Telling Places with Georgian IDPs

Photograph of Georgian IDP camp, copyright Hannah Mintek, 2010.

Telling Places with Georgian IDPs

Although it created new opportunities for many Soviet peoples, the end of Soviet rule also left many wounds unhealed, while creating new traumas. In the Caucasus, the post-Soviet decades were marked by frequent bloody conflict, from Chechnya to Nagorno-Karabakh to Abkhazia. Wars raged among Georgians, Russians, Ossetians, Chechens, Ingush, and Abkhazians over borders that had been contested since the advent of Soviet rule, if not earlier.

In the Republic of Georgia, one upshot of over two decades of violence is the nearly 300,000 internally displaced people (IDPs) who now reside a country with a total population of 4.6 million. How can these IDPs be integrated into Georgian society, and move on with their lives, given all the damage that has been inflicted by war and the fact that many of them still lack permanent homes? How, in short, do people build new lives after catastrophe?

A new project I am organizing with geographer Elizabeth Dunn of Indiana University, “Telling Places: Forced Migration and Spatial Memory in the Caucasus,” seeks a partial resolution to the emotional upheavals of the 2008 Georgian-Russian war. In partnership with Georgian NGOs and Georgian scholars, we will use digital mapping technologies (GIS) to create a resource that will be eventually managed by IDPs. This resource will provide a transferable technology usable by IDP communities around the world seeking to reconstruct their lives.

We are calling this resource a ‘convening point’ rather than a website, given the degree of interactivity we envision. The Telling Places convening point will interactively map the villages from which IDPs were ethnically cleansed, and keep the pasts these villages represent for IDPs alive in digital form. As a spatially-organized multi-media repository, Telling Places will gather interviews, video, and writings by IDPs with the family documents and maps that IDPs have preserved during their displacement. This resource will help IDPs rebuild their attachments to their home villages and preserve their memories for future generations.

 

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Write On! Call for Papers: Colonial Law Conference, Helsinki (deadline March 1)

eci20ryhmakuva-7-349pxThe Erik Castrén Institute of International Law and Human Rights at the University of Helsinki has announced a call for papers for the Conference “Law Between Global and Colonial: Techniques of Empire,” to be held from 3-5 October 2016.

The conference proposes to discuss the legal languages and techniques through which colonial powers ruled non-European territories and populations throughout the modern age. The aim of the conference is to examine in detail the juridical practices and discourses of colonial powers when they exercised their supremacy over colonial subjects and disciplined them. Although the focus of the conference is historical, its theme resonates in the present. With the great numbers of people moving about in Europe, Asia and Africa as migrants, guest workers, refugees and displaced persons, territorial states have often used methods and techniques that resemble those with which colonial populations once were treated. With research showing a sharp rise in world inequality, the conference poses the question whether legislative techniques and institutions inherited from the imperial past, once again see the light of day in the present.

The conference will close the four and a half-year period of the Finnish Academy research project on “International Law, Religion and Empire” at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. Members: Martti Koskenniemi, Paolo Amorosa, Mónica García-Salmones, Manuel Jimenez and Walter Rech.

Abstracts are due by March 1. For more information, see the full Call for Papers at http://www.helsinki.fi/eci/Events/Call_for_Papers_Colonial_Law_2016.pdf.

 

Investigating Crimes against Peacekeepers in the Situation in Georgia

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has officially requested authorisation from the court to initiate an investigation into alleged war crimes and crimes against humanity committed during the armed conflict in Georgia between the breakaway region of South Ossetia and Georgia (also involving the Russian Federation) in August 2008. A key strand of the investigation concerns alleged attacks against peacekeepers, in this case, the Joint Peacekeeping Forces Group or JPKF, created in 1992 to monitor the Sochi agreement between Georgia and Russia, and comprised of peacekeepers from Russia, Georgia and North Ossetia.

In its request, the OTP argues that there is reasonable basis to believe that both South Ossetian (potentially with Russian armed forces exercising overall control) and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission. Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more, while, in a separate incident, ten Russian peacekeepers were reportedly killed and thirty wounded as a result of an alleged attack by Georgian forces against their base, which was also, reportedly, destroyed. While the OTP faces many challenges in this case (for discussions see here, here and here), from the perspective of sufficiency of evidence for substantive crimes, these allegations may be the most difficult to prove.

