Trials and Error

[First published in the BDNews24.com on 5 June 2010]

Over many years, public discourse on war crimes and its trial since 1971 seems to have generated many errors, and facts are often ignored or forgotten. This piece attempts to provide a set of facts.

Pakistani and local war criminals

Some 90 to 95 thousand Pakistani prisoners of war (POWs) were imprisoned after they surrendered to the Joint Command of Bangladesh-India. Bangladesh on 29 March 1972 declared its intention to try some 1,100 Pakistani war criminals— including A.A.K. Niazi and Rao Forman Ali Khan1.

Meanwhile, some 32,000 local collaborators were arrested on various charges by September 1972. The government initially prepared for 20,000 prosecutions, while lack of evidence hindered the trial of the rest2.

The two-track trial process

Since both the Pakistani and local war criminals were liable for the crime, whether they committed the crime independently or together, each could be tried individually in the absence of the other. Hence, from the onset, two independent trial processes were established for the Pakistani and local war criminals under separate laws.


The Bangladesh Collaborators (Special Tribunals) Order, 1972 was announced to try the local war criminals. The constitution of Bangladesh was also amended to include Article 47 (3) in order to fasten the trial of members “of any armed or defence or auxiliary forces” for genocide, crimes against humanity or war crimes3. The International Crimes (Tribunals) Act, 1973 was announced on 20 July 1973 mainly to try the Pakistani war criminals4.

The government also announced a two-tier trial process where national and international jurists would be appointed to try some high profile war criminals, while an all-Bangladeshi jurist panel would try the rest5.

Initiation of Trials

The “Instrument of Surrender” that was signed on 16 December 19716; and the United Nations Resolution 307 that was passed on 21 December 19717 explicitly required both India and Pakistan to follow the Geneva Conventions of 1949. At that time Bangladesh was not a member of United Nations and was not recognized by most nations. Hence, India was held sole responsible for the safety of the Pakistani POWs, and all POWs were transferred to India within weeks.

To begin the trial of Pakistanis, Bangladesh requested India to hand over the accused POWs. India agreed to hand over only those Pakistani POWs against whom Bangladesh could provide evidences of atrocities (prima facie cases)8. Initially, Bangladesh provided evidence against 150 POWs, and India agreed to hand them over to Bangladesh9. Eventually, specific charges were brought against a total of 195 Pakistani war criminals.

Meanwhile, the trial of local war criminals and collaborators became difficult in the severely resource-constrained fledgling nation. Specifically, the police force was severely depleted during the war, and many experienced officers were stranded in Pakistan10. Only 2,848 trials were completed by October 31, 1973, with 752 local war criminals were convicted and sentenced.

Repatriation of Pakistani war criminals

To prevent Bangladesh from trying the Pakistani war criminals, Pakistan government took a series of atrocious actions including: preventing the 350-400,000 entrapped Bangladeshis from leaving Pakistan and making them hostages; keeping the Bangali officers in “concentration camps”;11 imprisoning thousands of Bangalis without charges12; and announcing thousand rupee reward for capturing every Bangali who were trying to escape from Pakistan. On August 10, 1972, Bhutto threatened to use China’s veto power to stop Bangladesh from getting the UN membership if Pakistani soldiers are tried13, and China actually vetoed against Bangladesh’s membership at the UN on August 25, 197214. On May 27, 1973, Bhutto announced that, if Bangladesh tried the Pakistani soldiers, Pakistan would also try the Bangalis in similar tribunal for passing information during the war15. Pakistan arrested 203 senior Bengali officers for this threatened trial16.

India and Pakistan (with Bangladesh’s consent) signed the Delhi Agreement on 28 August 1973 to repatriate most Pakistani POWs in exchange for the release of entrapped Bangalis and repatriation of stranded Pakistanis in Bangladesh. However, the 195 Pakistani war criminals were not sent back home under this treaty. And contrary to widespread and false belief, the India-Pakistan Simla Agreement of July 2, 1972 had nothing to do with Pakistani PoWs being released. 17

In 1973, Pakistan proposed that they would establish a judicial tribunal to try these 195 Pakistani officers if Bangladesh abstained from trying those POWs in Dhaka18. They also kept more than 200 Bangalis as hostages until the 195 Pakistanis were released.

