"Let there arise out of you a band of people inviting to all that is good enjoining what is right and forbidding what is wrong; they are the ones to attain felicity".
(surah Al-Imran,ayat-104)
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Unfinished Justice for the crimes of 1971

Fayazuddin Ahmad

The Bangladesh Collaborators' (Special Tribunal) Order was enacted by the Parliament in 1972 (President's Order No. VIII, 1972) to hold trials of those accused of collaboration with the Pakistan army. This was followed by the adoption of International Crimes (Tribunal) Act of 1973 (Act No. XIX of 1973) to "provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law".

Its jurisdiction extended to "all irrespective of nationality, who as members of any armed defense or auxiliary force, committed crimes of humanity, crimes against peace, genocide, war crimes, violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949...".

In 1973, the government prepared a list of 195 personnel of the Pakistan army who were accused of committing genocide, war crimes and crimes against humanity. Panels of senior lawyers were appointed as Special Prosecutors to prepare the cases for prosecution of war criminals. But, in March 1972, under the Geneva Conventions, the Pakistani prisoners of war in Bangladesh were transferred to the custody of the Government of India. Afterward, as international pressure mounted for the release of the POWs, and Bangladesh, India and Pakistan signed a tripartite agreement in 1974; all POWs including the 195 prisoners were handed over to the Government of Pakistan by the Government of India, on an understanding that the Government of Pakistan would try them for their crimes.

In 1974, Sheikh Mujibur Rahman, the President of Bangladesh, announced an amnesty, which exempted a large number of under trial collaborators in jail, but it is to be noted that this did not exempt those guilty of murder or rape from trial. In 1976, General Ziaur Rahman repealed the 1972 law. The special tribunals set up to try the collaborators were disbanded.

Demands for trial of war criminals of 1971 have been reiterated frequently by a large number of organizations and individuals and families of the dead over the years. Following election of civilian governments in 1991 and 1996, the movement for the trial of war criminals, led by the National Coordination Committee on the Implementation of Spirit of Liberation War and Elimination of Killers and Collaborators of '71 gained momentum.

In the last two decades, various organizations have recorded oral histories and testimonies from the survivors of genocide, rape or crimes of humanity. Films and publications on 1971 provide further testimonies of such crimes. The Liberation War Museum has played an important role in collecting archival material and publicising the events through their exhibits. The War Crimes Fact-Finding Committee (WCFFC) has been compiling data on the crimes against humanity committed by Pakistan forces during the Liberation war by documenting eyewitness accounts.

Meanwhile some cases had been started by a few individuals, whose family members had been killed by known persons, in collaboration with the Pakistan Army. Professor Farida Banu filed a case, on September 1997, against Chowdhury Moinuddin, Ashrafuzzaman and others for the murder of her brother Professor Ghiasuddin along with other intellectuals on 14 December, 1971. It was alleged that Chowdhury Moinuddin, a leading member of the Jamaat-e-Islam, was the Operation-in- Charge for the mass killing of intellectuals in December 1971. Materials collected in the course of the investigation were sent by the Scotland Yard in December 1995 to the British High Commission in Dhaka for forwarding to the Ministries of Foreign Affairs and Home Affairs. In Magura, Khadeja Khatoon, daughter of late Hashem Molla, a freedom fighter, filed a criminal case against ten collaborators, but the proceedings were stayed by the High Court.

The acts of genocide by Pakistani army personnel and the activities carried out under "Operation Searchlight" to suppress the political assertions of the people of Bangladesh have not been admitted by Pakistan. Even until the end of the war and the surrender of the Pakistan Army on 16 December, 1971, the people of Pakistan were not informed by the media or by the military leaders of the military action and its outcome.

In December 1971, Z.A. Bhutto, then President of Pakistan constituted an Enquiry Commission, under the Chairmanship of Justice Hamoodur Rahman, to inquire into and find out ""¦the circumstances in which the Commander, Eastern command, surrendered and the members of the Armed Forces of Pakistan under his command laid down their arms and a cease-fire was ordered along the borders of West Pakistan and India and along the cease-fire line in the State of Jammu and Kashmir."