The ICC Statute gives the Court jurisdiction over the crime of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian or peacekeeping missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law (Articles 8(2)(b)(iii) and 8(2)(e)(iii)). Proving that an attack against peacekeepers has occurred is a two stage test. Firstly, it must be shown that the force in question was ‘a peacekeeping mission established in accordance with the UN Charter’, a concept that is open to different interpretations. The ICC has already considered this matter in some detail in its Abu Garda Decision on the Confirmation of Charges, where the Pre-Trial Chamber relied upon three basic principles when determining whether or not a peacekeeping mission was constituted, namely: (i) whether the consent of the parties to the mission has been obtained; (ii) that the mission is impartial; and (iii) that the mission did not use force other than in self-defence. If these principles are fulfilled, the mission constitutes a peacekeeping mission, and its personnel are entitled to civilian status and consequent protection under international humanitarian law (IHL).

The OTP acknowledges that there are difficulties surrounding whether the JPKF in fact fulfilled these criteria. This is particularly so regarding whether the mission was impartial (paras. 151-155). For example, the submission refers to sources cited by the Government of Georgia arguing that Russian peacekeeping sources were not impartial, but were supporting the South Ossetian de facto authorities (para. 152), there are also suggestions that infrastructure connected with Russian peacekeeping forces was being used to make an effective contribution to the military action of a party to the conflict (para. 172). Thus, the OTP’s conclusion that the ‘JPKF fulfilled the criteria of a peacekeeping mission in accordance with the UN Charter and so was entitled to protected civilian status’ (para. 160) is open to question. Continue reading

Write On! Call for Papers: Socio-Legal Review (deadline 1 November)

The Socio-Legal Review (SLR), a student-edited, peer-reviewed interdisciplinary journal published by the Law and Society Committee of the National Law School of India University, Bangalore, has issued a Call for Submissions for its twelfth volume, to be released in 2016. Submissions are due by November 1, 2015.

SLR aims to be a forum that involves, promotes and engages students and scholars to express and share their ideas and opinions on themes and methodologies relating to the interface of law and society. The Journal thus features guest articles by eminent scholars as well as student essays, providing an interface for the two communities to interact. From 2012, SLR has become a biannual publication from an annual publication.

The Journal subscribes to an expansive view on the interpretation of “law and society” thereby keeping its criteria for contributions simply that of high academic merit, as long as there is a perceivable link. This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/institutions of governance/administration, power structures in social commentary, and so on. Through this effort, the Journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.

Submission Guidelines

  1. All contributions submitted to the Journal should be original and should not be simultaneously considered for publication elsewhere.
  2. The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it fits within the general mandate of the Journal, as outlined above.
    1. Contributions should be mailed only in a soft copy to slr@nls.ac.in and sociolegalreview.nls@gmail.com, the subject of the mail being ‘Submission for 2015 Volume’. Biographical information is to be provided in a removable title page.
    2. The Journal is accepting contributions for Articles and Short Articles. With reference to Articles, contributions should not ordinarily exceed 8000 words. With reference to Short Articles, contributions should not ordinarily exceed 5000 words. The Editorial Board reserves the right to reject without review manuscripts that exceed the word limit substantially.
    3. The Journal also accepts Book Reviews and Notes from the Field. The latter includes shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in, legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. Contributions should not exceed 3000 words.
    4. The last date for submission for the first issue is November 1st, 2015. Submissions may, nevertheless, be made after these dates. They will be considered for publication in the issue to follow.
    5. All submissions are to be made via e-mail as .doc or .docx documents.
    6. SLR follows the Harvard Blue Book – A Uniform System of Citation (20th edn.) style of referencing. Contributors are requested to comply with the same.
  3. For any clarifications, please contact us at slr@nls.ac.in or sociolegalreview.nls@gmail.com.

You go, ‘Grrl! Anna Dolidze appointed Georgia’s Deputy Minister of Defence

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IntLawGrrl Anna Dolidze has been appointed Georgia’s Deputy Minister of Defence. Defence Minister Tinatin Khidasheli said at Anna’s appointment on May 15, 2015, “The main criterion for my choice is high professionalism. Her main direction will be human rights: everything connected with the wounded soldiers, our soldiers who serve abroad, the families of the fallen heroes.”

