© copyright nicole longobardo all rights reserved
TRANSCRIPT
© COPYRIGHT
by
Nicole Longobardo
2014
ALL RIGHTS RESERVED
For my parents, to whom I owe so much.
ii
THE SPOILS OF WAR: TRANSITIONAL JUSTICE IN BANGLADESH
BY
Nicole Longobardo
ABSTRACT
In 2009, Bangladesh’s Awami League began a process to try ‘collaborators’ for their alleged
crimes during the 1971 Liberation War. This single case study approach focuses on the nearly
forty years between 1971 and 2009 in an attempt to understand why transitional justice was
delayed and why prosecutions were chosen over other mechanism (i.e. truth commission,
lustrations, etc.). It suggests that the decision of when and how to implement justice in the
aftermath of violent conflict is based upon political elements – parties, actors, international
organizations – thereby supporting an already well-understood dynamic of post-conflict
reconstruction. This research, therefore, examines four factors were critical in shaping the
timing and structure of transitional justice in Bangladesh: (1) the availability of a peace
agreement; (2) involvement of regional and international community actors; (3) culpability of
decision makers/political elites; and (4) domestic political stability.
iii
ACKNOWLEGEMENTS
First and foremost, I would like to thank the two people who made this all possible: my
mom and dad. My parents have supported me both financially and emotionally throughout this
process and so many others. I could not have asked for a better support system throughout my
academic career. To my dad, I would like to thank you for your service as a law enforcement
officer that spanned over three decades. I can remember so clearly riding with you in a squad car
when I was so small looking at you and knowing you were (and still very much are) my hero.
From you, I developed a passion for justice and peace that has led me to where I am today. For
me, you are the best example of what is means to be a peace officer and I will never forget what
that has meant in shaping my character. To my mom, thank you for always being my number
one fan and for never failing to listen to all my worries, complaints and all of life’s woes. The
values you have instilled in me have guided my every step on this path of life. Your whole life
has been dedicated to furthering mine and I hope you know how aware I am of all the sacrifices
you have made to give me what you were never able to have. You have been and will always be
my mom and my best friend.
I would also like to thank my better half, Luca, for never ceasing to support me
throughout my graduate career. Thank you for always putting a smile on my face and for giving
me a boost of confidence when I needed it the most. I cannot imagine not having you with me
throughout this journey. Thank you so much for sharing it with me.
Finally, I would like to thank my committee, Dr. Jeff Bachman and Dr. Aaron
Boesenecker. I could not have asked for two better professors to guide me through this process.
Thank you for constantly pushing me to be a better researcher and for always believing in me
and this project. I will forever be grateful to the both of you for all that you have taught me.
iv
TABLE OF CONTENTS
ABSTRACT………………………………………………………………………ii
ACKNOWLEGEMENTS………………………………………………………..iii
LIST OF TABLES…………………………………………………………...........v
LIST OF ILLUSTRATIONS………………………………………………..........vi
Chapter
1. INTRODUCTION……………………………………………….........1
2. LITERATURE REVIEW………………………………………..........9
3. METHODOLOGICAL PLAN……………………………………….44
4. THE QUEST FOR
JUSTICE……………………………………………………………..56
5. THE BEGINNING OF MILITARY
RULE………………………………………………………………...79
6. AUTHORITARIANISM AND THE
QUEST FOR DEMOCRACY………………………………….........93
7. DEMOCRACY AND JUSTICE
IN A NEW ERA……………………………………………………109
8. SUMMARY AND CONCLUSION…………………………..........136
BIBLIOGRAPHY………………………………………………………………143
v
TABLES
1.1 Summary of findings from 1971 – 2009………………………………….142
vi
ILLUSTRATIONS
Figures
1. Bell-curve showing political instability 125
during the democratic period, 1991 – 2009.
1
CHAPTER 1: INTRODUCTION
“The privilege of opening the first trial in history for crimes against the peace of the
world imposes a grave responsibility. The wrongs which we seek to condemn and punish have
been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being
ignored, because it cannot survive their being repeated.”1 With these words, Robert H. Jackson,
chief United States prosecutor, opened the landmark Nuremberg Trials in 1945 to put on trial and
to punish Nazi war criminals for their part in the extermination of more than ten million people.
The trials were the first time an international body, comprised of representatives from the allied
forces, would attempt to hold individuals suspected of war crimes and other egregious violations
of human rights. The Nuremberg Trials would be a watershed event in the history of
international law and judicial procedure. It set the precedent for addressing the next half-century
of mass atrocities and violent conflict, a process that would come to be known as transitional
justice.
The Nuremberg Trials, however, would not succeed in deterring further acts of violence
and mass genocide. The next century would witness an onslaught of mass violence all over the
world. While Nuremberg set the precedent, the states emerging from such violence had varying
experiences with transitional justice. Some transitions were characterized by an international
tribunal administered largely by the UN, while others took on the form of a hybrid tribunal
utilizing both domestic and international resources while still others chose to prosecute alleged
criminals within their domestic jurisdiction. Additionally, implementing transitional justice
occurred at varying points of the transition. In some cases, transitional justice was implemented
in the immediate aftermath of hostilities while other mechanisms were not implemented until
1 Robert H. Jackson, “Opening Statement Nuremberg Trials, 1945” (November 21, 1945), available at
http://www.pbs.org/wnet/supremecourt/personality/sources_document12.html.
2
years or decades after the alleged crimes were committed. It is important to delineate how and
when these states answered the call for justice in order to situate Bangladesh among these other
cases.
In Guatemala for instance, anti-Communist forces enacted a violent campaign to combat
leftist opponents from 1962 to 1996. A UN-brokered peace agreement in 1996 established a
truth commission, the Commission for Historical Clarification (CEH), which produced a report
of its findings in 1999. It concluded that this “‘criminal counterinsurgency’ perpetrated 626
individual massacres, and killed over 200,000 people, ‘the vast majority’ of whom were
Guatemalan civilians, one-quarter of them women.”2 This was in addition to the approximately
50,000 reported disappearances. Seven years later, in 2006, the UN and the Government of
Guatemala signed the Agreement to Establish the International Commission against Impunity in
Guatemala to strengthen the prosecution of criminal groups that arose out of the formal military
regime.3 More recently, in February 2012, the Guatemala court charged General Efrain Rios
Montt, former dictator, with genocide and crimes against humanity.4
In another instance, Cambodia’s Khmer Rouge implemented a brutal campaign against its
citizens, murdering approximately twenty percent of the 1975 population of 7.3 to 7.9 million
people.5 The atrocities began in 1975 and would not cease until 1979 when the Khmer Rouge
2 Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New
Haven: Yale University Press, 2007), 582.
3 “Background: Justice Delayed,” under “Guatemala,” International Center for Transitional Justice (2014), available
at http://ictj.org/our-work/regions-and-countries/guatemala.
4 Laura Carlsen, “Genocide on Trial in Guatemala,” The Nation (February 29, 2012), available at
http://www.thenation.com/article/166526/genocide-trial-guatemala#.
5 Estimates for the number of people kill differ among various sources. The Vietnamese argue that the total number
is between three to four million whereas historians arrive at anything between 1.5 and 1.7 million. According to
Steven Ratner and Jason Abrams, the estimates point to a death rate of twenty percent of the population. See Jason
Abrams and Steven Ratner, Accountability for Human Rights Atrocities in International Law, second edition (New
York: Oxford University Press, 2001), 276.
3
was ousted by neighboring Vietnam. The UN-brokered Paris Agreement was signed in 1991
establishing the UN Transitional Authority in Cambodia (UNTAC); however, the UN was not
given the authority to try or punish for atrocities of the 1970s nor did it require the future
Cambodia government to implement any such mechanism. After careful persuasion, the
government of Cambodia formally requested UN assistance in 1997 to implement proceedings
for holding Khmer Rouge leaders accountable.6 Eventually a hybrid tribunal – a Cambodian
court with significant UN participation – was implemented under the name the Extraordinary
Chambers in the Courts of Cambodia (ECCC).7 It would take another ten years for the ECCC to
enter pre-trial stages and as of 2011, the courts were still hearing cases three decades after the
Khmer Rouge was overthrown.
As Cambodia prepared to repair its broken society in 1979, a ruthless dictator came to
power in Iraq; Saddam Hussein took control of his ruling Ba’ath party effectively becoming the
president of Iraq. The next 27 years of brutality would come to define his rule and would
eventually lead to one of the most recent transitional justice processes. “Torture, extrajudicial
executions, arbitrary detentions, and enforced disappearances were common.”8 Approximately
300,000 Iraqis disappeared during his rule in addition to the 100,000 Kurds who are believed to
have been executed from February to September 1988. In the south, an estimated half a million
people were expelled to Iran and 50,000 to 70,000 people were imprisoned or disappeared.9 The
regime was toppled after the US-led invasion in 2003, an event that provided an opportunity for
6 Ibid 280.
7 Cambodia Trial Monitor, “Composite Chronology of the Evolution and Operation of the Extraordinary Chambers
in the Courts of Cambodia,” Cambodia Trial Monitor, http://www.cambodiatribunal.org/wp-
content/uploads/2013/08/history_composite-chronology_english.pdf. 8 “Background: A Repressive Recent History,” International Center for Transitional Justice (2014), available at
http://ictj.org/our-work/regions-and-countries/iraq.
9 Ibid.
4
Iraqis to hold Hussein and other senior members of the Ba’ath regime accountable for their
crimes. After being handed over to the interim government in June 2004, Saddam Hussein and
other top-officials were charged, tried and convicted within two years. Hussein was hanged on
December 30, 2006, almost three decades after his brutal campaign began.10
The end of the Cold War ushered in a new era of international law and criminal
procedure as embodied in the mandates of the International Criminal Tribunal of Rwanda and the
Former Federal Republic of Yugoslavia (FRY) and the creation of International Criminal Court
to try crimes under a form of limited universal jurisdiction.11
Two cases, the FRY and Rwanda,
are exemplary of the application of this new paradigm. Transitional justice in the Former
Yugoslavia, for instance, came after years of brutal fighting in Croatia and Bosnia and
Herzegovina (beginning in 1991 and 1992 and ending in 1995) as well as fighting in Kosovo
(1998 – 1999). “The conflicts included widespread attacks against civilians, population
expulsions, systematic rape and the use of concentration camps.”12
An estimated 140,000 people
were killed and almost 4 million were displaced.13
Before the conflicts had come to an end, the
UN Security Council established the International Criminal Tribunal for the Former Yugoslavia
(ICTY) situated at The Hague, the home of the ICC. The ICTY charged over 160 persons and,
by 2009, had finished proceedings against 115 people. In 2008, the ICTY transferred thirteen
10
Ibid.
11
Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (New York: The New Press,
1999), 346.
12
“Transitional Justice in the Former Yugoslavia,” International Center for Transitional Justice Fact Sheet (January
1, 2009), available at http://ictj.org/sites/default/files/ICTJ-FormerYugoslavia-Justice-Facts-2009-English.pdf.
13
Ibid.
5
cases to the national courts in Bosnia and Herzegovina, Croatia and Kosovo as part of its
“completion strategy” to finish its work by 2010.14
In the second case, the International Criminal Tribunal for Rwanda (ICTR) was
established in the immediate aftermath of the 1994 Rwandan Genocide that killed an estimated
half million to one million ethnic Tutsi Rwandans and Hutu sympathizers in just three to four
months.15
Created on November 8, 1994 by the Security Council, the ICTR “was established for
the prosecution of persons responsible for genocide and other serious violations of international
humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31
December 1994.”16
Unlike the ICTY, the Security Council decided to seat the ICTR in Arusha,
Tanzania. The Tribunal has completed its work with regards to the 93 accused; nine persons
remain at large.17
Similar to these transitioning states, Bangladesh has chosen to implement transitional
justice through trials – rooted largely in the Nuremberg paradigm – for crimes nearly forty years
old. The controversy began when the then-East Pakistan (now Bangladesh) Awami League
party headed by Sheikh Mujib Rahman won the 1970 national assembly elections, defeating the
political powerhouse of West Pakistan where the central government was situated.18
The first
meeting of the National Assembly was scheduled for March 3, 1971 when a new constitution
was to be drafted. Mujib made it clear that the new government would be consolidated
14
Ibid.
15
Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur, 559.
16
“General Information,” International Criminal Tribunal for Rwanda, available at
http://www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx.
17
Ibid.
18
“Pakistan National Assembly Election Results,” found in Bangladesh Documents (Dhaka: University Press,
1999), chapter 3.
6
according to the principles of the Awami League’s election manifesto known as the six points
program; regional autonomy for East Pakistan was the plan’s main tenet.19
Then-Pakistani
president Yahya Khan, however, postponed the scheduled meeting indefinitely.