When the Islamic Summit was organised in Pakistan on 22-24 February 1974, all the Muslim nations wanted Bangladesh to join the Summit. Bangabandhu declared his intention to join the summit, but only with full Pakistani recognition, while Bhutto refused to recognise without the release of 195 Pakistanis. On the night of 21 February, foreign ministers of 37 Muslim countries sat on a meeting to solve the problem and a 7 member delegation visited Dhaka to persuade Bangabandhu19,20. It appears that Bangabandhu had to abstain from trying those 195 Pakistanis in Dhaka in a bid to rescue Bangladeshi citizens from Pakistan, to get UN membership (which was vetoed by China on Pakistan’s behalf), and most importantly to ease the path to foreign aid and the Middle East labour market.

On 22 February 1974 Pakistan recognised Bangladesh21 and on 24 March it released the remaining 206 Bangladeshi hostages from their captivity22. Finally, a tripartite agreement was signed between Bangladesh-India-Pakistan on 10 April 1974 under which those 195 Pakistani war criminals were repatriated (for details on this event, see http://bit.ly/dAntiT).

Release of local war criminals

Meanwhile, the trial of local criminals became ever more difficult. While Collaborator Act paved the way for the trial, old criminal laws were still in use, which required conventional evidences such as post-mortem reports that were impossible to find in genocide cases and resulted in a large number of acquittals23. There were also conflicting reports of some collaborators taking refuge in the opposition political parties24, while some opportunists used the trial to settle their old scores25. At the same time, the tepid pace of trial given lack of resources meant thousands of potentially innocent people were languishing in prison. To address these issues, Bangabandhu announced a conditional general amnesty on 30 November 1973 for everyone except for those who were involved in rape, arson, looting or murder.

Under the traditional laws and with limited capacity, it was not possible at that time to prosecute senior collaborators for their active role in leading or supporting the carnage. Instead, they were prosecuted for taking the side of or collaborating with the Pakistani army. Hence, many such collaborators got away through general amnesty with a condition that if their role in murder, rape or arson is found, they will be brought to justice again.

After the 15 August tragedy, the military regime repealed the Collaborator Act altogether and the rest of the collaborators were eventually released.

Keeping the options open

A closer look at the trials and release of the Pakistani and local war criminals suggest that while political leadership of the day had to shelve the trial process at that time, they never intended to terminate the possibilities of any future trial.

The Tripartite Agreement clearly mentioned Bangladesh’s position on the 195 Pakistanis in the Article 13: “there was universal consensus that persons charged with such crimes as 195 Pakistani prisons of war should be held to account and subjected to the due process of law”. However, as the Article 15 says: “having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past” Government of Bangladesh had decided not to proceed with the trials as an act of clemency.

Here the scope of clemency is clearly limited to Bangladesh’s decision on not to try them here. But it keeps the option open for a Pakistani or international trial of those Pakistani war criminals.

Bangladesh continued to provide evidence against those war criminals to pursue the Pakistanis to try their war criminals26. When Pakistan’s Hamoodur Rahman Commission submitted its supplementary report, it recommended that—

The Government of Pakistan should set up a high-powered Court or Commission of Inquiry to investigate these allegations, and to hold trials of those who indulged in these atrocities, brought a bad name to the Pakistan Army and alienated the sympathies of the local population by their acts of wanton cruelty and immorality against our own people27.

Similarly, local war criminals who were released for the lack of evidence or resources to continue with the trial in the 1970s ultimately cannot escape justice, as the general amnesty is not applicable to people against whom charges of arson, murder, rape or abduction were brought.