As part of her new role, Anna will be taking a leave of absence from her role as Professor of Law at the University of Western Ontario. Prior to joining Western Law, Anna served at a number of international and non-governmental organizations, including Human Rights Watch, the Russian Justice Initiative, and Save the Children. From 2004 to 2006, Anna was the President of the Georgian Young Lawyers’ Association, the largest legal advocacy organization in the Republic of Georgia. She also served at the National Constitutional Commission, Commission for the Human Rights in Prisons and the Expert Commission for Georgia’s European Integration.

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Anna has taught and lectured at Duke University, Helsinki España-Human Dimension in Madrid, Sorbonne University in Paris, and Elmira Maximum Security Correctional Facility in New York State. She has co-authored a series of policy reports including a UN-sponsored report on the privatization of the internally displaced persons’ collective settlements (2005) and a policy proposal for the establishment of a truth commission in Georgia published by the Carnegie Endowment for International Peace (2012). In 2012-2013 Anna was a Joachim Herz Fellow at the Transatlantic Academy of the German Marshall Fund, having contributed to the Academy’s annual report The Democratic Disconnect: Citizenship and Accountability in the Transatlantic CommunityHeartfelt congratulations, Anna!

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(All photos courtesy Anna Dolidze.)

Child Marriage in India: Loopholes in the Law

By sheer numbers, child marriage in India dwarfs the rest of the world; India has the highest number of child brides of any country.  Although the rate of child marriage is decreasing for children under the age of 15, the rate of marriage for girls aged 15-18 has increased from 26.7% in 1998-99 to 29.2% in 2005-06.  Child marriage is clearly not ending despite laws in place, and is perpetuated in India due to a range of factors, most prominently dowry, poverty and lack of educational opportunity for girls, concerns about the safety and honor of girls, and prevalent gender and social norms.

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which requires the “free and full consent” of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the “right freely to choose a spouse” and to “enter into marriage only with their free and full consent.” CEDAW also states that the “betrothal and the marriage of a child shall have no legal effect.” India is also signatory to the Convention on the Rights of the Child (CRC), and child marriage violates a range of CRC provisions, including the right of children not to be separated from their parents against their will and the right of children to freely express their views on matters that affect them. Further, under the CRC, the state is obligated to take measures to abolish traditional practices prejudicial to the health of children, including marriage.

The social forces at play perpetuating child marriage are difficult to combat, deep-seated and intertwined as they are. But perhaps what is lesser known is that laws in India prohibiting child marriage are flawed, contributing to the problem.

First, the Prohibition of Child Marriage Act, 2006 repealed the Child Marriage Restraint Act, 1929 and attempted to address the previous Act’s shortcomings. This Act defined child marriage as the marriage of boys under age 21 and girls under 18. The Act also made positive changes, including extending the maximum length of punishment to two years of imprisonment and/or a fine of up to one lakh rupees. If the marriage is nullified, the Act requires the return of money, valuables, gifts, and ornaments given by each party to the other, and also allows an order of maintenance for the former wife.  The Act also provides for government-appointed Child Marriage Prohibition Officers to work to prevent child marriages; while good in theory, it is unclear whether they are actually in operation and to what extent.

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Increased prospects for Transitional Justice after the political transition in Sri Lanka?

Since the end of the Sri Lankan armed conflict in which the Liberation Tigers of Tamil Eelam (LTTE) were destroyed by the Sri Lankan armed forces in 2009, Sri Lanka was the archetype of a hard case for Transitional Justice. The Sri Lankan government of President Mahinda Rajapaksa adopted a completely intransigent posture by failing to credibly investigate the past. Instead, it set up flawed mechanisms resembling truth commissions in an attempt to ease international pressure on accountability. Unsurprisingly, these commissions largely exonerated the government of any systematic wrongdoing. In addition, the government brutally suppressed dissent, presided over the persecution of the Tamil and Muslim minorities and attacked local human rights activists who cooperated with UN mechanisms.