Yahya’s decision sparked mass demonstrations throughout East Pakistan that quickly
turned violent. More than 350 people were killed and one thousand injured as a result of clashes
with the police.20
In an attempt to resolve the dispute and peacefully transfer power to the
Awami League, Yahya traveled to Dhaka to initiate a series of meetings with Mujib. The
meetings, however, were deadlocked by the end of March causing Yahya and his delegation –
including future president Bhutto – to fly back to West Pakistan on the night of March 25. By
then a complete force of West Pakistani troops were in the East wing. In what came to be known
as Operation Searchlight, these troops unleashed a reign of terror upon the Bengali people: “The
Awami League Party workers and sympathisers were brutally gunned down in Dacca streets.
Brutal military force was used to kill unarmed people. Houses were demolished. Women were
raped and killed and children were mercilessly butchered.”21
By the time Operation Searchlight
had come to an end, between 100,000 and 300,000 people had been killed.22
My research will
focus on how these crimes were addressed throughout the four decades since Operation
Searchlight came to an end and after Bangladesh won its independence from Pakistan.
In chapter two I examine the literature related to transitional justice to understand the
varying approaches and mechanisms used to address issues of accountability in the aftermath of
19
Bangladesh Documents, 3. Also see Sheikh Mujibur Rahman, “6-Point Formula – Our Right to Live,” found in
Bangladesh Documents, 23 – 33.
20
Ibid.
21
Ibid 4.
22
The total death toll varies, though the 100,000 to 300,000 range is most accurate according to these variations.
See “Genocide,” Bangladesh Genocide Archive, http://www.genocidebangladesh.org/.
7
mass atrocities. I situate transitional justice mechanisms into three broad categories: legal
justice, restorative justice and justice of remembrance. In chapter three I delineate the
methodological plan that consists of my hypotheses and justification for my chosen method,
process tracing. The next four chapters – four through seven – analyze a specific period in
Bangladesh history.
In chapter four I examine the period from 1971 – 1975 under the leadership of Sheikh
Mujib Rahman. I find that the inability to address transitional justice in both the Simla and Dehli
agreements (i.e. peace agreements related to the Liberation War) is one factor that resulted in the
initial attempt to implement trials over other mechanisms. The absence of a peace agreement
also contributed to the eventual absence of justice that occurred later in the period. In addition, I
find that the initial attempts to implement prosecutions arose from the high level of regional
community involvement. Lastly, I conclude that inability to achieve political stability in
Bangladesh gave rise to instance of delayed justice.
In chapters five and six I focus on the authoritarian periods in Bangladesh, 1977 – 1981
and 1982 – 1991. In both periods, political instability was the most prominent factor leading to
the continued absence of justice. While the regional and international community’s relationship
with Bangladesh had changed dramatically during these periods, I conclude that there was not
sufficient evidence to support my hypotheses regarding the nature and timing of justice when
implemented with a high/low level of regional and international community involvement.
In chapter seven, I focus on the period of a return to democracy 1991 – 2009. In this
period, I find evidence to support my hypothesis regarding political instability, which, by this
time, had become a characteristic feature in Bangladesh. I argue that this characteristic
instability, in part, contributed to delayed justice. Additionally, I examine the role of political
8
actors whose culpability influenced the lack of justice mechanisms during this period. I find that
such actors were present during this era and, therefore, had a hand in further delaying transitional
justice and leading to implementation of justice of remembrance mechanisms. As before, there
was not enough evidence with regards to regional and international community involvement to
conclude that this factor was relevant during this period. Finally, in chapter eight I conclude
with a summary of the findings and a brief section on recommendations for further research.
9
CHAPTER 2: LITERATURE REVIEW
Before holding a discussion with regards to Bangladesh, a review of the theoretical
literature discussing transitional justice must be completed, providing a basis for which the
claims throughout this study are founded. Invariably, in the aftermath of violent conflict, states
come to contemplate how to address past abuses, be they disappearances, torture, extrajudicial
killings, or acts of genocide. They wrestle with a particularly ambiguous yet crucial question:
“What do we do?” The answer is not, however, as simple as the question being asked. In both
theory and practice there are a variety of ways in which this question can be answered, some of
the most notable occurring within the past century (i.e. the Nuremburg Trials, the South African
Truth and Reconciliation Commission, and the International Criminal Tribunal for the former
Yugoslavia). Each of these approaches and the distinct explanations and analyses scholars have
contributed to the field is what now constitutes the theoretical literature on transitional justice.
This section outlines the scholarly approaches to answering the questions regarding
transitional justice to develop an operational understanding of the various mechanisms associated
with its implementation. The analysis also outlines other factors (i.e. political, material, etc.) that
may have a role in influencing how and when the transitional justice regime is developed.
Approaches to Justice
Within the transitional justice literature there have been numerous, often different,
attempts at categorizing the approaches to implementing transitional justice. Many scholars have
found it useful to group these approaches into ‘like-minded’ categories as a means to cognitively
organize the theoretical underpinnings. Utilizing such categorizations can assist in
understanding transitional justice as a sum of its parts rather than an obscure general notion of
the post-conflict period.
10
Leslie Vinjamuri and Jack Snyder have categorized the scholarly literature and the varied
approaches that accompany it into three main “general orientations”: legalism, pragmatism, and
emotional psychology.23
Legalism, for Vinjamuir and Synder, encompasses the use of trials –
domestic or internationally based – as a means to achieve justice in the post-conflict stage. The
pragmatic approach, alternatively, stresses the need to consider the array of consequences
associated with implementing a justice regime – specifically in establishing trials or tribunals –
before deciding on any one particular approach. Finally, the emotional-psychology ‘orientation’
is a victim-centered approach to implementing post-conflict justice that emphasizes the need for
truth and reconciliation rather than retribution and revenge.24
Transitional justice scholar, Rama Mani, has borrowed her categories from Aristotelian
philosophical thought found in Nichomachean Ethics. From this basis, Mani names three
dimensions of transitional justice: ‘legal justice,’ ‘rectificatory justice,’ and ‘distributive
justice.’25
Legal justice, for Mani, is equated directly with the rule of law. Under this category,
re-establishing and strengthening the rule of law is the means to achieve order and security as is
exemplified in the practice of criminal trials.26
Rectificatory justice, Mani states, “refers here to
the question of dealing with injustice in terms of direct physical violence suffered by people
during conflict.”27
This dimension arises out of a need to address the human consequences of
conflict accounting for gross human rights abuses, war crimes, and crimes against humanity. To
23
Leslie Vinjamuri and Jack Snyder, “Advocacy and Scholarship in the Study of International War Crime Tribunals
and Transitional Justice,” Annual Reviews 7 (2004): 346.
24
Ibid.
25
See Rama Mani Beyond Retribution: Seeking Justice in the Shadows of War (United Kingdom: Polity Press,
2002).
26
Ibid 6.
27
Ibid 7.
11
summarize, rectificatory justice can take the form of prosecutions, political purges,
compensation, commemorations, or memorials. Lastly, distributive justice “entails addressing
the underlying causes of conflict, which lie in real or perceived socio-economic, political or
cultural injustices.”28
Here, injustice comes in the form unequal distribution or discrimination in
distribution political or economic resources to the wider population. Therefore, structural
grievances must be addressed to “build the foundations for peace.”29
Each of the three
dimensions, according to Mani, should be pursued simultaneously in the aftermath of violent
conflict.30
Martha Minow diverges from the three pronged approaches already discussed, is Martha
situating the “goals or responses to collective violence [emphasis added]” into two broad
categories: vengeance and forgiveness.31
Vengeance, she argues, seeks to punish alleged
criminals because it is what they deserve; it is an expression of basic self-respect embodied
through a trial. Retribution, as a form of vengeance, is “curbed by the intervention of someone
other than the victim and by principles of proportionality and individual rights.”32
Alternatively,
forgiveness focuses on rebuilding a common humanity among the affected population. Methods
used to forgive can come in the form of amnesties, pardons, ceremonies or rituals of
remembrance, or through the institution of truth commissions.
Scholar/practitioner Neil Kritz, on the other hand, categorizes transitional justice in four
ways: criminal and non-criminal sanctions, acknowledgement of the past, as well as a grouping
28
Ibid 8.
29
Ibid 9.
30
Ibid 11.
31
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston:
Beacon Press, 1998), 10.
32
Ibid 12.
12
of compensation, restitution, and rehabilitation. Criminal sanctions include the use of trials to
achieve some degree of justice. Trials go beyond the capacity to punish and provide a means to
publically air and condemn the crimes as “the best way to draw a line between the old and new
governments, lest the public perceives the new authorities as simply more of the same.”33
Non-
criminal sanctions effectively consist of lustration – a purging of the political sector of those who
served in the repressive regime.34
In arguing for a lustration, scholars assert the essential need to
restore public confidence in government institutions. Acknowledgement of the past can
comprise a variety of methods, criminal trials included. Here, Kritz highlights the use of a truth
commission as well as days of remembrance, the construction of museums and memorials, and
“the incorporation of this recent history into the curriculum of the nation’s schools” to address
past atrocities.35
The final category places emphasis on monetary or material compensation for
victims of criminal behavior during the conflict period.
Ruti Teitel situates justice among five comprehensive categories, each of which has
particular implications for building a complete theory of judicial practice in the post-conflict
stage: (1) criminal justice; (2) historical justice; (3) reparatory justice; (4) administrative justice;
and (5) constitutional justice. Criminal justice is embodied in the institution of trials for
punishing past abusers whereas historical justice is sought when transitioning states attempt to
compile a historical account of the past linking it to the present, characterized in the truth
commission.36
Reparatory justice, as its name implies, is symbolic justice achieved through
33
Neil Kritz, Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC:
USIP Press, 1995), xxi.
34
Ibid xxiv.
35
Ibid.
36
Ibid xxiv and 8.
13
monetarily compensating victims for the brutality they suffered.37
Administrative justice, the
fourth category, is most commonly seen through political purges or lustrations but, as Teitel
argues, can also take the form of public law that works to reconcile the affected population with
the political sphere.38
Finally, constitutional justice comes through constitution-making whereby
these official documents can serve as “dynamic mediating texts, simultaneously backward- and
forward-looking, comprehending varying constitutional modalities and degrees of
entrenchment.”39
It is also important to consider Kathryn Sikkink’s scholarship which focuses on the
prosecutorial mechanism. Where some authors – including Vinjamuri and Synder – argue for
the existence of a two dimensional model (international and domestic trials), Sikkink has argued
for a three dimensional one: international, foreign, and domestic. International trials, she states,
“happen when states, typically acting on behalf of the United Nations, set up tribunals such as
the ICTY and the ICC.”40
Not to be confused with international tribunals, foreign prosecutions
occur when states act in a domestic capacity to try an alleged war criminal from another state
using the principle of universal jurisdiction.41
Lastly, domestic prosecution, which Sikkink
asserts as the most common form, occurs when the state assumes the task of prosecuting those
responsible for past crimes.42
The three together are what comprise a “new trend in world
37
Ibid.
38
Ibid.
39
Ibid.
40
Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New
York: W.W. Norton & Company, Inc., 2011), 4.
41
Ibid 5.
42
Ibid.
14
politics” with regards to “holding individual state officials…criminally accountable for human
rights violations,” what Sikkink calls the ‘justice cascade.’43
Explaining Justice Mechanisms
Each of the approaches to transitional justice just described involve varied justice
mechanisms that can be placed within three general streams: (1) legal justice; (2) restorative
justice; and (3) justice of remembrance. The authors have developed their own characterizations
of justice mechanisms based upon their particular practical or academic experience with each.
Therefore, it is essential that the analysis presented in this research follow this same basic
premise by developing a particular conceptualization of justice.
Legal Justice
The rule of law in the midst of conflict is almost completely broken down and scholars
tend to agree on the importance of re-establishing the rule of law in the post-conflict stage; the
means by which to achieve this goal is where they disagree. Legal justice, as it is referred to
here, is steeped in the tradition of common criminal law, the cornerstone of the rule of law.
Here, trials or international tribunals are asserted as the most viable option to address past
crimes. In Western thought, the trial court is most commonly associated with ‘doing justice.’ In
the United States, for instance, prosecutions are the primary means by which to determine the
guilt or innocence of alleged criminals where prosecutions serve as a means to build and
maintain the rule of law. Therefore, some scholars of transitional justice have argued for the
important role trials play in establishing this type of rule of law regime in the transition to
democracy. In sum, scholars who support instituting prosecutions for addressing past crimes
firmly root their explanations in legalism or conformity to the law. There are, however, two
43
Ibid.
15
conceptualized strands of legal justice. On the one hand, there are those scholars who argue that
trials are the appropriate means by which to punish violations of international law. Others view
trials as the most appropriate way to instate and build the rule of law in transition. These are
further delineated below.
