary not only manned by their one time cadres but also by the spineless judges now almost totally filled the important positions. Rare exception only proves the general rule.

The witch hunting could be something dangerous exercises. Apart from the few old faces still alive of the 1971 days then active in politics if there would be any credible witnesses available even for the crime against humanity. Fake and made up witnesses would not be in short supply though for obvious moral erosion in society.

There is another issue. Crime against humanity in 1971 had not been perpetrated only by particular ‘Islamic’ men but also by the opposite side and individuals. Some such examples of human rights violations, for example, made against the non Bengali East Pakistanis beginning from the 1st March 1971 to beyond 1971 viciously perpetrated in various places of the country. How about the clear crime against humanity who killed retired from politics former Governor Abdul Monaem Khan at his own home in Dhaka in October 1971? How about those inhumanly tortured and killed soon after the 16th December all over the country including one great parliamentarian Moulvi Farid Ahmad of Cox Bazar and many others like him taken to be pro Pakistan? How about Kader Siddique’s killing in the Dhaka stadium on the 18th December 1971 that Italian journalist Oriana Fallaci had kept on record both in letters and photographs?

The Hasina government as has already been proved that her every internal political action against the real nationalist and Islamic forces are solely driven by vengeance and vengeance alone and nothing else just as they did in the case of the otherwise applauded heroes of the 15th August 1975 change. The pliant and spineless judges did give the verdict Hasina wanted to have in avenging blood for blood as she had promised on entering politics in early 1980s (See, daily Naya Diganta, 24 March 2009). The civilized world and all international humanitarian organizations stood against the hanging to death of the five army men and decorated freedom fighters that made her still more egoist. She is in all likely going to do in the case the same sort of ‘Political Trial’ as the 27th November 2009 international weekly The Economist viewed the 19th November 2009 verdict in the 15th August revolution case. It matters little in essence if they termed the victims in this case in vengeance driven ego of political trial for witch hunting not for ‘War crimes’ but somewhat euphemistically labeled for international consumption as ‘Crime against humanity’.

Should any quarter wish to make out cases for ‘War crimes’ or even ‘Crime against humanity’ now in 2010 A.D., 39 years after 1971, I am afraid, the number one person who must top the list would be Mujib for all grievously wrong commissions, one for instance, in inciting simple folks senselessly to turn as cannon fodders, on the one hand, and vacillating omissions not making UDI (Universal Declaration of Independence) in due time in March 1971, on the other.

Author: HB Khair