In this context, human rights campaigners within the country turned to the international community. In 2010, the UN Secretary General mandated a Panel of Experts (POE) to advise him on accountability in Sri Lanka. The Panel looked into allegations of international law levelled against both sides during the final phases of the armed conflict and found credible allegations of a wide range of violations of human rights and humanitarian law by both sides, some of which amounted to war crimes and crimes against humanity. Amid growing calls for further international action, the UN Human Rights Council took the significant step in Mach 2014 of mandating an OHCHR investigation into these violations. Despite these developments, prospects for international justice for human rights abuses and related crimes that took place during the war remained slim. Indeed, China and Russia’s strong support for the Rajapaksa regime appeared to preclude the prospect of a referral by the UN Security Council to the Prosecutor of the ICC. Even at the UN Human Rights Council which mandated the ongoing investigation, there was only limited support for decisive international action on Sri Lanka.

On January 8, against all odds, the Sri Lankan President Mahinda Rajapaksa was unseated by his former Minister of Health Maithipala Sirisena, who managed to rally a wide array of political parties around the defense of rule of law, transparency and democratic values. However, no consensus on post-war justice was found within this broad ad hoc alliance. While there is enthusiastic support for robust international action on accountability within the minority Tamil community which bore the brunt of the war, representatives of the majority Sinhalese community—about 80 percent of the country’s population—are mostly opposed to international trials. This explains why Sirisena—who needed a substantial if not majority share of the Sinhalese vote to secure victory at the presidential elections—vowed to protect all citizens from international tribunals. Nevertheless, during the campaign, the Sirisena camp indicated that issues of accountability for alleged war crimes will be dealt with domestically and hinted vaguely at the need for truth commissions, apologies and forgiveness.

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Precipitating Politics Around The Revival of Prosecutions in Bangladesh

This is part 3 of a three-part series on the Bangladesh International Crimes Tribunal.  Part 1 (overview) and 2 (deep history) are here and here, respectively.

Fast forward to the present day. Prosecuting local collaborators for crimes committed at Liberation emerged as a central campaign pledge of the Awami League and now-Prime Minister Sheikh Hasina Wajed during the 2008 elections when the Awami League “Grand Alliance” emerged triumphant. The law was not invoked until 2010 when authorities arrested four leading politicians from the rival Islamist political party, Jamaat-e-Islami. Jamaat-e-Islami had been banned from political participation following the 1971 war of independence, and its leaders went into exile in Pakistan. The ban was eventually lifted. The party revived, was mainstreamed, and eventually joined in multiparty alliances with, most prominently, the Bangladesh Nationalist Party (BNP). It is now the principal Islamist political party in Bangladesh and a key opponent to the majority Awami League. The most recent general elections were held on January 5, 2014. Jamaat-e-Islami was barred from participating, and the Bangladesh Nationalist Party (BNP) and other opposition parties chose to boycott the elections. As a result, 154 of 300 seats went uncontested, so Awami League candidates won by default. The rise of the Awami League, and the marginalization of any credible political opposition, has cleared the way for the government to launch targeted prosecutions against key political opponents under the 1973 Act.

Once prosecuting political opponents became policy, Parliament amended the 1973 Act several times to make it operational. The legislation, which mostly incorporates the Nuremberg/Tokyo definitions of the crimes and benefited from the assistance of international law experts, was quite forward leaning for its time in terms of substantive law. By today’s sensibilities, however, the legislation is outdated and does not reflect recent developments in the law occasioned by the work of the ad hoc criminal tribunals.

The real concerns, however, relate to a number of procedural infirmities contained in the statute itself and in amendments to the Constitution that deny procedural protections to individuals detained or prosecuted under the 1973 Act. For example, 1973 amendments to the Constitution protect the Act from legal attack. Notably, Article 47(3) states:

(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.

Article 47A also withdrew certain procedural rights from individuals subject to Article 47(3)—including the right to enjoy the protection of the law, the prohibition of ex post facto prosecutions, the right to a speedy and public trial, and the right to challenge the court’s jurisdiction.