Trials can act as a legitimizing tool for a new regime attempting to build credibility
among a formerly victimized population. Accordingly, instituting trials to prosecute those
responsible for mass atrocities, scholars argue, demonstrates the legitimacy and authority of the
law; it applies to all and not just to a few.44
Luc Huyse, for instance, points out that this
legitimizing tool is an essential ingredient to building a strong democracy. Furthermore, he
states, failure to prosecute may lead to “cynicism and distrust toward the political system,”
thereby undermining the legitimacy of the new regime.45
Others take this a step further, arguing that trials serve to deter future conflict and
criminality and “inoculate the public against future temptation to be complicit in state-sponsored
violence.”46
They serve to warn all potential perpetrators of serious human rights crimes that
such actions will not be tolerated and will be seriously punished.47
According to Diane
44
Jaime Malamud-Goti, “Transitional Governments in the Breach: Why Punish State Criminals?” Human Rights
Quarterly, vol. 12, no. 1 (February 1990): 4. Also see Rama Mani, Beyond Retribution: Seeking Justice in the
Shadows of War, 6.
45
Luc Huyse, “Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past,” in Neil
Kritz, Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC: USIP
Press, 1995), 340.
46
Diane F. Orentlicher, “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” in
Neil Kritz, Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC: USIP
Press, 1995), 377. Also see Luc Huyse, “Justice After Transition: On the Choices Successor Elites Make in Dealing
with the Past,” 340.
47
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 6. Also see Jaime Malamud-Goti,
“Transitional Governments in the Breach: Why Punish State Criminals?”: 6 and Diane Orentlicher, “Settling
Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” The Yale Law Journal, vol. 100, no.
8 (June 1991) and Ruti Teitle, Transitional Justice (USA: Oxford University Press, 2002).
16
Orentilcher, failing to enforce the law in this way has grave consequences for the new regime:
“A complete failure of enforcement vitiates the authority of law itself, sapping its power to deter
proscribed conduct.”48
Moreover, it has been argued that courts provide a non-violent setting to
resolve disputes and thereby become a means towards a more peaceful future and can serve to
educate the population of a newly democratizing society on the rule of law. 49
Furthering these assertions Huyse identifies two main arguments in favor of
implementing prosecutions. First, those in favor of prosecutions argue for such mechanisms
based upon moral considerations: “Putting back in place the moral order that has broken down
requires that ‘justice be done’…”50
A transitioning government is morally obliged to provide
victims with a tangible form of justice for the purposes of psychological healing. Second,
prosecutions can help to strengthen fragile democracies.
Kathrine Sikkink offers a regional study of Latin America to accentuate her argument in
favor of trials while encompassing the arguments presented above. Sikkink highlights four areas
where trials have a potential impact: (1) democracy; (2) human rights; (3) conflict; and (4) the
rule of law. With regards to democracy, Sikkink finds that Latin America, where prosecutions
were used most extensively, has had the most stable democratic transition compared to other
regions that did not use prosecutions to as great of an extent.51
She finds that “Ninety-one
percent of the countries in the region are now considered democratic, well above the level for
Eastern Europe and the former USSR (67 percent), Asia and Pacific (48 percent), or Africa (40
48
Diane F. Orentlicher, “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,”
377.
49
Ibid.
50
Luc Huyse, “Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past,” 339.
51
Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, 148.
17
percent).”52
Furthermore, prosecutions are positively correlated to human rights. Sikkink found
that “countries with more years of prosecutions have, on average, human rights scores that are
better than the regional average...”53
With regards to conflict, Sikkink found no reasonable
evidence that implementing prosecutions led to, extended, or exacerbated violent conflict.54
Though, she cannot claim that an increase in trials will lead to a decrease in conflict, or vice
versa.55
Lastly, Sikkink points to the impact prosecutions have had on the rule of law in Latin
America in conjunction with the authors of the aforementioned material. “[It] should be
recognized,” she argues, “that building rule of law has coincided with human rights prosecutions
in much of the region.”56
The 1985 trial of the Junta in Argentina, she states, went beyond
articulating the concept that no one is above the law, it also “encouraged ‘the discovery of law.’
As ordinary citizens perceived a system of law as more viable and legitimate if it could be used
to hold the most powerful former leaders of their country accountable for past violations.”57
Sikkink concludes that the processes of building a strong rule of law and prosecuting past abuses
are mutually reinforcing while recognizing that prosecutions are not the only way to strengthen
rule of law as others have argued. The debate, however, does not end here.
52
Ibid 148-149.
53
Sikkink used averages from the Political Terror Scale (PTS) coded by Amnesty International and the State
Department. The human rights violations variable (physical integrity rights) was compiled using four variables:
torture, summary execution, disappearances, and political imprisonment. This composite variable scored on a scale
range of 1 to 5, 1 being virtually no violations of physical integrity rights and 5 meaning violations are widespread.
These findings did not control for other factors and were scrutinized among social scientists. Ibid 150.
54
Ibid 153.
55
Ibid 154.
56
Ibid 155.
57
Ibid 155.
18
Scholars also debate whether it is better to carry out prosecutions through international or
domestic institutions. Under international law, the duty for states to prosecute certain human
rights violations is clear; genocide, torture, and extrajudicial killings are among them. Many
proponents of trials point to this international obligation stating that “an amnesty law or an
exercise of prosecutorial discretion that is valid under domestic law may nonetheless breach a
state’s international obligations.”58
Scholars who support the use of an international tribunal for
the prosecution of such crimes argue that establishing judicial institutions such as the
International Criminal Court (ICC) “embody the norm of accountability” and can therefore
strengthen the legal norms in a new, fragile democracy.59
Christopher Joyner, advocate of this
type of process, suggests several factors that argue to support this claim. These factors are also
important to note as possible issues that could arise with domestic trials.
First, war crimes are often committed in locations where they cannot be prevented
or punished easily…second, war crimes in the current era are typically committed
within the territory of a particular state caught up in internal conflict…[and] third,
war crimes involve violent and predatory actions that descend to the level of gross
bestiality.60
If justice in the post-conflict realm aims to address violations of international humanitarian law,
then it follows for these scholars that these crimes should be prosecuted by an international body.
Alternatively, those who oppose trying perpetrators in an international court or under
universal jurisdiction argue for the doctrine’s overreach, highlighting some of the problems that
may arise as a result. Henry Kissenger notes that such a doctrine would “arm any magistrate
58
Diane Orentlicher, “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” 385.
59
Leslie Vinjamuri and Jack Snyder, “Trial and Errors: Principle and Pragmatism in Strategies of International
Justice,” International Security, vol. 28, no. 3 (Winter 2003/04): 10.
60
Christopher Joyner, “The Case for Universal Jurisdiction in Bringing War Criminals to Accountability, Law and
Contemporary Problems,” vol. 59, no. 4 (Autumn 1996): 166-167. Also see Kenneth Roth’s response to Henry
Kissenger’s “The Pitfalls of Universal Jurisdiction” in Kenneth Ross, “The Case for Universal Jurisdiction,”
Foreign Affairs, vol. 80, no. 5 (Sep. – Oct. 2001).
19
anywhere in the world with the power to demand extradition” and would also place the accused
into an unfamiliar judicial setting that “would force the defendant to bring evidence and
witnesses from long distances.”61
Citing post-Franco Spain, Kissenger states that instituting
universal laws has the potential to go against the national reconciliation process as a nation
attempts to deal with its violent past.62
Furthermore, Vinjamuri and Sieff argue that decentralization of trials serves to “mitigate
conflict by deterring potential war criminals” in addition to fostering “democratic development
by assisting in the creation of a functioning judicial system.”63
Citing the cases of Rwanda and
the former Yugoslavia, international tribunals have excluded local actors impeding their capacity
to build judicial institutions meant to keep the peace.64
Beyond these considerations, the
physical distance from the scene of the atrocities “limits the ability of foreign courts to help
rebuild local democratic and legal institutions.”65
“Furthermore,” they argue, “foreign
magistrates – who are immune to the political ramifications of their actions – make decisions that
have the potential to upset political deals reached during democratic transitions.”66
61
Henry Kissenger, “The Pitfalls of Universal Jurisdiction,” Foreign Affairs, vol. 80, no. 4 (Jul. – Aug. 2001): 90.
62
Ibid. Spain, in the post-Franco era, chose to forgo trials and instead focus on reconciliation. With universal
jurisdiction, Kissenger asserts, Spain would have had to endure the criminal tribunal process and may not have been
able to develop the fruitful democracy that is seen today.
63
Michelle Sieff and Leslie Vinjamuri, “Prosecuting War Criminals: the Case for Decentralization,” Conflict,
Security and Development, 2:02: 103.
64
Ibid 106. Boesenecker and Vinjamuri have similarly argued that implementing transitional justice based on
international norms can undermine the locally rooted efforts work to implement justice based on norms, values, and
desires of the affected populations. See Aaron Boesenecker and Leslie Vinjamuri, “Lost in Translation: Civil
Society, Faith-based Organizations and the Negotiation of International Norms,” The International Journal of
Transitional Justice, vol. 5 (2011).
65
Ibid 107.
66
Ibid.
20
Restorative Justice
Restorative justice looks to address the deeper effects of conflict through the
establishment of truth commissions as well as through public apologies, lustrations or purges,
and grants of amnesty. Justice based in reparations, another aspect of the restorative approach,
consists of monetary compensation for victims’ families as well as survivors. Restorative
justice, too, serves to acknowledge the atrocities of the past in an attempt to repair the
brokenness of society. Each of these mechanisms under the restorative approach is meant to
reconcile the victim and perpetuator in a way that touches the emotional-psychology of each.67
It
looks to rebuild relationships by addressing the structural causes of conflict. Here it is important
to look at moral and legal considerations when seeking justice or accountability in the post-
conflict stage.
Samuel Huntington has summarized the main underpinnings of the restorative process in
six main points. First, “democracy has to be based on reconciliation, on the major groups in
society setting aside the divisions of the past.”68
Second, democratization requires that groups
come to understand that retribution is not the particularly acceptable course of action in dealing
with “past outrage.”69
Hence, prosecutions would signal to past abusers that retributive justice is
67
Reconciliation, a main feature of restorative justice, requires definition in order to understand the approach and
the mechanisms that fall under its purview in relation to post-conflict justice. John Paul Lederach, peacebuilding
practitioner and scholar, has presented one of the most comprehensive definitions of reconciliation for the field.
Reconciliation, Lederach states, “represents a place, the point of encounter where concerns about both the past and
the future can meet…[it] suggests that space for acknowledging of the past and envisioning of the future is a
necessary ingredient for reframing the future.” It is a place where truth and forgiveness are brought together in a
physical social space. Reconciliation is where truth, mercy, justice, and peace meet to transform protracted conflict
into sustainable peace. With this definition in mind, a conceptual analysis of reconciliation with regards to
transitional justice can be better understood for this review. See John Paul Lederach, Building Peace: Sustainable
Reconciliation in Divided Societies (Washington, DC: USIP Press, 1997), 27-29.
68
Samuel Huntington, “The Third Wave of Democratization in the Late Twentieth Century,” in Transitional
Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil Kritz (Washington, DC: USIP Press,
1995), 69.
69
Ibid.
21
an acceptable means by which to deal with conflict. Third, because both sides of the conflict
most likely participated in gross violations of human rights, it is appropriate to forgive all
through a general amnesty rather than hold only some perpetrators accountable.70
Fourth, at the
time the crimes were committed they were justified and widely supported by the general
populous.71
Fifth, “many people and groups in the society shared in the guilt for the crimes
committed by the authoritarian regime,” therefore, this collective feeling of responsibility
negates the purpose of prosecutions.72
Lastly, reconciliation is essential for establishing a new
democracy, moral and legal claims to trials aside; it consolidates peace, these scholars argue,
rather than create conflict.
Vinjamuri and Snyder echo Huntington’s second point by describing these scholars as
being “interested in, first, explaining who gets tried for abuses and with what consequences, and
second, deriving consequentialist ethical prescriptions from that explanatory account,”
underpinning these assumptions in “the logic of consequences.”73
This entails “sporadic efforts
by international actors to punish violations in turbulent societies [that] are unlikely to prevent
further abuses.”74
Further, “where trials threaten to create or perpetuate intra-coalition
antagonisms in a new government, they should be avoided.”75
When implementing or
70
Ibid.
71
Ibid.
72
Ibid.
73
Leslie Vinjamuri and Jack Snyder, “Advocacy and Scholarship in the Study of International War Crime Tribunals
and Transitional Justice,” 352-353. 74
Ibid 353.
75
Leslie Vinjamuri and Jack Snyder, “Trial and Errors: Principle and Pragmatism in Strategies of International
Justice,” 13. Also noted by Samuel Huntington’s second point in his case against prosecutions.
22
attempting to implement prosecutorial mechanisms for addressing past abuses, states must
consider the consequences such mechanisms can have on the rule of law.
Departing from this, Martha Minow considers Huntington’s final point regarding
reconciliation. She describes this type of justice as the path toward forgiveness. Minow
illustrates her argument in the following way: “When we have been injured by another’s offense,
we should seek to reconnect and recognize the common humanity of the other, and grant
forgiveness to underscore and strengthen our commonality.”76
Reconciliation, therefore,
attempts to rebuild broken relationships by emphasizing a shared humanity between the parties
to a conflict. Building these new relationships of trust, Minow argues, are important and needed
foundations to build in newly democratizing societies. Furthermore, she states, “those very goals
may be jeopardized by backward-looking, finger-pointing prosecutions and punishments.”77
Beyond establishing a strong democracy, forgiveness allows victims to reassert and reestablish
their own dignity while, at the same time, educating perpetrators on the emotional effects of their
violent actions.78
Only victims can forgive and in this way, the power dynamics shift from the
alleged criminal to the alleged victim.
