The guilty party

December 22, 2013

The guilty party

War crimes and trials related to them often raise controversy. So does Imran Khan with the statements that he makes.

Bangladesh’s birth as an independent and sovereign country was inked in violence and human tragedy. Not surprisingly, nationalism is strong. The memory of the lived human experience of tragedy is fresh since 1971 is not too far back in the past. As any young state does, Bangladesh is grappling with issues relating to its birth--and these will shape its evolution as an adult among nation states.

The Pakistan of today and the West Pakistan of 1971 were and remain responsible for systemic use of organised violence to wreak havoc. In theory the issue should be simple: governments or individuals responsible for systemically targeting innocent people and killing them should have to pay. The same goes for their accomplices. Simple enough, right?

Why then do trials for alleged war crimes divide societies? Why so in this context? Not just within Bangladesh but in Pakistan too. The Jamat-e-Islami in Pakistan has held multiple protests and made clear its displeasure with the hanging of Quader Molla. The National Assembly, urged on by right-wing parties, proceeded to pass a resolution that epitomises bad timing and regrettable content. And yet you would be deeply mistaken to dismiss it completely.

Bangladesh’s mechanism of trying alleged war criminals has largely been respected by the international community. Although Human Rights Watch did raise some reservations in a letter about some of the procedures adopted but the same letter also complimented the government for introducing important procedural safe-guards in the trials.

And of course human rights violations were committed and inexcusable violence was carried out. But will judging these trials be as simple? I do not think so.

Trials for war crimes are as much a political affair as they are a legal one--and it remains true for the tribunal that tried Nazis, Saddam or criminals in Bangladesh.

History shows us that even if the entire global community is united in condemning something, trials have their own politics. And not just procedures but the quality of evidence. Who faces the brunt of the wrath should always be kept in focus. Trials for war crimes are as much a political affair as they are a legal one--and this remains true for the tribunal that tried Nazis, Saddam or criminals in Bangladesh.

Indeed Justice Jackson who argued as Chief Prosecutor at the Nuremberg Trials, quite literally, had to come up with a completely new ‘crime’ under international law to punish Nazis. Genocide was not a crime at the time. But what about excesses committed by Allied Forces? We will never see a trial about that. Because it is the victorious who matter and their politics.

And because it is political, people feel aggrieved. And if we are serious about attaining ‘closure’ we cannot and must not be deaf to those who feel aggrieved. Is it a certain kind of politics that is targeted? Is accountability going to happen across the board? If so, does that mean that violence perpetrated by those holding trials will also be questioned? These are enormously difficult yet important questions.

The focus in Bangladesh is retribution. In South Africa it was truth and reconciliation but even there we have no shortage of complicated debates and nuanced puzzles.

What is more important and sacred? Punishing people for wrongdoings or making sure the punishment is consistent? There are no easy answers and each side carries its costs.

Does a society as a whole feel more cleansed once it hangs perpetrators of violence? This is a question worth thinking about since it does shape our choice of whether to choose retribution or another alternative to attain closure over a painful past. And my deepest sympathies for any anti-death penalty activists in a country determined to hang war criminals. Is something getting lost in the passion?

Pakistan can help its own conscience by apologising for the excesses. It is high time we did so. We must also educate the public about the entire Hamoodur Rahman Commission Report and debate it. Did it even go far enough? What have we done till now to punish those who killed in our name? Terrible atrocities were committed in our name and we must be aware of a painful past to build a more peaceful future. It will be politically divisive and painful for many but it is worth doing so. Egos will be hurt.

And of course many in Pakistan will rise up and legitimately argue that West Pakistanis living in the then East Pakistan were also killed and maimed by freedom fighters. And what about the innocent families of Pakistani service members that were beheaded or raped in the name of revenge or freedom? The question for such people will be, will Bangladesh apologise too? How does one balance or count deaths on two sides? Is it fair to say that one death is insignificant but thousands matter more? Hardly so.

Sharmila Bose’s book, "Dead Reckoning" raises a number of important questions. It has been attacked and it should be attacked I suppose if you disagree with it. But the most valuable lesson of her book is that there was human tragedy and violence on both sides. And there were excesses on both sides. Instead of viewing it as a state versus state issue, one is better off looking at it as a human tragedy.

This is not meant to suggest that excesses or unfair biases of the West Pakistan government towards the then East Pakistan were or are forgivable in any way. But it does give us a better lens to answer the question, "who should apologise and for what?"

For anyone to argue that Bangladeshi freedom fighters committed no human rights abuses is as ridiculous as someone saying that Pakistani forces would do no such thing. Violent conflict driven by passion creates agency -- and each agent might inflict violence in different ways. Arguing benevolence for one side and attributing pure evil to another in conflict zones is not only naïve -- it is disingenuous. The state of Pakistan was highly culpable too. It lost its monopoly of violence as well as the kind of violence that was perpetrated.

And now the state of Pakistan is unsure of how to deal with the burden of guilt. For once we cannot blame it on USA drone strikes so Mr. Khan seems to be in a fix. His statement that Quader Mollah was innocent has hurt the sentiments of many in Bangladesh and Mr. Khan should be sensitive to this. He, from the looks of it, is not in possession of any evidence but is driven purely by personal conviction. That matters little when a country is in the grip of nationalistic fervor to punish perpetrators of great crimes.

So, how will the trials for war crimes in Bangladesh be seen by history? We do not know. I am far too cynical of law bringing solace to a society. But we do know how Pakistan’s repulsive policies and crimes committed in its name against Bengali people are seen in history. And for our part, we must set that right.

We must apologise. It will be the start of something better.

The guilty party