Delayed and Denied

ONE BRIGHT MAY MORNING IN 1971 in Chuknagar, a small town in what is now Bangladesh, Ershad Ali Modal was working on his family farm with his father when he heard the loud rumbling of jeeps. His father told Ershad to go back to their hut, about a hundred yards away. From there, he saw the Pakistani army jeeps drive close to their field. A group of soldiers were on the road that led to a large open field where thousands of people had gathered, planning to cross the border at Satkhira and seek safety in India. Pakistani troops were patrolling the area, preventing their Bengali-speaking compatriots from leaving.

They needed only one shot to kill Modal’s father. Modal heard the shot, the jeep moved, and his father had fallen.

Last December, as we walked near the spot where his father died, I asked Modal, now 65: “If you were to meet that soldier again, what would you do?”

“I would behead him,” he said immediately. “Then I would cut his body to pieces and throw them for the dogs.”

The desire for revenge hardens in the absence of remorse from the perpetrator and justice from the authorities. The tens of thousands of Bangladeshis who have congregated at Dhaka’s Shahbag intersection for the past two months are tired of waiting for justice. Their liberation war ended in 1971, but the tribunal to prosecute human rights abuses committed during the war was set up only after 2008, when the Awami League finally secured a two-thirds electoral majority. The demonstrators at Shahbag fear, not unreasonably, that if the Bangladesh National Party, in alliance with the Jamaat-e-Islami, replaces the Awami League following elections later this year, the new government will pardon the Jamaat leaders currently facing trial, and reinforce the culture of impunity that has led to the long delay of justice for the crimes of 1971. Hence the battle cry to end their sense of immunity: phaanshi chai, a demand for the death penalty. In the popular conception of justice, evil deeds do not go unpunished. But when cases are delayed, or never come to trial at all, and when the accused walk around freely, some even rewarded, as they have been in independent Bangladesh, people begin to lose faith in the system.

International law categorises mass atrocities as war crimes, crimes against humanity, and genocide. War crimes include the murder of civilians in times of war, the expulsion of people from their homes and communities, the running of forced labour camps and the indiscriminate destruction of cities or villages not justified by military necessity. Crimes against humanity go further in that they are part of widespread or systematic attacks against civilians—not always during a war—including murders, deportations or forced transfers of populations, and attempts to exterminate through deprivation of food and other essentials.

The gravest of all crimes is genocide, the deliberate and systematic destruction of an ethnic, racial, religious, or national group in whole or part. Bangladeshis have long asserted that the country experienced gonohotta, or genocide in 1971. While some scholars debate whether what happened there meets the legal definition of genocide, crimes against humanity did indeed take place. As these acts are considered heinous, international law requires that they must not go unprosecuted and unpunished, and there is no statute of limitations.

Soon after World War II ended, the victorious allies set up tribunals in Nuremberg and Tokyo to prosecute Nazi and Japanese war criminals. Those trials were swift and so were verdicts, even though there was philosophical criticism of the military tribunals. Radhabinod Pal, an Indian judge who was appointed to the Tokyo Tribunal in 1946, called the trials “an exercise in victors’ justice”, and dissented from majority verdicts, in which Japanese defendants were found guilty.

The idea that such grave abuses would not go unpunished took root, but the history of international courts since those trials demonstrates the difficulty of pursuing justice for wartime atrocities. Ending a war has typically required all sorts of compromises. Laws of war date back to the Hague Convention of 1899 and 1907 and later the Geneva Conventions, but they are often breached. India, for example, exchanged prisoners of war with Pakistan after Bangladesh’s liberation, returning all 93,000 POWs, including 195 officers and men against whom Bangladesh claimed to have credible evidence of war crimes. Bangladesh went along with the compromise because Pakistan assured Bangladesh it would try the 195—it never did.

Cold War politics made it difficult to attain consensus over many divisive issues, including setting up an international court to try war crimes. That became possible only in 1998, when the Rome Statute was adopted, leading to the establishment of the International Criminal Court (ICC) in 2002. While intended to end the culture of impunity, the Court has been hobbled by in-built restrictions—it can only try individuals from countries that have ratified the Rome Statute, only after the exhaustion of local judicial processes, and it can only try crimes committed since the Court was set up or after a country ratified the statute, thereby granting immunity for crimes that occurred earlier. This is unlikely to change, because too many powerful states have too much to hide, and they would prevent ICC’s prosecutors from digging into their pasts. Fearing prosecution of US troops operating abroad, the United States famously withdrew from the Court soon after President George W Bush took office, saying it had its own robust judicial procedures to deal with war crimes, and the real need was for time-bound, conflict-specific courts.

Several such courts exist. However, their record has been mixed. Procedurally robust, the courts often take long to reach their verdicts, which means sometimes victims or survivors may have died, the political context may have changed, and in some instances, the accused have died. Slobodan Milosevic was brought to trial before the International Crimes Tribunal for the Former Yugoslavia (ICTY), but died the day before he was to be sentenced. More recently, former Khmer Rouge leader Ieng Sary died in Phnom Penh even as the trial against him was on at the Extraordinary Chambers in the Courts of Cambodia.