The mechanism most associated with restorative justice is that of truth seeking , which is
most well-known in the form of truth commissions. Pricilla Hayner, a renowned scholar on truth
commissions, defines these bodies based upon four characteristics:
(1) Truth commissions focus on the past; (2) they investigate a pattern of abuses
over a period of time, rather than a specific event; (3) a truth commission is a
temporary body, typically in operation for six months to two years, and
completing its work with the submission of a report; and (4) these commissions
76
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, 14.
77
Ibid.
78
Ibid 15.
23
are officially sanctioned, authorized, or empowered by the state (and sometimes
also by the armed opposition, as in a peace accord).79
Therefore, a truth commission, according to Hayner, must be temporally limited (i.e. focus on
the past and be operational for a minimum of half a year) and must also produce tangible results
(i.e. investigate and produce a report). Hayner points towards the cases of Germany, El
Salvador, South Africa, and Uruguay to illustrate this definition. It is also important to note that,
in many cases, amnesty was granted in exchange for the truth by those who wished to participate
in the process. In this way, the alleged criminals will be more likely to come forward, testifying
to the truth without the fear of being prosecuted in a criminal court later on. Martha Minow has
stated that “some of the full story would never be known, absent grants of immunity to those
who can tell it.”80
Furthermore, she states that the exchange of amnesty for testimony “affords
the chance to use participation by some to gain participation by others.”81
Therefore, the trade of
amnesty can contribute to a fuller knowledge of the truth through the reconciliation of victims to
perpetrators.
Some scholars have argued that the truth commission also allows for a more immediate
response to mass atrocities when compared with that of trials. Margaret Popkin and Naomi
Roht-Arriaza, for instance, analyze the use of the truth commissions in Latin America. First,
they state, the need for an accounting of the truth is essential when related to certain types of
violence. Disappearances are one example: “The bodies of those who disappeared have never
79
Pricilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001),
14.
80
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, 59.
81
Ibid.
24
been found, leaving family and friends with no possibility for closure.”82
An investigation into
the truth can allow these families to understand what happened to their loved ones, bringing them
the closure they desperately need. Furthermore, “investigative commissions shortcut some of the
difficulties inherent in using ‘normal’ investigatory channels.”83
To start, these commissions are
a more independent judiciary than some trials have proven to be in the aftermath of state-
inflicted terror. In many cases, state officials that become involved in the trials’ functions were
oftentimes complicit in the rights violations. Secondly, they state, implementing truth
commissions is a much less complicated task than would be the case if implementing trials: “the
sheer magnitude of past violations, a dearth of evidence concerning crimes that occurred years
earlier, and the unwillingness of witnesses to testify in unreliable courts further complicates the
task.”84
While these are important considerations to recognize, the authors retain the overarching
notion that the commissions’ major strength is in its ability to listen to and validate the victims’
testimony restoring their sense of dignity.85
Following the pragmatic assumptions of Popkin and Roht-Arriaza, Minow focuses her
argument upon the victim and the collective healing of society. She states, “If the goal of
healing individuals and society after the trauma of mass atrocity is elevated, truth commissions
could well be a better option than prosecutions…”86
The underlying assumption is that truth-
telling will lead to this psychological healing because it affords victims the opportunity to tell
82
Margaret Popkin and Naomi Roht-Arriaza, “Truth as Justice: Investigatory Commissions in Latin America,” in
Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil Kritz (Washington, DC:
USIP Press, 1995), 264.
83
Ibid.
84
Ibid.
85
Ibid 287.
86
Martha Minow, Between Vengeance and Forgiveness Facing History After Genocide and Mass Violence, 57.
25
their stories and the validation of these stories can be restorative.87
In comparison to trials,
Minow states that truth commissions are an appropriate alternative because they are better suited
to meet many goals associated with post-conflict peacebuilding.88
Placing these commissions
within a national context, Minow asserts the importance to the healing and reconciliation of
those groups that had previously been warring with each other; such processes can occur through
a truth commission. The honest acknowledgement of injury and wrongdoings go a long way to
achieve such goals, “The wager of the TRC,” she states, “is that reconciliation can be better
reached if the emphasis is on securing in public form the fullest possible truth.”89
Pricilla Hayner builds a comprehensive review of the assertions listed above, condensing
them into five basic aims that a government may be trying to attain through implementing a truth
commission. The first aim, is “to clarify and acknowledge the truth.” Through fact-finding the
country can “establish an accurate record of [their] past, clarify uncertain events, and lift the lid
of silence and denial from a contentious and painful period of history.”90
The second aim is the
ability “to respond to the needs and interests of victims.” This moves beyond addressing the
psychological trauma of victims and functions instead as a more practical means of assisting
victims and their families. According to Hayner, some commissions can help victims by
designing “a reparations program for [them] or for families of those killed in political violence,
87
Ibid 66-67.
88
Ibid 88.
89
Ibid 79-80.
90
Illustrating her findings, she points to the case in South Africa noting the important role the Truth and
Reconciliation Commission had on ending the continued denial of apartheid crimes. Priscilla Hayner, Unspeakable
Truths: Facing the Challenges of Truth Commissions, 24-25.
26
and in a few cases the lists of victims compiled by the truth commission serve as the list of
beneficiaries once a reparations program is established.”91
The third aim is the ability of a truth commission is “to contribute to justice and
accountability” which Hayner attributes to the naming of names of perpetrators or by the use of
lustrations or political purges, each of which would occur once the commission’s inquiry has
concluded.92
Fourth is the aim “to outline institutional responsibility and recommend reforms.”
In an attempt to prevent future abuses Hayner argues, the commission may “publish an accurate
record of past abuses, with the hope that a more knowledgeable citizenry will recognize and
resist any sign of return to repressive rule.”93
The fifth and final aim is “to promote
reconciliation and reduce tensions resulting from past violence,” which arises out of the ability to
forgive the alleged wrongdoers. Hayner asks, “How can the victims forgive without knowing
whom to forgive and what to forgive them for?”94
On occasion, transitioning states may choose to utilize political purges or lustrations as a
“semi-official mechanism” for accountability usually in addition to a commission or trial.95
Lustrations have been especially present in post-Soviet transitions in Eastern Europe as a means
to address past abuses by Communist leadership, a point accentuated in Herman Schwartz’s
article “Lustration in Eastern Europe.”96
Here, Schwartz outlines the rationale behind purging
many of the Communists after the fall of the Soviet Bloc: “Many believe these people should not
91
Ibid 28.
92
Ibid 29.
93
Ibid.
94
Ibid 30.
95
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 115.
96
Herman Schwartz, “Lustrations in Eastern Europe,” in Transitional Justice: How Emerging Democracies Reckon
with Former Regimes, ed. Neil Kritz (Washington, DC: USIP Press, 1995).
27
be allowed to retain or acquire riches by capitalizing on their ill-gotten gains, or left in positions
of power where they can undermine the difficult and delicate transition to democracy.”97
The
process of politically purging those of the former regime is one way of achieving this end.
Lustration laws can remove those from the political leadership who may still be devoted to the
actions of abuse enacted by the previous government and can therefore serve to legitimize the
new regime, further serving as a trust building mechanism between the new government and the
victims of past abuses.98
Enacting a lustration policy, therefore, is not purely victim centered. It
has a great deal more to do with restoring the relationship between the government and its
citizens and, in this way, should be distinguished from the main purpose of truth commissions.99
Reparations can serve as another compliment to any of the above mechanisms for justice.
However, the concept is conceptually a restorative one. At the “Seminar on the Right to
Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights
and Fundamental Freedoms,” participants identified two forms of reparations – material and non-
material – that exist as in the post-conflict stage. Material forms may include monetary
compensation or may be provided “in other monetary value terms.” Alternatively, non-monetary
forms can include acknowledgement of the truth and the act of perpetrators taking responsibility
97
,Ibid 463.
98
Ibid 475.
99
This is an important point to note. In the scholarship on lustrations, the process has been heavily criticized for its
need to consider individual rights over collectivizing the actions of government officials. Human Rights Watch has
spoken out against such processes arguing for this very concept: “we believe that the means pursued to achieve these
ends” – that is democracy and the rule of law – “should themselves reflect respect for individual rights.” Therefore,
lustrations could arguably be considered a form of retroactive retributive justice rather than restorative. The claims
here are based upon the reason for enacting such a process – restoring the broken relationship between the
government and its citizens – and the means by which this is done (i.e. non-criminal sanctions). See Human Rights
Watch, “Policy Statement on Eligibility for Public Office of Those Associated with Abusive Regimes,” in
Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil Kritz (Washington, DC:
USIP Press, 1995), 488.
28
for their actions.100
Mani has argued for reparations to encompass a broad range of measures
including indemnity (compensation for monetary forms of reparations), compensation (monetary
payment to victims), restitution (“revocation of the unlawful act”), satisfaction, and declaratory
judgment (declaration by a court on illegality).101
According to Mani, each are symbolic gestures
on the part of the new governing regime to acknowledge the past and can accompany what she
would call official mechanisms of justice (i.e. truth commissions or trials).
Scholars have argued that reparations are a way to compensate the victims of past crime
in a way that will “empower individuals and communities to take control of their own lives.”102
While reparations cannot undo the violence that has already been committed, scholars believe
they can contribute to a renewed sense of dignity in the individual stemming from the official
acknowledgement of the crimes.103
Minow poignantly illustrates the use of reparations through
those given to Japanese-Americans interned during World War II. The struggle to gain
reparations for some, she states, “represented the search for public acknowledgement of the
wrongs done. Some also sought to correct the public record and to educate the entire national
and even international community about what had happened.”104
Hence, reparations served a
dual purpose of acknowledgement and recognition in both the domestic and international sphere.
100
“Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of
Human Rights and Fundamental Freedoms: Summary and Conclusions,” provided by Dr. Fred Grunfeld and Ms.
Ingrid Westendorp in Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington,
DC: USIP Press, 1995), 502.
101
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 114.
102
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, 93.
103
Ibid.
104
Ibid 99.
29
These mechanisms outlined here are by far some of the most commonly implemented in
the post-conflict transition. However, these are not the only mechanisms by which states and
societal groups attempt to address questions of transitional justice.
Justice of Remembrance
The types of mechanisms associated with justice of remembrance are dramatically
different from the mechanisms outlined in the aforementioned where the means to address justice
are informal and, at times, unofficial. Here, the focus is on remembering the victims and
commemorating the survivors of mass atrocity through physical, concrete forms of monuments,
memorials, sculpture, plays, poems, etc. It can also take the form of days of remembrance or the
inclusion of recent history into national school curriculums.105
Remembrance can translate to
public acknowledgement that can contribute further to national healing. Turning again to Minow,
these “shared spaces and experiences…produce singular or coherent memories [and] can enable
ways to hold and reveal, in common, competing memories.”106
These structures can name the
victims or depict those who resisted such violence. They can serve to honor or commemorate or
can be seen as a warning to future generations of what has the potential to occur again if steps
are not taken to prevent such atrocities.107
As Minow states, “devoting public spaces to
105
See Neil Kritz, Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington,
DC: USIP Press, 1995), xxvi.
106
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Atrocity, 138.
107
Ibid. Rama Mani has also weighed in on the arguments for instituting justice of remembrance. She has stated
that “commemoration helps victims ‘heal the rupture not only internally but also the rupture the victimization
created between survivors and their society.’” These memorials or monuments can “pay homage” to the victims and
assert the truth of their experience of abuse. She further asserts the deterrent role such acts of commemoration can
have on the nation in the future, much like that found in the argument for the institution of trials. See Rama Mani,
Beyond Retribution: Seeking Justice in the Shadows of War, 115.
30
memories of atrocities means devoting time and energy to decisions about what kinds of
memories, images, and messages to embrace, critique, and resist.”108
Remembrance can serve as a compliment to any one of the aforementioned forms of
justice undertaken in the post-conflict stage. While it can be implemented as the standalone
mechanism, which until recently has been much the case in Bangladesh, it can also very much be
implemented as a supplement to either a truth commission or criminal trial which has been seen
in Cambodia and Rwanda.109
Factors that Influence Forms of Justice Implemented
In coming to a fuller understanding of why one mechanism (i.e. a truth commission) is
implemented over another (i.e. trials) or why some transitional justice regimes have been more
successful than others, an observation and analysis must be completed on the other contributing
factors that have a role to play in this arena. After deep engagement with the theoretical and case
study literature, the factors outlined below have an influence on what type of justice is chosen as
well as when justice is implemented.