The legislation itself invalidates additional rights, including the right against self-incrimination (the statute provides that defendants shall not be excused from answering any question on the ground that the response will incriminate the suspect). Long pre-trial detentions have led the U.N. Working Group on Arbitrary Detention to declare that several defendants hve been subjected to arbitrary detention in violation of international law, notably the ICCPR. In addition, idiosyncratic Rules of Procedure and Evidence govern the Tribunal, so any protections contained in the normal criminal procedure code, including rights of appeal, are inapplicable. For example, the law imposes an obligation on the Appellate Division of the Supreme Court to dispose of any BICT appeal within 60 days—a tall order given that no interlocutory appeals are allowed. In practice, although the accused ostensibly enjoy the right to counsel of their choice, the Bangladesh government and Bar Association have made it virtually impossible for outside counsel to adequately represent their clients by, among other things, restricting their travel to the country and their presence in interrogations. Several trials—including that of Abdul Kalam Azad, the first case to go to verdict—have proceeded in absentia. A U.S. citizen, Ashrafuzzaman Khan, and a U.K. subject, Chowdhury Mueen-Uddin, have also been sentenced to death in absentia for crimes against humanity. Such trials are not, per se, contrary to international law, but defendants must be given a right to a retrial if and when they are apprehended. No defendant in his right mind would appear voluntarily before a tribunal so stacked against him.

Among other retrograde elements, on February 17, 2013, the International Crimes (Tribunals) (Amendment) Act of 2013 amended the law again to allow for the prosecution of “organizations” for their role in the 1971 War of Liberation. (There is some talk that the law may need to be amended anew to enable the prosecution of “parties” in addition to “organizations” if it is to serve its intended purpose). This baldly political move is aimed directly at Jamaat-e-Islami, notwithstanding that its continuity with its liberation-era predecessor is questionable. After the BICT sentenced Abdul Quadar Mollah, the assistant secretary-general of Jamaat-e-Islami, to life imprisonment for crimes against humanity in February 2013, the Act was further amended to allow the prosecution to appeal a sentence or a verdict of acquittal. The amendments were made retroactive. On the prosecutor’s appeal, the Supreme Court converted Mollah’s sentence from life imprisonment to death, a final sentence that does not admit the right of judicial appeal. Despite calls on December 11, 2013, from U.S. Secretary of State John Kerry and United Nations Secretary General Ban Ki Moon to Sheikh Hasina herself, Mollah became the first BICT defendant to be executed. He was hanged on December 12, 2013 after a last minute stay of execution was lifted, on the eve of the upcoming Victory Day celebrations. Indeed, trials and appeals proceeded at a breakneck pace in 2013, apparently in an effort to achieve results in advance of the January 2014 elections.

The BICT has also been mired in corruption allegations. In December 2012, The Economist broke the story, based upon leaked emails and recorded Skype conversations, that a BICT judge had been seeking outside advice on how to rule from the Brussels-based director of the Bangladesh Centre for Genocide Studies, who was also apparently collaborating with the prosecution. The leaked correspondence suggest that the government was pressuring the judges to issue their judgments more quickly. The judge eventually resigned, but the BICT nonetheless responded with threatened contempt of court charges against The Economist’s journalists. Other journalists and media outlets that have been critical of the BICT have also been hit with contempt charges.

Individually, these infirmities are deeply troubling. Collectively, they fundamentally undermine the fairness of the proceedings, especially given that the death penalty is on the table.

The international community initially supported this effort at historical justice, given the longstanding impunity stemming from the war of independence. Human Rights Watch, for example, called the trials an important and long overdue step to achieve justice for victims. The United Nations Development Programme (UNDP) offered assistance, and the European Union passed resolutions supporting the trials. However, this support soon soured when it was clear that the process had been corrupted and was more political than legal.

The United States’ position toward the BICT has been a guarded one. While acknowledging the need to address the atrocities committed during the war, the United States has also called for proceedings to be free, fair, transparent, and consistent with international and domestic due process standards. The United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp (my former boss), has visited Bangladesh five times (most recently in August 2014) in an effort to bring the proceedings better into line with international standards. Before the trials began, he wrote an extensive analysis of the original legislation, which was later leaked to the press, setting forth his concerns and suggestions for improvements. He was later criticized for offering his views, even though they had been solicited by Bangladesh. Some of these suggestions—including the recognition of res judicata and double jeopardy, the right to a fair and public hearing with counsel of the defendant’s choice, placing the burden of proof on the prosecution, and establishing a system of witness protection—were at least partially implemented. Others—having to do with interlocutory appeals, interrogation rights, disclosure obligations on the prosecution, and enabling the participation of foreign lawyers in court—were disregarded. Now that proceedings are fully underway, the prospects of genuine legal reform are dim. The goal now seems to be to keep the defendants alive.

And What of the Birangonas?