Court processes in the distant Netherlands haven’t reconciled communities in the Balkans. During the Bosnian civil war of 1992–1995, many Muslims were killed at camps in Manjaca and in the town of Prijedor in what is now Republika Srpska, and some of the bodies were dumped in unmarked graves near the iron ore mine in Ljubija. When I was there, nearly a decade after the war, the underlying tension was palpable. I was interviewing Muslim survivors at a coffee shop, and they were telling me about a mass grave near the iron ore mine. Suddenly they stopped talking and kicked me under the table. I hadn’t noticed, but two large men had entered the coffee shop. They were former Serb soldiers, one of the men talking to me said in a hushed tone, and the two Serbs kept staring at us for the rest of our time there. Over the years, Muslims have wanted to pray at a memorial shrine near the Prijedor mine, commemorating those who were killed during the war. Serbs have threatened to blow up the shrine if any ceremonies are held. Reconciliation still seems unlikely.

The International Criminal Tribunal for Rwanda, established to prosecute crimes committed during the civil war of 1990, treated the issue differently, by separating grave crimes from more ordinary ones. Most international tribunals are built on the premise of what legal scholars call retributive justice: you deal with crime with proportionate punishment. The dialogue at the trial is between the prosecutor, representing the state, and the defence, representing the accused, and an impartial judge presides.

During the Rwandan civil war, Hutus killed close to 800,000 Tutsis and moderate Hutus in a hundred days between April and June 1994. That conflict ended only after Paul Kagame secured a decisive victory and vanquished the Hutu forces. Kagame’s autocratic rule is intolerant of criticism; it has shielded him from accusations of his own role during the war, including possible complicity in war crimes. His autocracy provided the stable environment in which it became uniquely possible for the Tribunal to function, in Arusha, Tanzania. The Tribunal has convicted 54 people and acquitted eight so far. But hundreds of thousands were involved in the violence, and some 10,000 died in prison before their trials could even begin.

For crimes that are considered less grave, in 2001, Rwanda set up a community justice system, called gacaca courts, drawing on Rwandan traditions, which sought conciliation at a personal level. The gacaca courts come closer in their approach to restorative justice, where the focus is on the needs of the victims and offenders and involves the community, instead of the more adversarial approach of retributive justice. Victims get a sense of closure. As French journalist Jean Hatzfeld describes in his trilogy The Antelope’s Strategy, Life Laid Bare and Machete Season, the approach of the gacaca courts did appear to work in some local cases.

The sheer range of responses from different societies to similar crimes reveals the complexity of dealing with the past. Cambodia has commemorated the victims of Pol Pot’s regime (1975–1979) at Tuol Sleng, the school famously turned into a prison and torture chamber by the Khmer Rouge which is now a museum in Phnom Penh. The guides are former inmates—some selling their books, some willing to be photographed with tourists. Socheata Poeuv, a US-based Cambodian-American film-maker who has documented survivors’ testimonies in Cambodia, told me the story of a woman whose neighbour had turned in her father to the Khmer Rouge. Her father was murdered in the killing fields. When Socheata asked her how she felt, the woman spoke in an unnaturally calm tone, saying maybe her father had done some bad deeds in his previous life. And what if he hadn’t, Socheata asked her. “Then he,” she said, pointing out the neighbour’s hut, “will return in his next life as a frog.”

An experiment many cite as particularly effective is the Truth and Reconciliation Commission (TRC) of South Africa. Set up in 1994 after apartheid ended, here, victims could come and speak of the human rights violations they had endured, sometimes in public hearings. Championed by Desmond Tutu, the Commission had the specific purpose of preventing further bloodshed that a process of settling scores would have entailed.

It was not meant to heal personal tragedies. Those who had committed abuses—security forces, police officers, politicians who had given orders, and government officials who had followed orders—also gave testimony; in return they received amnesty from civil and criminal prosecution. It allowed many to escape punishment, as the novelist Gillian Slovo was to discover. She had to grapple with conflicting emotions after confronting Craig Williamson, an officer in South Africa’s apartheid-era security apparatus, who had sent the parcel bomb that killed her mother, anti-apartheid activist Ruth First.

Forgiveness can help ease and heal, Slovo told me in an interview in 2009; but she can’t forgive the regime or the people who killed her mother. While the TRC performed a useful role in post-apartheid South Africa, she believes that forgiveness is complicated at the individual level, even if it might be easy at the collective level. For many survivors and victims, the TRC was a compromise.

Bangladesh chose none of these alternatives. Unlike Cambodia, its tribunal does not have international judges or lawyers. Unlike the Yugoslav or Rwandan tribunals, it has no UN support. Unlike the ICC, its court awards the death penalty. While the tribunal seeks legitimacy based on Bangladeshi law and rules it has set up, suspicion has arisen because of the way it has changed some rules, and the way the trial has been conducted. The presiding judge had to leave after it was found that he was in communication with external experts who also appeared to be in consultation with the prosecution, creating doubts about impartiality.

Like Ershad Ali Modal, Meghna Guhathakurta also lost her father. Today an academic and peace activist, she remembers 25 March 1971 as the night when Pakistani soldiers came to her house in the professors’ quarters of Dhaka University and took away her father, Jyotirmoy Guhathakurta. She heard the shots; she saw her father lying in a pool of blood. She was 15. Her father died a few days later. Last year, she showed me the spot where she found him in the compound of her former home.

I asked her what she would do if she were to meet her father’s killers. She said she would like the officer to express remorse and apologise. And she wanted to see a memorial for those who died in Bangladesh to be built in Islamabad, like the Holocaust Memorial the Germans built in Berlin.

Each trauma is individual; each closure is unique. A system cannot fine-tune the delivery of justice such that each victim is satisfied. Some nightmares never end; some wounds never heal. But the formal acknowledgement that crimes were committed is essential, so that it may not be denied that horrible acts occurred. The realisation that it can happen again and the resolve that it must not—these are important building blocks to create a world where impunity has no place. It is not an easy prospect.