When a country enters the post-conflict stage, the new government must decide on a
multitude of issues with regards to governance, politics, and society. In addressing past
atrocities, the country must decide on the type of justice – retributive, reconciliatory, or justice of
remembrance – they wish to implement. In the international sphere, there have been a variety of
responses; some transitioning states have chosen to implement truth commissions while others
have chosen prosecutions and still others have chosen to implement informal justice (there may
also be a combination of the three).
108
Ibid.
109
Ibid.
31
Scholars like Chandra Lekha Sriram have labeled this the ‘justice vs. peace’ dilemma.110
Countries in transition that have experienced vast human atrocity may wish to attain both peace –
an end to the conflict – and justice – a system to hold accountable those responsible for the loss
of human life. However, as Sriram argues, achieving both simultaneously may be impossible.
Therefore, the new government must decide how to proceed. To clarify her point, Sriram points
to the case of Argentina in 1983 under the leadership of President Raúl Alfonsín following the
‘dirty war.’ “He was faced with two contradictory impulses: to ensure stability and consolidate
democracy, and to punish members of the junta and others for appalling human rights violations
that they committed.”111
At first choosing to prosecute the perpetrators, Alfonsín realized that
“justice had come at the cost of peace.”112
After the prosecutions began and arrests were made,
the military attempted several coups forcing the president to retreat, limiting the scale of
prosecutions. The issue was not raised again until 1995 after democracy had been successfully
consolidated.
Sriram, notes, however, that not all contexts are the same; not all regimes encounter the
same issues that were seen in Argentina. It is important, therefore, to understand the constraints
regimes face when moving toward democracy. Sriram has hypothesized three factors that may
contribute to this understanding: the duration of the conflict, the type of conflict, and the type of
transition. Furthermore, she states, “the level of accountability that is feasible is dependent upon
the nature of civil-military relations and/or the balance of power between the government and the
opposition, the nature of international involvement in the transition, and the nature of past
110
Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition
(New York: Routledge, 2004).
111
Ibid 2.
112
Ibid.
32
abuses.”113
This is crux of her argument and it provides insight into how transitioning states
choose between the options available to them for addressing past crimes.
“The response of an incoming government to past crimes and gross violations of human
rights will depend primarily on a combination of domestic political, military, and socioeconomic
factors.”114
In the opening line of her article, Naomi Roht-Arriaza articulates her argument with
regards to the choice a transitioning state has when implementing justice. The centrality of her
argument, however, focuses on the role international actors and transnational organizations can
have in influence this decision. International actors such as the United Nations have played a
major role in brokering transitions in a number of post-conflict cases. In some of these cases, the
UN has been a strong advocate of accountability whereas in others, they have been much weaker
on the issue. In the case of Cambodia, for instance, “under Chinese and U.S. pressures, the UN
originally countenanced a watering down of the language of the peace accords to omit all
mention of the need to bring the leaders of the Pol Pot regime to justice or even forbid them from
holding public office.”115
In Haiti, then President Aristide was pressured by a joint UN-
Organization of American States (OAS) team to accept a blanket amnesty of the military
leadership in exchange for his return to office. However, in the Former Yugoslavia, the UN was
strongly against impunity and has since set up an international tribunal to prosecute alleged
offenders. In short, Roht-Arriaza has argued that international organizations can apply pressure
to a country to implement one form of justice over another.
113
Ibid 13.
114
Naomi Roht-Arriaza, “The Role of International Actors in National Accountability Processes,” in The Politics of
Memory: Transitional Justice in Democratizing Societies, ed. Alexander Barahonda de Brito, Carmen Gonzalez-
Enriquez, and Paloma Aguilar (England: Oxford University Press, 2001), 41.
115
Ibid.
33
Transnational and domestic networks, too, “help to create the demand for, and shape of,
domestic measures to address the past.”116
These networks have largely been driven by human
rights activists who, according to Roht-Arriaza, have become increasingly anti-impunity driven.
Organizations such as this have been able to share information and experiences and have
suggested solutions for various crimes, disseminating non-judicial models from one country to
another.117
Networks such as this have influenced the institution of truth commissions in Chile,
South Africa, and Rwanda where each was built on the experiences had by other states such as
Argentina and Uruguay. Information on these non-judicial mechanisms was shared through
these transnational and domestic networks.118
In inferring from what has been mentioned thus far, domestic and international politics
(i.e. institutions, actors, and interests) are important for understanding transitional justice. In
fact, it is virtually impossible to separate the political realm from the justice realm in the post-
conflict transition because many transitions are inherently political. Ruti Teitel, for instance, has
defined transitional justice in these terms as do many other authors: “I have defined ‘transitional
justice’ as that conception of justice associated with periods of political change.”119
Cillian
McGrattan has further argued that the transitional justice model is political in “its assumptions,
methodology and conclusions” but that theorists have tried to separate the two – the realm of
politics and transitional justice – from the equation entirely.120
Understanding the role of politics
116
Ibid 44.
117
Ibid.
118
Ibid 43.
119
Ruti Teitle, “The Law and Politics of Contemporary Transitional Justice,” Cornell International Law Journal,
vol. 38 (2005): 840.
120
Ibid.
34
(i.e. political actors/leaders, the international community, the interests of both) contributes to a
much broader discussion on how, why, and when justice is implemented in the post-conflict
stage (i.e. why has justice been delayed in Bangladesh for forty years; why were trials instituted
above other methods; and how did politics play a role in this decision?).
In tracing the historical phases of transitional justice, Teitel has accentuated the role
politics has played in such contexts. The first phase noted is seen in the aftermath of the World
War II. Phase two is associated with the post-Cold War era and phase three with the
contemporary conflicts seen around the world today. Each of these phases was and is a product
of the conditions occurring in the realm of international politics. Honing in on the contemporary
realm, Teitel states, “These processes are aimed at advancing multiple political aims in a highly
politicized context of persistent conflict circumstances…”121
Speaking specifically of trials, she
notes that when implemented during ongoing conflict – as was the case for the Former
Yugoslavia – the process is meant to “[jumpstart] the political transition.”122
However, when
implemented with an ineffective, immature rule of law, the consequences can be grave.
According to this argument, the political context is extremely important to consider for it
contributes to how effective or ineffective the transitional justice regime will be; that is to argue
that politics are a major factor and can be a major impediment.
Utilizing Burundi as her case study, Sandra Rubli argues that transitional justice is a
“process of negotiated values and power relations that attempts to constitute the future based on
lessons from the past.”123
In the midst of transition, political actors are shaping the justice
121
Ibid.
122
Ibid 845.
123
Sandra Rubli, “Remaking the Social World: The Politics of Transitional Justice in Burundi,” Africa Spectrum,
vol. 1 (2013), 4. For other authors who discuss the politics involved with transitional justice, see Joanna Quinn, The
Politics of Acknowledgement: Truth Commissions in Uganda and Haiti (Vancouver: The University of British
35
process in a way that ensures the outcomes are in their favor, reflecting their philosophical
premises. In Burundi, the current ruling political party – the National Council for the Defense of
Democracy-Forces for Defense of Democracy (CNDD-FDD) – could potentially wield their
power in shaping the transitional justice process that would come at the expense of the
opposition parties. Therefore, Rubli states, “Transitional justice should be understood as an
inherently political process because it is mainly in the field of politics that we decide how a
society should be organized and how norms and perceptions will be translated into legally
binding institutions.”124
Rama Mani denotes some of main political obstacles associated with instituting justice in
the post-conflict realm. As previously noted, no party to a conflict is solely responsible for the
atrocities committed, nor is one party blameless. Hence, the political task of getting “opposing
factions who have committed atrocities against each other and against innocent civilian
populations to come to a peaceful settlement” becomes much more difficult.125
The parties on
both sides become reluctant to accept guilt for their offenses because of the potential loss of
credibility and power position. Mani points out that when governments turn to violence to
suppress rebel movements, as the government of El Salvador did against the Farabundo Martí
National Liberation Front (FMLN), this task becomes even more challenging since they believe
they are “justly defending their state and citizens.”126
Therefore, she argues, the mere nature of
Columbia Press, 2010); Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs Peace in
Times of Transition ; and The Politics of Memory: Transitional Justice in Democratizing Societies, ed. By
Alexandra Barahona De Brito, Carmen Gonzalez-Enriquez, and Paloma Aguilar.
124
Ibid 9.
125
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 91.
126
Ibid 92.
36
the conflict (i.e. who the actors are, what they are fighting for, and who the victorious party is)
may impede the implementation of a justice process.
Martha Minow in her analysis of the challenges that arise in the political realm also
focuses on the prosecutorial mechanisms. She has pointed out that “the rule of law is potentially
subverted when the trial tribunal is patently or profoundly dependent on political actors and
developments for its operations, resources, and decisions.”127
Accordingly, too much
involvement by the political leadership in matters of transitional justice undermines the rule of
law especially when the tribunals’ implementation “allegedly enacted politics” which was the
case with the Nuremberg and Tokyo trials.128
The relationship between law and politics is
inextricably clear. Minow notes that these bodies must rely on “political calculations made by
other bodies” even to enforce evidence gathering endeavors as well as to arrest perpetrators.
This type of dependence on the political process, argues Minow, “risks undermining the
scrupulous lawfulness of the tribunals.”129
Political involvement works against values of judicial
fairness and impartiality both of which underpin an effective rule of law. Furthermore, these
trials may appear to express “domination rather than justice” when implemented by the
victorious party to a conflict.130
Thus, according to Minow, when implementing justice in the
post-conflict stage, most especially trials, there is a high risk that politics will overtake the law.
127
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, 37.
128
Ibid 31.
129
Ibid 39-40.
130
Ibid 45. For more information on victor’s justice see Bill Wringe, “Why Punish War Crimes? Victor’s Justice
and Expressive Justifications of Punishment,” Law and Philosophy, vol. 25 (2006).
37
The Importance of Resources
A second factor to consider is the importance of resources. Monetary resources may be
scarce in the aftermath of violent conflict, especially if the emerging country spent most of its
national budget on military expenditures that retain no fiscal return. Moreover, with a devastated
infrastructure and an affected population, a significant amount of income is most likely hard to
come by and will remain so for the near future. Even with enough national income to implement
a particular justice process, a country may run out of funds later on causing a considerable
amount of delay and inefficiency. Pricilla Hayner offers the case of South African as an
illustration of a country that struggled under a tight budget. Guatemala and El Salvador
experienced problems, too, where the truth commission ran short of funds in the initial stages.
She goes on to further cite the nine-year commission in Uganda that had to cease functioning
several times while it sought further funding. 131
Without guaranteed funding at the start of these
commissions, they experienced a great deal of problems later on.
With regards to trials, Rama Mani points to the same monetary challenges that have the
potential of making any sort of justice mechanism unfeasible. She notes that “international
financial support for trials, when received, is usually limited, and may also risk deflecting
assistance from other urgent projects of reconstruction.”132
The need for monetary assistance
increases when mass crimes were perpetrated by a significant number of alleged criminals. She
directs the reader’s attention to the International Criminal Tribunal for Rwanda that consumed
$36 million for 1996 alone and had only prosecuted twenty-one people.133
131
Note that Hayner only discusses truth commissions here. Pricilla Hayner, Unspeakable Truths: Facing the
Challenge of Truth Commissions, 223.
132
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 96.
133
Ibid.
38
Beyond financial resources, there also exist problems with gathering evidence and
witnesses for prosecution. It is highly unlikely that mass atrocities were documented while the
conflict was ongoing making it difficult in the aftermath to prosecute any alleged criminals.
Exacerbating these problems is the fact that witnesses often, “lack the courage to testify against
abusers for fear of reprisal,” making prosecution especially difficult if the witnesses are the only
source of evidence.134
The selection of judges and commissioners can also change the shape of
the outcome. In some instances finding competent and qualified persons to take on these
positions can be difficult where conflict has done much to undermine the rule of law. It is
nonetheless essential for the success of any transitional justice regime to bring forth the most
qualified candidates; without them, post-conflict justice may be an ultimate failure.135
The
availability of experts and advisers can also become a major hurdle to overcome, especially
when the transitioning state lacks support from both the international community and the local
and regional community. These issues are only exacerbated when justice is delayed for a
significant amount of time. Evidence can be lost and elderly witnesses begin to increasingly pass
away – a problem being faced in Bangladesh.
Justice Delayed in the Aftermath
When a post-conflict country is making the transition from authoritarian to democracy, it
is faced with deciding to implement one – or more – of the mechanisms analyzed and described
above. In the case of Bangladesh, the legal justice paradigm was chosen to address past crimes.
Though, here, justice was delayed for forty years. The question that arises from such an
observation is, “Why has such a delay occurred?” To understand the instance of this transitional
134
Ibid 97.
135
See Pricilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions, 215.
39
justice regime, it is important to observe other cases where justice has been delayed for a
significant amount of time in order understand what factors played a role. Henceforth, this
section is devoted to such an undertaking.