The suffering of Bangladesh’s rape victims continues. Indeed, these women were twice made the victim. The first breach of their rights and dignity occurred when they were subjected to mass rape on a staggering scale. Although we will never have accurate numbers, all accounts suggest that tens of thousands of women were systematically kidnapped, raped, and mutilated.  Many did not survive their ordeal.  Those who did suffered a second kind of assault in the aftermath of the war. Rather than being treated with compassion, given medical and psychological assistance, receiving reparations, or getting access to meaningful justice, many survivors were instead silenced, ostracized by their families, and treated as pariahs in their own communities. The only medical services on offer were makeshift abortion clinics staffed by experts who were flown in to conduct late-term abortions. Many “war babies” who were not aborted were put up for international adoption. For many women, the only tangible recognition they received for what they had suffered were the plaques eventually bestowed on them. Although labeled “Birangonas” (war heroines), this supposed honorific turned out to be little more than a cruel hypocrisy. Many survivors continue to live in poverty and shame.

The propaganda value of violence against women has long been recognized. There is now the risk that these women—who for years have been hidden away, ignored, ostracized or worse—will be injured a third time when their legitimate claims for justice will be used to justify a deeply illegitimate process.  They will be trotted out in support of the trials under the illusion that their stories matter. Once the victims have played their part in justifying a flawed process, they will be relegated back to the shadows once again. As criticism mounts about the BICT, Bangladesh’s Birangonas will come to realize that offering them the opportunity to achieve justice for what befell them was never the goal.

The BICT: Great Expectations Gone Awry

This is part 2 of a 3-part series on the Bangladesh International Crimes Tribunal (BICT).  Part 1 is here.  Part 3, available here, addresses the contemporary proceedings and the expectations of victims.

It was not inevitable that the BICT would backfire.  In fact, its necessity was pressing and its origins honorable. By way of background…

The August 1947 Partition of India produced the Islamic Republic of Pakistan, a nation divided at its birth by more than 2,000 miles of Indian terrain. Governing two far-flung territories—then called West and East Pakistan—with little if anything in common besides a fealty to Islam proved impossible, especially with political and other power initially concentrated in the West. Things came to a head when national elections held in December 1970 resulted in victory for the East Pakistani Awami League, headed by Sheik Mujibur Rahman, deemed the Father of the Nation (and—as is typical of the sub-continent’s dynastic politics—also the father of the current Prime Minister). The government then in place in East Pakistan refused to relinquish power. To suppress the burgeoning Bengali nationalist movement, authorities in West Pakistan launched Operation Searchlight in March 1971 with the secret airlifting of members of the Pakistani Army into East Pakistan, the imposition of a curfew, the blocking of all forms of communication, and the arrest of the Awami League leadership. Working with local collaborators (razakar)—some of whom were affiliated with the anti-independence Jamaat-e-Islami party—Pakistani forces unleashed a campaign of violence that targeted the intelligentsia, civic leaders, students, and Hindu communities. The singling out of Bengali citizens, particularly in the eastern zones, gave rise to charges of genocideone of the first invocations of the term since the promulgation of the Genocide Convention following World War II. An anguished contemporaneous cable from the U.S. embassy entitled “Selective Genocide” admitted that U.S. personnel were rendered “mute and horrified witnesses to a reign of terror by the Pak military” and begged for the ability to confront Pakistan over its actions.

What was supposed to be a quick pacification exercise dragged on for months, with all the attendant harm to the civilian population. Indeed, during the 9-month Operation, the invading army and their collaborators perpetrated a mind-boggling array of atrocities. Notably, Operation Searchlight unleashed one of the largest instances of wartime rape ever recorded: it is estimated that between 200,000-400,000 women and girls were raped as well as subjected to sexual enslavement, mutilation, and forced impregnation. As is typical, there are no firm numbers of those killed either, but estimates range from 300,000 to 2 million. It is known that the Operation generated almost 10 million refugees—sometimes upwards of 50,000 per day—who fled to neighboring India, which opened its borders to provide refuge.

Spurred by this influx of refugees, and the targeting of individuals of the Hindu faith, India eventually intervened on East Pakistan’s behalf in December 1971 under the leadership of Prime Minister Indira Gandhi—a frequently cited example of post-Charter humanitarian intervention, although India relied on a self-defense rationale as well. Fighting alongside East Pakistani “freedom fighters” (mukti bahini), the Indian Army helped to defeat the Pakistani troops after less than two weeks of fighting (one of the shortest international armed conflicts on record). The occupation army surrendered on December 16, 1971, now known in Bangladesh as “Victory Day.” This left upwards of 100,000 prisoners of war—the most since World War II—in Indian custody. India detained 195 who were deemed the most responsible for the atrocities; the rest were repatriated at the end of the war.