In November 2000, some sections of this report were published which triggered a strong public reaction in Pakistan demanding publication of the full report by the Government. In December 2000, the Government of Pakistan declassified the Hamoodur Rahman Commission report. Reaction amongst Pakistani citizens focused on the demand for a full official publication, for an apology to the Government of Bangladesh for its actions in 1971 and for trials against those held guilty of these charges. Thus the Joint Action Committee for People's Rights in Lahore adopted a resolution in August 2000 for the Pakistan Government to formally apologize to the people of Bangladesh for the atrocities committed by the Pakistani Army during the War of Liberation of 1971.

In spite of the public reaction, the Pakistan Government has taken no steps to act upon the Commission's recommendations. Hamoodur Rahman Commission's report is an important document both from the point of view of what it revealed as well as what it failed to do for the obvious reason that the commission itself had a limited mandate. It provides strong material evidence to demand a trial by a UN War Crimes Commission for the genocide, war crimes and crimes against humanity committed in Bangladesh.

UN Tribunals to try war crimes committed in former Yugoslavia and Rwanda, which have successfully sentenced several persons for war crimes, have set a precedent. The Tokyo People's Tribunal organized by a network of non-government organizations, in December 2000, brought together witnesses who accused the Emperor and the Japanese army for the crime of establishing "comfort stations" and committing sexual crimes against women in Indonesia, Philippines, China, Malaysia, etc. Bangladesh was the first amongst South Asian countries to sign the Rome Statute for the International Criminal Court in September 1999, reiterating its commitment to bring to justice those responsible for committing crimes during the Liberation War in 1971.

In Bangladesh, there has been a continuing demand for trials. Bangladesh needs to pursue justice through the international justice system, since these cannot be time-barred. Trials of war criminals of the Second World War are still taking place under the jurisdiction of different countries. Recent transformation, therefore, is an opportune moment for compilation of evidence and testimonies against individuals accused of war crimes.

The newly elected government should take concrete and systematic steps to prepare cases for trial. It may begin by collating the material submitted by the Special Prosecutors to the Ministry of Home Affairs in 1973. Several organizations and individuals have collected and published oral histories that give eye witness accounts. Ain o Salish Kendra has published a volume of women's oral histories so have the historians at the Mukti Juddho Gobeshna Kendro, who have completed oral histories of those who fought in the war in several unions. The Liberation War Museum could coordinate efforts by concerned organizations to systematically document all such evidence of crimes, to be used in the conduct of the trial.

The writer is advocate and researcher.

 Reply:   Asher
Replied by(asherfawad) Replied on (2/Feb/2009)
First Things First

The alleged "war crimes" of Pakistan Army DOES NOT absolve Mukti Bahini and Indian Army of their murders of many Pakistan-loving Bengalis and Biharis who refused to submit to the REBELLION.

Don't be in such a rush to punish Pakistani Army jawaans. I and many others who weren't born in 1971 or were too little to understand the ground realities of the time, stand up against the empty accusations levelled by the enemies of Pakistan. All we know about the tragic event of the fall of Dacca and the alleged violence by Pakistan Army via plain old conjectures or biased Western and Indian resources. I have always heard fellow Pakistanis demanding the publication of Hamood-ur-Rahman report from time to time as if Pakistani government has committed a crime by not publishing it. Now, I find out that even in America, classified information is NEVER made public until the government decides its declassification status. Then why our immature journalists, media people and emotion-controlled Pakistani Robots (I mean public), were pressurizing Pakistani government to publish a classified information?

Knowing my countrymen very well, I am NOT going to bow down to any propaganda whether intiated by Pakistanis or foreigners. I am not going to let any allegations against Pakistan and her military, go unchallenged.