Cambodia
When the Khmer Rouge came to power in 1975, Cambodia experienced a tragic turn of
events. To summarize the situation, over one million Cambodians, Vietnamese, Chinese and
various other ethnic groups from the region were killed (an estimated twenty percent of the total
1975 population).136
This killing campaign continued until 1979 when the Vietnamese forces
launched a full scale invasion of Cambodia ousting the Khmer Rouge and forcing the party’s
elites to flee into neighboring countries. An agreement was not reached between the Khmer
Rouge and Vietnam until October 23, 1991 when the UN brokered Paris Agreement was signed.
The agreement, however, failed to set provisions for enacting justice against the perpetrators of
crimes committed between 1975 and 1979. It would not be until 1997 that the Government of
Cambodia would ask for UN assistance in seeking justice for these crimes.137
That same year,
Hun Sen, former Prime Minister of the State of Cambodia, staged a coup taking power in July;
the political balance of power shifted and with it the initial support for UN assistance dissipated.
Eventually, a hybrid agreement was implemented, though the tribunal would not reach its pre-
trial stages until 2007. 138
136
This figure is somewhat disputed among historians. Some have put this figure at 1.5 million, others at 1.7
million and further others have estimated two to three million people were killed. According to the author, most
agree on the twenty percent value which is why it is used here. See Jason Abrams and Steven Ratner,
Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 276.
137
Ibid 277 – 280.
138
The model the UN proposed would have looked something like the tribunals set up for the former Yugoslavia as
well as the that set up for Rwanda. Ibid 280 – 281. Also see Cambodia Trial Monitor, “Composite Chronology of the
40
The transitional justice mechanism seen in Cambodia mixes international assistance
provided by the UN while conducting the trials domestically. Some scholars have argued that
this grants the tribunal a great deal of legitimacy “by ensuring local ownership.”139
It has also
been argued that despite this mixed model, the tribunal cannot live up to international standards
of justice most especially because a majority of Cambodian judges – plagued by corruption,
incompetence, and easily influenced by the government – are presiding over these
prosecutions.140
The political dimensions cannot be ignored when analyzing the case of Cambodia.
Opponents of the trials have argued, “It is in the government’s interest to use the prosecution of
the Khmer Rouge leaders as a symbol of the CPP’s role as the main force that brought down the
Khmer Rouge.”141
Because the CPP descends from the installment of the Vietnamese
government in 1979, the trials against the Khmer Rouge serve to justify the CPP’s place in
Cambodian history. Hence, the trials benefit the current regime in a number of ways.
Furthermore, “Hun Sen, a Khmer Rouge defector himself, has alternatively embraced and
chastised the Khmer Rouge leaders, sometimes wanting to ‘dig a hole and bury the past’, and at
other times insisting that prosecuting Khmer Rouge leaders could not be avoided.”142
Evolution and Operation of the Extraordinary Chambers in the Courts of Cambodia,” Cambodia Trial Monitor,
http://www.cambodiatribunal.org/wp-content/uploads/2013/08/history_composite-chronology_english.pdf.
139
It should also be noted that a similar mixed model took place in Sierra Leone, however, in that context justice
was implemented much more swiftly. See Ellen Emilie Stensrud, “New Dilemmas in Transitional Justice: Lessons
from the Mixed Courts in Sierra Leone and Cambodia,” Journal of Peace Research, vol. 46, no. 1 (2009).
140
Ibid 11. Also see Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 100.
141
Ibid 11-12. Note the CPP (Cambodian People’s Party) is the revised name of the State of Cambodia (SOC)
mentioned earlier in the analysis.
142
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 100.
41
Capriciousness on the part of the government has also hindered effective establishment of
prosecutions.
As mentioned briefly above, there has been an enduring fear on the part of the
international community that judges involved and chosen for the tribunals will not be able to
retain an independent perspective. Beyond their incompetence, international NGOs have argued
that the government will wield control over the judges to influence the outcome of the process.143
Thus, any hope for an improvement in the rule of law in Cambodia has faded with the lack of
independent judiciary. This politicized process is, therefore, unlikely to produce any positive
tangible results in the near future as hypothesized by other scholars in the international
community: “When a court is established almost 30 years after the abuses to prosecute only a
handful of ageing Khmer Rouge leaders, it seems pertinent that the forward-looking role of the
court is facilitated and prioritized. But there is little in the operation of the [Extraordinary
Chambers in the Courts of Cambodia] ECCC thus far that suggests that the legacy of the court
will be significant.”144
To summarize the above, the Cambodia case is illustrative of the role domestic politics
can play – either positive or negative – in instating transitional justice. Political events (i.e.
Vietnamese rule, turn over to Cambodians, and subsequent takeover by Sen), for instance, have
shaped the response to the genocide enacted by the Khmer Rouge and political leaders have had
a heavy hand in subsequently shaping how justice in implemented. Furthermore, this case
illustrates the tug-of-war that can occur between the pressure exerted by the international
community to implement an international tribunal and the resistance on the part of the particular
143
Ellen Emilie Stensrud, “New Dilemmas in Transitional Justice: Lessons from the Mixed Courts in Sierra Leone
and Cambodia,” Journal of Peace Research,11.
144
Ibid 12.
42
state who wish to institute justice on their own terms and in their own way. All these factors
have had a part to play in why justice has been delayed for such a long period.
Conclusion
There is great complexity involved in instituting transitional justice in the aftermath of
violent conflict as evidence through the review of this literature. The process is not clear cut and
many factors need to be considered before such a process can be implemented. The decision to
implement one mechanism over another is made in a variety of ways. Accountability for past
crimes can be negotiated as part of an agreement to end civil and societal violence where parties
to the conflict have an agreed upon framework for addressing these crimes.145
In some cases,
these accords or compacts have resulted in partial amnesties and have further set up truth
commissions as non-prosecutorial mechanisms.146
There have also been calls for national or
international tribunals as a means to implement criminal justice proceedings. The decision can
also be made by the ‘victorious’ party after the agreement has already been signed, something
known as ‘victor’s justice.’147
External influences, such as other state actors or the international
145
Priscilla Hayner, “Negotiating Justice: Guidance for Mediators,” Center for Humanitarian Dialogue (January
2009).
146
South Africa is the most well-known example of this where a partial amnesty was granted and a truth
commission was further established to address both retributive and restorative aspects of justice. Examples of
limited or partial amnesties in peace agreements include the Cotonou Agreement in Liberia (1993) and the Arusha
Peace and Reconciliation Agreement for Burundi (2000). See Leslie Vinjamuri and Aaron Boesenecker,
“Accountability and Peace Agreements: Mapping Trends from 1980 to 2006, report to the Centre for Humanitarian
Dialogue (September 2007) 16.
147
Some have asserted this to be the case in Bangladesh where violence and murder occurred on the part of the
Pakistani Army as well as the Bengal Liberation fighters. While the issue remains contentious, it cannot be said
with certainty that ‘victor’s justice’ is taking place in Bangladesh, though it is a case that exemplifies what this type
of justice looks like. See Sarmila Bose, “The Question of Genocide and the Quest for Justice in the 1971 War,”
Journal of Genocide Research 13(4) (November 2011).
43
community, can also have a say in which path is best suited for the post-conflict country.148
In
some cases, implementing justice can be put off until after a country has achieved relative
stability so as to better handle the process.
The motivations for implementing a particular mechanism over any of the alternative
approaches, is a further consideration of analysis. Is justice meant to re-build the rule of law? Is
it meant to restore and reconcile communities? Or, is it meant to simply acknowledge the
wrongs of the past? These are important questions to consider when working towards a
comprehensive understanding of transitional justice processes.
Transitional justice is further complicated when there is a significant delay in its
implementation evidenced through the troubling case of Cambodia. Categorized under the same
type of delay is the case of Bangladesh where a legal form of justice, exemplified by the trial
court, has been instituted forty years after the atrocities took place. This review of the literature
raises important questions with regards to this delay, particularly with regards to what may have
contributed to the phenomenon. What contributing factors may have led to a forty year delay in
transitional justice and why has the legal justice approach been chosen as the means by which to
implement this mechanism?
148
The transition from totalitarianism to democracy in Afghanistan is a more contemporary example of such
international intervention occurring in the realm of transitional justice. United Nations Special Representative
Lakhdar Brahimi took the pragmatic approach to the transition by his ‘peace first, justice later’ implementation
strategy. In doing so, he and the international community that he represented, decided to direct Interim President
Hamid Karzai to forgo prosecuting war criminals because of the backlash this type of retributive justice could have
to fragile democratic state. In subsequent years, a general amnesty for all crimes has been issued by Afghanistan’s
parliament. See Ahmad Nader Nadery, “Peace or Justice? Transitional Justice in Afghanistan,” The International
Journal of Transitional Justice, 1 (2007).
44
CHAPTER 3: METHODOLOGICAL PLAN
The primary aim of this research is apply the theoretical literature of transitional justice to
analyze and explain how justice is implemented in the post-conflict environment and why in
certain cases it has been delayed for a significant amount of time after the conflict has ended. It
specifically considers the case of Bangladesh where trials have been implemented after forty
years of impunity for the alleged crimes committed during the 1971 War for Independence. The
case considers the period between 1971 – when the War for Independence came to an end – and
2009 – when the implementation of trials began.
In order to proceed in this way, I defined the following independent variables which I
gleaned from the theoretical literature: (1) the nature of how the transitional justice regime is
implemented (i.e. through a peace agreement or in the aftermath the accord); (2) the level of
international community involvement; (3) the level of regional community involvement; (4) the
decision-maker (who is deciding on the type of transitional justice regime); and (5) the level of
political stability. Based on these variables I developed the following hypotheses:
1. If post-conflict justice is implemented through a peace accord, delayed justice is less
likely. The justice mechanism will also be less likely to follow the legal justice
framework.
2. When the international and regional communities are involved in implementing a
transitional justice regime, delayed justice is less likely. Involvement of these
communities will also make legal justice the more likely path for implementing a
transitional justice regime.
3. If the decision-makers were culpable in committing the alleged crimes, delayed
justice is more likely. In addition, the country will be more likely to implement
mechanisms of the justice of remembrance framework.
4. The more politically unstable a transitioning state is, the more likely it is for justice to
be delayed. Furthermore, a country will be more likely to follow the justice of
remembrance framework if political stability is absent.
Each of the hypotheses addresses two factors that I observed throughout this analysis: the
timing and nature of transitional justice. When negotiated as part of a peace settlement, justice
45
mechanisms may be more likely to be instituted soon after the conflict has come to an end.
Furthermore, if transitional justice is included within a peace agreement, it will be less likely to
follow the patterns of legal justice as exemplified in the trial court.149
The international
community or regional community can also have a hand in what type of justice is implemented
by pushing a transitioning state towards one form of justice or another. These communities can
also lend legitimacy to a post-conflict justice regime allowing justice to be instituted without
delay.150
Domestic factors can have a prominent role to play as well. Political actors can shape
the justice process in how it is undertaken (trial, truth commission, lustration, etc.) and in when it
carried out. These actors can either pass or block legislation with regards to transitional justice.
They can also use their political authority to choose how and when justice is administered. 151
A
lack of political stability can also contribute to a delay as transiting states may choose to
postpone justice until democracy has been consolidated.152
Each of these factors – the existence
of a peace accord, international and regional community involvement, the role of the decision-
makers, and political stability – are treated as independent variables throughout this study.
Ontologically, this methodological plan derives from the neo-positivist belief that both
tangible and intangible phenomena in the social sciences, in particular the study of
peacebuilding, can be observed through investigative inquiry where a reality exists beyond social
149
Leslie Vinjamuri and Aaron Boesenecker, “Accountability and Peace Agreements: Mapping Trends from 1980 to
2006,” Report for the Center for Humanitarian Dialogue (September 2007).
150
The Politics of Memory: Transitional Justice in Democratizing Societies, ed. By Alexandra Barahona De Brito,
Carmen Gonzalez-Enriquez, and Paloma Aguilar (New York: Oxford University Press, 2001); Sandra Rubli,
“Remaking the Social World: The Politics of Transitional Justice in Burundi,” Africa Spectrum, vol. 1 (2013).
151
The Politics of Memory: Transitional Justice in Democratizing Societies, ed. By Alexandra Barahona De Brito,
Carmen Gonzalez-Enriquez, and Paloma Aguilar; Martha Minow, Between Vengeance and Forgiveness: Facing
History after Genocide and Mass Violence (Boston: Beacon Press, 1999); Bill Wringe, “Why Punish War Crimes?
Victor’s Justice and Expressive Justifications of Punishment,” Law and Philosophy, vol. 25 (2006).
152
Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs Peace in Times of Transition
(New York: Frank Cass, 2004).
46
interactions.153
Epistemologically, I take the “position that advocates the application of the
methods of the natural sciences to the study of social reality and beyond.”154
Research Methodology
For this particular research, I employed a within-case analysis to construct an analysis
based upon evidence that is used to test the theoretical claims of transitional justice. According
to John Gerring, “A case study may be understood as the intensive study of a single case where
the purpose of that study is – at least in part – to shed light on a larger class of cases (a
population).”155
This research attempted to ‘shed light’ on cases where a country has
experienced a delay in transitional justice implementation in the aftermath of mass atrocities.