With an eye toward prosecuting those who had aided and abetted the Pakistani forces, the Bangladesh Collaborators (Special Tribunals) Order came into force in 1972 by Presidential Decree. The next year, the Parliament promulgated the International Crimes (Tribunals) Act (the 1973 Act) “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.” Sheikh Rahman, the primary political force behind the independence movement, quite presciently contemplated local prosecutions of East Pakistani citizens and an international tribunal to prosecute POWs. By Presidential Order No. 16 in February 1973 (the Bangladesh National Liberation Struggle (Indemnity) Order), however, the liberating forces were given immunity from prosecution. In November 1973, the government declared a general pardon and amnesty that applied to low-level offenders, but not to individuals accused of rape, murder or genocide.

Meanwhile, Pakistan instituted suit against India before the International Court of Justice over the fate of its 195 citizens, arguing that it enjoyed exclusive jurisdiction for crimes committed on the territory of then-Pakistan by virtue of Article 6 of the Genocide Convention. (That provision obliges states parties to exercise territorial jurisdiction over genocide, but does not preclude resort to other bases of jurisdiction). Pakistan also held thousands of Bengalis resident in West Pakistan hostage in retaliation for the threat to prosecute the POWs.

On April 9, 1974, India, Bangladesh, and Pakistan entered into a tripartite agreement for the normalization of relations on the sub-continent. The agreement ensured the recognition of Bangladesh, enabled a massive three-way repatriation of civilians, and embodied a decision to forgo trials in a spirit of clemency, reconciliation, and forgiveness. The ICJ case, which had been postponed several times in order to enable the parties to undertake negotiations, was dropped as part of the comprehensive settlement between the two nations. Eventually, the 195 POWs were returned to Pakistan following its assurances that they would be prosecuted at home.

For its part, Pakistan constituted the Hamoodur Rahman Commission, which was mandated to undertake “a full and complete account of the circumstances surrounding the atrocities and the 1971 war.” Although it dramatically downplayed the prevailing statistics on rape and murder, the final report was critical of the Pakistani military and was not published. Indeed, apparently 11 of the 12 copies were destroyed. The surviving copy was eventually leaked to the press and then fully declassified in 2000. In the end, no one in Pakistan was held accountable for the atrocities in East Pakistan in any meaningful way.

A number of cases went forward in Bangladesh under the 1972 Presidential Order. Many convictions were ultimately pardoned, however. In 1975, Sheikh Rahman was assassinated, which scuttled these efforts. Later that year, the 1972 legislation, but not the 1973 Act, was repealed. It was thus left to Rahman’s daughter—Prime Minister Sheikh Hasina Wajed—to complete this aspect of her father’s legacy.

Part 3 of this series will fast forward to the present time.

The Bangladesh International Crimes Tribunal (BICT): Complementarity Gone Bad

International courts cannot handle all possible international crimes prosecutions; as such, it is incumbent upon national systems to carry much of the burden. Indeed, the International Criminal Court is expressly complementary; it will assert jurisdiction only when there is no domestic court that is willing or able to bring charges. Although the ad hoc criminal tribunals enjoyed primacy over domestic systems due to their Security Council provenance, the relationship is still a partnership, as evidenced by the high degree of information sharing between the tribunals and their domestic counterparts, the provision of technical assistance and training to local actors, and the ICTY’s Rules-of-the-Road project. Rule 11bis was added to the Rules of Procedure and Evidence to enable the ad hoc tribunals to refer low-level cases to a domestic system with jurisdiction as part of the tribunals’ Security Council-mandated Completion Strategies. Putting to the side the imperatives of capacity, efficiency and cost-effectiveness, many experts express a preference for local justice for more deontological reasons. The theory is that judicial processes convened closer to the events in question will enjoy greater legitimacy within impacted regions, help instantiate the rule of law, and enable more meaningful access and participation for victims and witnesses.