While the Collaborator Act was repealed by the military regime of which Ziaur Rahman was the key member, his government (or any subsequent one) did not repeal Article 47(3) and the International Crimes (Tribunals) Act, 1973 which provides the basis of any trial of those who committed war crimes and crimes against humanity in 1971.

In case of genocide or crime against humanity, proving the causal links between the specific crime and the group’s leader is very difficult. Considering the complex nature of such association, international standard for the trial of crime against humanity thus offer better opportunity to use dated evidence, circumstantial evidences, motive etc as legally acceptable arguments. While post-independence political leadership could not use such evidence for lack of capacity, they however designed the constitution and tribunal acts along the lines of Nuremberg Tribunal’s Article 6(c) that outlines how the war criminals can be tried for ‘crime against humanity’.

References

[1] “Bangladesh Will Try 1,100 Pakistanis”, The New York Times, Mar 30, 1972; pg. 3

[2] “Bangladesh purge of ‘collaborators”, The Guardian, Sep 22, 1972; p. 1

[3] The Constitution of the People’s Republic Of Bangladesh. See http://www.pmo.gov.bd/constitution

[4] The International Crimes (Tribunals) Act, 1973 (ACT NO. XIX OF 1973). 20th July , 1973. Government of Bangladesh.

[5] Bangladesh Will Try 1,100 Pakistanis, The New York Times, Mar 30, 1972; pg. 3

[6] “The Surrender Document”, New York Times, Dec 17, 1971, pg. 1

[7] Resolution 307 (1971) of 21 December 1971. United Nations.

[8] “India opens way for Dacca trials”, The New York Times; Mar 18, 1972; pg. 1

[9] India to Deliver 150 P.O.W.’s To Bangladesh to Face Trial, The New York Times, Jun 15, 1972, pg. 11

[10] “Bangladesh purge of ‘collaborators”, The Guardian, Sep 22, 1972; p. 1

[11] Pakistan Denies Charge, The New York Times, Apr 17, 1972; pg. 6

[12] Official Reports 2,000 Bengalis Held in Pakistani Jails, The New York Times, Dec 13, 1972, pg. 3

[13] Transcript of President Bhutto’s Press Conference on Aug 10, 1972. cited in Burke, S.M. (1971). “The Postwar Diplomacy of the Indo-Pakistani War of 1971”. Asian Survey, Vol. 13, No. 11 (Nov., 1973), pp. 1039

[14] A Veto By Peking, The New York Times, Aug 27, 1972; pg. E3

[15] Bhutto Threatens to Try Bengalis Held in Pakistan, The New York Times, May 29, 1973; pg. 3

[16] India-Pakistan Talks Reach Impasse, The New York Times, Aug 26, 1973; pg. 3

[17] For Text of the Simla Agreement, see http://mea.gov.in/jk/sim-ag.htm

[18] Pakistan Affairs, May 1, 1973. cited in Burke (1971) ibid pp. 1040

[19] “Islamic Mission to Dacca Seeks Bengali-Pakistani Reconciliation”, The New York Times, 22 Feb 1974, p-2

[20] “Last attempt to coax Mujib”, The Guardian, 22 Feb 1974; p. 5

[21] “Pakistan admits that Bangladesh exists as nation”, The New York Times, 23 Feb 1974, p-65

[22] “Repatriation Is Completed For Bangladesh Nationals”, The New York Times, Mar 03, 1974; pg. 8

[23] “Bangladesh purge of ‘collaborators”, The Guardian, Sep 22, 1972; p. 1

[24] “Bangladesh purge of ‘collaborators”, The Guardian, Sep 22, 1972; p. 1

[25] “Trials of error”, The Guardian, Dec 1, 1972; pg. 12

[26] Supplementary report of the Hamoodur Rahman Commission admits receiving such evidence from Bangladesh.

[27] Supplementary report of the Hamoodur Rahman Commission, Part 2, Chapter 2

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One Response to Trials and Error

  1. Pingback: [icsf] BLOG |  Trials and Errors | Syeed Ahamed

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