While employing case study methods I was aware of its many tradeoffs including its problems of
possible over-generalizability and “problems of representativeness because it includes, by
definition, only a small number of cases of some more general phenomenon.”156
This, of course,
makes external validity difficult that would not necessarily be the case for another method such
as cross-case studies, a point argued by Gerring.157
Despite these and other problems, a case
study remained the best such method to employ for this particular research for “the investigation
of a single case may allow one to test the causal implications of a theory, thus providing
corroborating evidence for a casual argument.”158
George and Bennett go even further and state:
153
See Patrick Thaddeus Jackson, The Conduct of Social Inquiry in International Relations: Philosophy of Science
and its Implications for the Study of World Politics (London: Routledge, 2011).
154
Jonathan Grix, “Introducing Students to the Generic Terminology of Social Research,” Politics, vol. 22, no. 3
(2002) 178.
155
John Gerring, Case Study Research: Principles and Practices (England: Cambridge University Press, 2006) 20.
156
Ibid 43.
157
Ibid.
158
Ibid 45.
47
Case studies allow a researcher to identify and measure the indicators that best
represent the theoretical concepts the researcher intends to measure…Case studies
have powerful advantages in the heuristic identification of new variables and
hypothesis through the study of deviant or outlier cases…[they] examine the
operation of causal mechanisms in individual cases in detail.159
The case of transitional justice in Bangladesh is a particular poignant case to examine under the
case study method since it raises new questions and issues with regards to transitional justice
theory because of the significant delay in implementation and the mechanism chosen by which to
do so. Bangladesh, with these questions in mind, offers an ideal case for examining the
implications of existing theory and areas for theory development as outlined by George and
Bennett.
Utilizing the case study method allowed me to delve into a single case of delayed, legal
justice, observing in detail how the variables gleaned from the theoretical literature contribute to
the case; I wished to conduct a study that is deep rather than broad.160
Being able to focus my
attention on one case also allowed me to potentially identify new variables that the theoretical
literature may not have taken into account, a contribution that would have been less likely if
utilizing cross-case methods where the analysis depends in large part on testing hypotheses
rather than generating them.161
Furthermore, being that the case study approach is favorable for
the purposes of discovery, it was the most appropriate method for the study of this topic –
delayed justice – which has not been examined in great detail within the scholarly literature.
In conducting the research, I made use of what George and Bennett term “process-
tracing” as a method to understand the political history and how that history then plays a role in
159
Andrew Bennett and Alexander George, Case Studies and Theory Development in the Social Sciences
(Massachusetts: MIT Press, 2005) 19-22.
160
John Gerring, Case Study Research: Principles and Practices, 49.
161
Ibid 45.
48
shaping justice in the particular case under examination. The authors point to its importance in
saying, “Process-tracing is an indispensable tool for theory testing and theory development not
only because it generates numerous observations within a case, but because these observations
must be linked in particular ways to constitute an explanation of the case.”162
David Collier
further notes that process tracing can contribute to research objectives that include “identifying
novel political and social phenomena and systematically describing them [and] gaining insight
into causal mechanisms” both of which were objectives in this study.163
Through these
objectives, the research observed and analyzed “snapshots at a series of specific moments” which
Collier describes as the beginning of the “descriptive component of process tracing.”164
To be more specific with regard to the process tracing model, here I utilized what Beach
and Pedersen have called the “[explanation of] a particularly puzzling historical outcome.”165
Instead of being theory driven, this process tracing model is case-centric and seeks to “craft a
sufficient explanation of the outcome” in a specified case under observation.166
This form takes
on the appearance of a historical analysis because it seeks to identify the causes of a particular
outcome. However, “the ultimate explanation usually involves more generalizable theoretical
claims than historians feel comfortable with,” and can, therefore, still be classified under the
social science purview.167
Despite its single-case nature, findings of explaining outcome process
tracing studies can have an impact at the theoretical level that can reach beyond the specific case
162
Ibid 207.
163
David Collier, “Understanding Process Tracing,” Political Science and Politics, vol. 44, no. 4 (2011), 824.
164
Ibid.
165
Derek Beach and Rasmus Brun Pedersen, Process-Tracing Methods: Foundations and Guidelines (United States:
University of Michigan Press, 2013), 11.
166
Ibid 11.
167
Ibid 19.
49
being analyzed. It is important to keep in mind, however, that the outcome and explanation
cannot be removed from this case.168
Explaining outcome process tracing, according to Beach and Pederson, can take two
varied forms: deductive and inductive paths. The deductive route, according to the authors, tests
“an existing mechanism…to see whether it can account for the outcome,” similar to the steps of
theory-testing.169
Hence, it can be said that the deductive path is based upon research at the
theoretical level. For this research, however, I followed the inductive path that is “often used
when examining a little-studied outcome,” in this case, delayed transitional justice. In the case
of inductive research, the study is based at the empirical level where the first step in the analysis
is to identify and outline the historical narrative; it is as Beach and Pederson call it, detective
work.170
Using this inductive frame allowed me to work from the bottom-up to see, first if my
independent variables were present in the case at hand and, if so, in what combinations. Then it
was necessary to see if, in fact, the presence of these variables produced the observed outcome
(dependent variable). In order to proceed in this way, I conducted a historical analysis of
Bangladesh from independence in 1971 until the 2009 implementation of the transitional justice
regime.
Determining whether or not there is a “minimally sufficient explanation” for a causal
relationship is one of the challenges associated with this type of inductive analysis.171
Beach and
Pederson note that there is not a general solution to this problem but that the explanation “is
based on an assessment of whether all the relevant facets of the outcome have been accounted for
168
Ibid.
169
Ibid.
170
Ibid 20.
171
Ibid.
50
adequately…we stop when we are satisfied that the found explanation accounts for the most
important aspects of the outcome.”172
This required an assessment heavily based upon
knowledge acquired a priori which informed my inferences when studying the case of
Bangladesh. If, after the evidence had been gathered, the outcome produced supported the
predicted outcomes (hypotheses), then I was able to have a higher degree of confidence in the
validity of the hypotheses (listed in the aforementioned) when compared to my prior knowledge
of transitional justice.173
There are limits to using the process tracing method despite its many strengths and
contributions to qualitative research. George and Bennett have argued that two limits exist each
of which focus on causal mechanisms. First, the authors state that the causal path between
causes and effects must be observed uninterrupted for the existence of “a strong basis for causal
interference.”174
In other words, hypotheses are severely weakened if evidence exists that any
variable along the causal path conflicts with the expected outcome. Second, “there may be more
than one hypothesized causal mechanism consistent with any given set of process-tracing
evidence.”175
The researcher has to assess whether these alternative explanations are
complimentary, causal or altogether false.
Case Selection
To analyze the research problem and question, The People’s Republic of Bangladesh was
examined. Bangladesh has undergone a dramatic transformation within the past five years. In
172
Ibid 20-21.
173
Ibid chapter 5.
174
Alexander George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences, 222.
175
Ibid.
51
2008, the Awami League returned to power, marking another shift in the political balance of
power that has defined the country since independence from Pakistan in 1971.176
The Awami
League’s return to power is just one of the major political events that have occurred throughout
the country’s history.
Although justice continues to be an issue of contention in Bangladesh, the Awami League
has proceeded with prosecuting those responsible war crimes177
from the 1971 Liberation War.
Almost immediately, the Awami League began charging those suspected of aiding or
participating in actions against the people of Bangladesh, including those who committed gross
acts of violence against the League’s leadership between independence and political victory in
2008. By November 2009, over three thousand paramilitary troops went on trial and five army
officers were convicted of killing former president Sheikh Mujibur Rahman, a crime almost as
old as the country itself.178
With an amendment to the old statute of limitations from 1973, the
government was able to set up the International Crimes Tribunal in 2010 that has already handed
down sentences for rape, murder, victimization and other crimes.179
The first verdict was
176
Jalal Alamgir, “Bangladesh’s Quest for Political Justice,” Current History (April 2010), 151.
177
War crimes for Bangladesh has meant those who collaborated with the enemy (Pakistani Army) to commit rape,
murder, and extrajudicial killings, all of which have been placed under the purview of genocide.
178
“The Trials of Sheikh Hasina: The Country’s History in the Dock,” The Economist, 26 November 2009 (from
print edition), http://www.economist.com/node/14966290?zid=306&ah=1b164dbd43b0cb27ba0d4c3b12a5e227
(accessed 15 March 2013).
179
It should be noted that this is a domestic tribunal, not an international court despite the name. “The Trial of the
Birth of a Nation,” The Economist, December 15, 2012 (from print edition),
http://www.economist.com/news/briefing/21568349-week-chairman-bangladeshs-international-crimes-tribunal-
resigned-we-explain?zid=306&ah=1b164dbd43b0cb27ba0d4c3b12a5e227 (accessed March 15, 2013).
52
delivered in January 2013 when a former Jamaat member, Abul Kalam Azad, was sentenced to
death.180
Understanding why this particular mechanism of justice was chosen and why the
transitional justice regime was implemented forty years after the War for Independence came to
end required a historical analysis of the kind that is being proposed here; the issue of transitional
justice does not begin with the Awami League’s rise to power in 2008. Why was a justice
mechanism not implemented immediately after the conflict ended? Why was a mechanism not
implemented throughout the successive forty years succeeding 1971? There is a need to
understand what factors (peace agreements, international and regional actors, political actors, and
political stability) led to the 2009 outcome. To complete this task, this research will look at the
four main political periods in Bangladesh history, more specifically the democratic period (1972
– 1975), the authoritarian period (1977 – 1981), the period of military rule (1982 – 1991), and
the period of resurrected democracy (1991 – 2009).
Why Bangladesh?
Bangladesh was an important case to take into consideration for a number of reasons.
Methodologically, Bangladesh was a most-likely case of predicting delayed justice. George and
Bennett have described most-likely cases as those where “the independent variables in a theory
are at values that strongly posit an outcome or posit an extremely outcome.”181
In other words,
the two of the independent variables (see aforementioned) drawn from transitional justice and
related theory in relation to delayed were present in this case; two were absent. In the period
180
Shahidul Alam, “A 40-Year Quest for Justice,” New York Times (February 28, 2013)
http://www.nytimes.com/2013/03/01/opinion/bangladeshs-40-year-quest-for-justice.html?_r=0 (accessed March 15,
2013).
181
Alexander George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences, 121.
53
during and immediately after the Liberation War, India (a regional actor) played a major role in
the peace process since they, too, had a hand in the conflict between Pakistan and Bangladesh,
were allied with Bangladesh, and were in possession of prisoners of war. There was no formal
peace agreement between Pakistan and Bangladesh, though the Simla Agreement was later
signed in 1973 by India and Pakistan settling the issue of these prisoners. The international
community, however, was not seen as playing a prominent role in the conflict settlement/post-
war period. In the subsequent years following independence, Bangladesh experienced major
political shifts in the balance of power which also brought about shifts in forms of governance
(i.e. democracy, authoritarianism, limited democracy), all of which were brought on by coups’
and counter-coups,’ creating an atmosphere of instability. Finally, the instrumental political
party in opposing the independence movement (i.e. the alleged collaborators) was allied with
ruling party, the Bangladesh National Party (BNP) throughout most of the 1990s and early
2000s, a time when no transitional justice process took place. Bangladesh would appear to be a
most-likely case of legal justice whereby trials were eventually adopted to address past crimes.
However, this mechanism was put off for almost forty years.182
Data Collection
The data collected for this particular research addressed the political process involved on
both the international and regional level in relation to the situation in Bangladesh during and
after the resolution to the 1971 war. It also accounted for shifts in the political balance of power
between various parties, leaders, and governmental systems. Four periods were examined for
this study: (1) the Mujib period of democracy, 1972 – 1975; (2) authoritarian rule under Zia,
1977 – 1981; (3) Ershad’s era of military rule, 1982 – 1991; and (4) the return to democracy
182
Ibid 352-356.
54
1991 – 2009. These periods were used to highlight shifts in the political balance of power in
Bangladesh starting from independence and moving towards the implementation of an
‘international’ tribunal for trying war crimes collaborators from 1971. The research accounted
for the existence of transitional justice mechanisms within any peace agreements related to the
1971 war. It accounted for the involvement of domestic political actors, notably those mentioned
in through each period. It also considered the role played by the United Nations (international
community) and India (regional community) in shaping the transitional justice process in
Bangladesh. Furthermore, it measured the political stability in the country throughout each
period mentioned above.
Data Collections
For this particular research, I analyzed formal (i.e. legal and government publications)
and informal (i.e. newspaper and media publications, etc.) material from Bangladesh which has
been conveniently published by the Indian Ministry of Foreign Affairs covering the period of
pre-independence and independence. Political speeches, legislative documents, news articles
about Bangladesh, and various responses from the local and international community are located
within this compilation titled Bangladesh Documents. The New York Times, The Guardian, and
The Daily Telegraph were included as news sources. Because newspapers served as the primary
means by which the government disseminated information to their citizens and to the rest of the
world, and because newspapers serve to record the series of events that occurred before and
during the war, this particular outlet is of importance to this research. In short, primary sources
were an important element in formulating the history of Bangladesh, most especially of the pre-
independence and immediate post-independence stage.