According to Zaid Hamid, a Pakistani Defence Analyst of Brass Tacks fame, Mukti Bahini hooligans murdered hundreds and thousands of Bengalis and Biharis who did not want to separate from Pakistan. The 1970s elections were strictly controlled by Mukti Bahini and no one was allowed to vote for anyone else except Mujib-ur-Rahman. This says enough about the "popular" support for the rebellion and Mujib-ur-Rahman. It is not surprising to see the horrible end that Mujib-ur-Rahman met. He and his whole family was killed in cold blood and their bodies were thrown outside to rot.

We know how deeply RAW was infiltrated in East Pakistan. There is a STRONG possibility of Indian and Mukti-Bahini involvement in the rape and murder of innocent East Pakistanis and blaming it on Pakistani military. India continues to do this todate. When Indian parliament was attacked by terrorist a couple years ago, India put the blame on Pakistan and ISI immediately. When court proceedings ensued, it was found out that the passports of alleged pakistani terrorists were forged. India kidnaps pakistani citizens and force them into submission by torture or threats of death (all this information is easily verifiable on the internet alone. Read articles by Amresh Mishra and Arundhati Roy)

Nobody has looked at this event from this angle. The world had been quick in putting the blame on Pakistan Army. No Pakistani knows the authenticity of Hamood-ur-Rahman commission report or of Hamood-ur-Rahman himself. Any declaration of United Nation is dubious at best knowing how UN is controlled by vested interests. United States also has declassified 1971 information in which President Johnson has admitted to take Indian side and allowed Pakistan to divide. It is not surprising if US propaganda machinery also reported events out of context to, purposefully, steer public opinions and sentiments against Pakistan and her military.

Your insistence on trying Pakistan will NEVER be tolerated until Palestinians and Kashmiri muslims get their justice first and the involvement of Indian Army and Mukti-Bahini is investigated PROPERLY.

It is IRONIC that no energy and resource is being spent on ending the violence that still goes on in Kashmir and Palestine and yet everybody is so vigilant about alleged war crimes of the past.  I am appalled at this show of apathy of the world's "peacemakers".

 Reply:   Three point answer or you Mr. Asher
Replied by(Noman) Replied on (2/Feb/2009)

1-Yes we want every criminal to be crucified. For Islam and for law there is no one above the law and if Pakistani soldiers have done crime on East Pakistan's soil, then they should be sentenced for that. wrong doing's of Mukti bahni didn't give right to Pakistani soldier to go and rape their daughters or slaughter them.
2-Yes, we want every Indian, American or every corrupt person behind bars and that is why we always talk about Indian and American cruelty on Muslims/others, but if their governments are not convicting them then how can it give right to our BRAVE soldiers to do whatever they want to do.
3-De-classified Hamood-ur-Rehman commission has more explosive material about role of Pak army and have more severe recommendations for them
 Reply:   Asher
Replied by(asherfawad) Replied on (1/Feb/2009)
Why Single Out Pakistan?
Why don't you publish the declassified Hamood-ur-Rahman report here? Also why to ignore the Pakistani perspective on this event. For some Bengalis Mukti-Bahini was a freedom movement. For the rest of Pakistanis, it was a rebellion. What is the punishment for a rebellion and defection? Should a country quietly allow its dismemberment because a section of people are not satisfied with the government? In the case of rebellion of California state, don't you think that USA will try to quell that with power? Hasn't this happend in the past before? Haven't we seen the amount of violence in the US war of independance from England? Wasn't England trying to protect its hold or control of US? Hasn't Queen of England not dissolved the Canadian assembly recently to reassert her power?

And if we are to try Pakistan Army for "war crimes" then why let Indian Army get off the hook for the rape and killings of Kashmiri freedom fighter men and women? In the 1990s for the period of, approximately, 5 years Indian army was given the license to kill and NO international journalist were allowed.

Why the world is so quiet about the recent war crimes of Israeli military against the non-combatant Gazan citizens? Why Israeli military is not tried for violence against Palestinians, Libyans and Lebanese ever since the creation of Israel?

Why single Pakistan out?

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