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.