Efforts at local justice can backfire, of course, as exemplified by the work of the Bangladesh International Crimes Tribunal (BICT). The BICT is a purely domestic effort proceeding under a 1973 statute defining international crimes within Bangladeshi law. Tracing its roots to the War of Liberation that gave rise to modern-day Bangladesh, the BICT is dedicated to prosecuting alleged collaborators of the Pakistani Army (then West Pakistan) for atrocities committed when East Pakistan (now Bangladesh) sought to secede in March 1971. These events cry out for justice; however, the fundamentally unfair proceedings underway before the BICT pervert the values and goals of transitional justice, insult the victims who deserve a more legitimate accountability process, and threaten to leave a lasting stain on both the Bangladeshi legal system and the system of international justice writ large. Many of the defendants may in fact be guilty of the crimes of which they are charged. But because the proceedings are so profoundly unfair, and the defendants are subject to the death penalty, we will never know for certain. Once hailed as a courageous and important exercise in historical justice, the BICT has become an object lesson for how international criminal law can be manipulated for political ends.

The BICT has drawn sharp criticism for a whole host of reasons, not the least of which is that its proceedings are entirely one-sided. So far, indictments have been leveled against eleven defendants representing the senior leadership of two opposition political parties (nine from Jamaat-e-Islami and two from the Bangladesh Nationalist Party (BNP))—both rivals of the ascendant Awami League. Not a single so-called freedom fighter (mukti bahani) or Pakistani national has been prosecuted, suggesting that the BICT is just a tool within a byzantine political vendetta rather than a genuine, and long-overdue, effort at historical justice. Although Bangladesh has ratified the International Covenant on Civil and Political Rights (in 2000), and was the first, and one of the few, Asian nations to ratify the ICC Statute (on March 23, 2010), many aspects of proceedings run afoul of the litany of procedural protections owed to criminal defendants under human rights law, most notably Article 14 of the ICCPR. Some of this unfairness can be traced to the very genetic code of the BICT’s legal framework; the rest has is attributable to the practice of the tribunal.

Due in part to their perceived unfairness and one-sidedness, the trials have become a dangerously polarizing force in Bangladesh. The verdicts have prompted mass demonstrations, street violence, and destructive hartals (strikes), which have brought Dhaka to a veritable standstill, destroyed public and private party, and led to the deaths of dozens of protesters at the hands of the Bangladeshi security forces. The imposition of the death penalty brings supporters of Jamaat-e-Islami to the streets; a mere life sentence, by contrast, infuriates backers of the Awami League and prompts competing protests and petition drives calling for the application of the death penalty. Many observers breathed a sigh of relief when the Supreme Court on September 17, 2014, commuted the sentence from death to life imprisonment of a leading Islamist politician and cleric, Delwar Hossain Sayedee. Nonetheless, the move sparked street protests, expressions of disappointment from members of the government, and calls for the Constitution to be amended yet again to remove the possibility of pardon. This trial was marked by heightened controversy, particularly when a key defense witness (who had originally agreed to testify for the prosecution) was kidnapped on the courtroom steps by plain-clothed agents as he arrived to testify. (He was later forcibly transported to India where he was promptly arrested for immigration violations). The independence of the judiciary—such as it was—is even more in jeopardy since the 16th Amendment to the Constitution—finalized on September 22, 2014—will empower Parliament to impeach Supreme Court judges for “incapability and misconduct.”

Notwithstanding these defects, the proceedings are popular among a number of victim groups, who have been denied any meaningful justice since the War of Liberation. In particular, the trials have given voice to the so-called Birangonas (“war heroines”), who are on record demanding the mass application of the death penalty—and worse—to BICT defendants. The Birangonas suffered unimaginably during the War of Liberation, and they deserve their day in court. They also deserve a legitimate, fair, and impartial judicial process that will stand the test of time, rather than the facsimile of justice being peddled by the BICT: justice in the service of politics and the demands of the street.

In August, I participated in a session at the San Francisco Bar Association (video here) on the BICT with Toby Cadman, a British barrister doing a yeoman’s job of representing defendants before the BICT. The remainder of this series of posts will provide a backgrounder on the BICT proceedings and the substance of our remarks.  Part 2 provides a deep history of the BICT; Part 3 addresses the BICT’s procedural infirmities.  The BICT can be followed more closely here and here. The best academic treatment of the BICT’s history and jurisdiction is by Suzannah Linton of Bangor University.