55
Secondary sources were also essential for supporting these primary sources. There was a
need to analyze both Bengali and Bangladeshi literature that has been written with regards to the
political struggles in the aftermath of independence and with regards to relations with other states
and international organizations. These sources were gathered from scholars like Craig Baxter,
Rounaq Jahan, and Talukder Maniruzzaman, among others, who are well-known historians of
Bangladesh history.183
The Historical Abstracts database served as a good starting point to
collect this type of data as well as the online resources available through the Bangladesh
Genocide Archives at Kean University.
183
Bangladesh: Promise and Performance, ed. by Rounaq Jahan (Dhaka: The University Press Limited, 2001);
Craig Baxter, Bangladesh: From a Nation to a State (United States: Westview Press, 1997); Talukder
Maniruzzaman, The Bangladesh Revolution and its Aftermath (Dhaka: Bangladesh Books International Limited,
1980).
56
CHAPTER 4: THE QUEST FOR JUSTICE
On December 16, 1971, the war in Bangladesh was halted by a unilateral ceasefire
agreement signed by India and the Pakistan Eastern Command. The unconditional surrender of
Pakistan would usher in a new era for Bangladesh as a free and independent state. Under the
leadership of Sheikh Mujibur Rahman (referred to as “Mujib”) – though he would not return
from his imprisonment in Pakistan until January 1972 – Bangladesh would have to vie for its
legitimate place in the international arena. Despite a victorious end to an almost nine month
struggle, the country would face major challenges in its infant years of independence. To begin,
Rahman had to contend with Pakistan’s well-established position in international politics, which
gave it greater prominence among the United Nations and major powers such as the United
States, China, and the Soviet Union. The new leader also needed to draw his state out of India’s
shadows, a regional power who maintained a great deal of control over Bangladesh even after the
war ended. At the same time, Mujib returned to a people hungry for justice. Mujib’s early years
were, therefore, a delicate balancing act between domestic, regional, and international politics.
In this chapter I delineate this balancing act that came to define the initial period of
democracy in Bangladesh. First, I analyze the peace agreements that came about in the aftermath
of 1971 where it becomes obvious how the absence of a transitional justice mechanism had
implications for the absence of the process later on. The focus of this analysis will be on two
agreements: the Simla Agreement of 1972 and the Delhi Accords of 1973. These agreements
failed to address the issue of accountability for war crimes and to include Bangladesh in the
negotiation. The evidence supports my peace agreements hypothesis that predicts implementing
a transitional justice process through a peace agreement will be less likely to result in delayed
justice but, more likely to result in non-legal forms of justice. Without a framework to deal with
57
prisoners of war and collaborators, Bangladesh was under no obligation to complete the trials
and, therefore, when Mujib lost control and was subsequently killed, the potential for transitional
justice fell apart.
Next, I analyze the role played by the international and regional communities. In looking
to the regional community, I focus my attention on India and Pakistan. India’s role is
particularly important because it controlled the prisoner of war situation and was thereby able to
shape the justice process in Bangladesh. To explain this assertion, I highlight the events leading
up to and including March 29, 1972 when India announced it would begin handing over
prisoners of war to Bangladesh for trial based upon prima facie cases. In considering Pakistan’s
role in shaping this justice process, I note the various maneuvers it took during this period to
deter trials, including the detention of Bengali’s in Pakistan, President Bhutto’s offer to try war
criminals in Pakistan, and Pakistan’s recognition of Bangladesh in 1974. These decisions had an
impact on Bangladesh’s desires to continue with the war crimes trials. The evidence supports my
hypothesis regarding the regional community, which posits that greater involvement from the
region in establishing transitional justice processes will be more likely to result in swift, legal
justice. In looking to the international community, I analyze how admittance to the United
Nations impacted the transitional justice processes in Bangladesh. It should also be noted that
this is intertwined with Pakistan’s influence. I argue that the international community had a hand
in shaping post-conflict justice in Bangladesh in disallowing its admittance until war crimes
trials were effectively resolved, a point that shows support for my second hypothesis regarding
involvement on the part of the international community.
Because there is no evidence available to address my third hypothesis – culpability of
decision-makers – I do not analyze the variable in this chapter. Rather, I analyze the absence of
58
transitional justice downfall of Mujib’s government to show the beginnings of political
instability that would overtake the country into the distant future. Here I highlight the events in
the post-1973 election that created an atmosphere of fear induced by the paramilitary powers, the
amended constitution that effectively transferred power solely to Mujib in 1975 and the military
coup of August 15 that ended his life and resulted in rule by martial law. The evidence here will
provide support to my political stability hypothesis by showing the ramifications of instability on
transitional justice which, in this case, resulted in the absence of the process.
In sum, this chapter provides evidence to illustrate that transitional justice is less likely to
be delayed if a justice mechanism is outlined through a peace agreement, if the regional or
international community is involved, and if political stability is present. Furthermore, the
transitional justice process is more likely to take on legal forms – domestic or international
trials/tribunals – if the regional or international community is involved and if political stability is
present. Alternatively, if implemented through a peace agreement, justice will be more likely to
take on non-legal forms – truth commissions, lustrations, days of remembrance, etc.
Historical Overview
When Mujib arrived in Dhaka on January 10, 1972 (nearly three weeks after the
Bangladesh government in exile had returned), one of the major tasks he faced was forming a
new government under a new constitution.184
Bangladesh historian Rounaq Jahan compiles a
laundry list of priority tasks for Mujib to complete in order illustrate the challenges he faced:
“establishing law and order, disarming civilian freedom fighters, rehabilitating refugees,
reconstructing infrastructure, managing industries left by non-Bengali owners, negotiating with
184
After taking charge of the government upon his return to Bangladesh, Mujib issued a Provisional Constitutional
Order which instituted a unitary form of parliamentary democracy. The specifics of the constitution are outlined
concisely by Craig Baxter in his book Bangladesh: From a Nation to a State. See Craig Baxter, Bangladesh: From
a Nation to a State (United States: Westview Press, 1997), 87-88.
59
the international community for recognition and assistance and so on.”185
A weak state structure
with limited capacity would make addressing these issues tumultuous. However, a greater
problem loomed in need of a solution: Bangladesh was a fractured society marred by mass
atrocity. With an estimated one to three million Bengalis killed and hundreds of thousands of
women raped, there arose a call in the country for trying Pakistani prisoners of war (POWs) and
Bengali collaborators for war crimes.186
Even before Mujib had formed his new government, demands arose to try Pakistani
officials and Bengali collaborators. In a New York Times article from December 27, 1971, it was
reported, “More and more, irate Bengalis are demanding that the Indian Army let them try the
former Pakistani leaders of East Pakistan.”187
Additional pressure came from a group of seven
women whose husbands were allegedly kidnapped and killed by the Pakistanis. They held an
emotionally-charged press conference pleading with the Indian Government to try the men
responsible for their husbands’ deaths.188
Some Bengalis took the law into their own hands, as
guerilla militias near the Indian border hunted down and killed ethnic Biharis who were allegedly
“informers for the [Pakistani] Government” during the War for Independence.189
In response to this resounding call for justice, Mujib signed Presidential Order No. 8 on
January 24, 1972, titled the Bangladesh Collaborators (Special Tribunals) Order 1972. The
executive order maintained that those who “individually or as members of organisations directly
185
Rounaq Jahan, Chapter 1 in Bangladesh: Promise and Performance, ed. Rounaq Jahan (Dhaka: The University
Press Limited, 2001), 9.
186
Ibid. Also see Jalal Alamgir, “Bangladesh’s Quest for Political Justice,” Current History (April 2010): 155-156.
187
Fox Butterfield, “India Weighs Bengali Plea to Try Pakistani Officials,” New York Times, December 27, 1971.
188
Ibid.
189
Biharis are a non-Bengali speaking ethnic group who are said to be “a favorite of the Pakistani military regime”
for their staunch hate towards Hindus. See Kasturi Bangan, “Bengalis Hunt Down Biharis, Who Aided Foe,” New
York Times, December 22, 1971.
60
or indirectly, have been collaborators of the Pakistan Armed forces” should be punished in
“accordance with the due process of law.”190
To carry out this process, the order set up “Special
Tribunals” for trying those that participated directly in the hostilities of 1971 and for those who
aided such persons. Shortly after the order was publically issued, it was announced that the
Bangladesh government planned to try over one thousand Pakistanis. In the announcement made
on March 29, 1972, the government expected the trials to begin at the end of the year.191
Peace Agreements
While peace agreements were signed with regards to the issues of 1971, these agreements
did not delineate a plan for instituting post-conflict justice in Bangladesh. In the first agreement
signed between India and Pakistan – the “Agreement of Bilateral Relations Between the
Government of India and the Government of Pakistan” – known as the Simla Agreement of July
2, 1972, the war crimes issue went unaddressed. Instead, the issue was put off until a later date:
“…the representatives of the two sides will meet to discuss further the modalities and
arrangements for the establishment of a durable peace and normalization of relations, including
the question of repatriation of prisoners of war…”192
Without a clearly delineated framework
regarding the prisoners of war and collaborators, Bangladesh would continue to face challenges
in its quest of statehood.
In April 1973, over a year after Pakistan unconditionally surrendered to the Indo-
Bangladesh joint command, India and Bangladesh offered a plan of political settlement with the
190
“Collaborator” is defined using five criteria: (1) a person who aided or abetted the occupying Pakistani forces; (2)
those who gave material assistance to this occupation; (3) those who waged war in Bangladesh; (4) those who
actively resisted the liberation struggle; and (5) those who are associated in any way (by organization or affiliation)
with furthering the occupation of Bangladesh. See Presidential Order no. 8, Bangladesh Collaborators (Special
Tribunals) Order, 1972, p. 1 (1972).
191
“Bangladesh Will Try 1,100 Pakistanis,” New York Times, March 30, 1972.
192
“Simla Agreement,” July 2, 1972, Ministry of External Affairs, Government of India, pt. 6.
61
Pakistanis. The two governments conferred for four days and developed a plan that called for
repatriation of prisoners in India, Bangladesh, and Pakistan. “The three-way exchange would
involve most of the 90,000 Pakistani prisoners and civilians held in Indian as well as the 175,000
to 200,000 Bengalis in Pakistan and about 260,000 non-Bengalis in Bangladesh.”193
The
announcement signaled a clear shift in Bangladesh policy; they became more flexible on the
issue of prisoners of war. The plan was more than likely initiated because of the embarrassment
India faced from the POW issue that had remained deadlocked for nearly a year and a half.194
Bangladesh had started to lose support from its greatest ally which had further consequences for
transitional justice.
Despite the major step this plan took towards settling some of the major issues between
the countries, it left one of the most contentious issues – war crimes trials – unaddressed. In fact,
repatriation only applied to those prisoners who were not being held for future prosecution of
war crimes. Leaving this lynchpin issue out the settlement could only make the situation worse.
As news reports illustrated, “With Bangladesh committed to war-crimes trials…it was uncertain
how the Pakistani Government would react to any possible agreement with India and Bangladesh
as long as criminal trials were publically held.”195
In a press release the day following the
announcement, Pakistan responded positively to the proposal while simultaneously noting that
they still carried concerns over the war crimes trials. Without a framework for dealing with the
prisoners of war, relations between Bangladesh and Pakistan were stalemated.
193
Bernard Weinraub, “India and Bangladesh Offer Plan for End of Deadlock on Prisoners,” New York Times (April
18, 1973).
194
Ibid. Also see Bureau of Intelligence and Research, “South Asia: a Look Ahead” (July 11, 1973), by George C.
Denney, Jr. in American Papers: Secret and Confidential India-Pakistan-Bangladesh Documents 1965-1973, 965-
966.
195
Ibid.
62
Pakistan, despite agreeing in principle to the proposed settlement, was uneasy about
accepting any plan that did not include the release of the 195 prisoners on trial for war crimes in
Bangladesh. In a May 29 statement, President Bhutto made clear that if Bangladesh went ahead
with the war crimes trials, Bengalis being held in Pakistan would also be subjected to tribunals:
“We have no other alternative…We cannot stomach or consent to trials of prisoners of war in
Bangladesh. It would cause revulsion here and we have to react accordingly;” the tit-for-tat
strategy persisted.196
Bhutto blamed Mujib for the plight of Bengalis in Pakistan who, at the time
of his statement, were already being arrested for treason. He said, “It is now purely up to
Mujibur Rahman. He is the crucial one. If he proceeds on his mad venture, it will be the single
biggest cause of instability on the subcontinent.”197
Without addressing these major issues, the
joint initiative did not get to the heart of the problems between the countries. This did not stop
India and Pakistan from signing the Dehli Accords on August 28, 1973, however. The two states
agreed on a framework for the repatriation of POWs after two months of negotiations. It would
be the fulfillment of point six in the Simla Agreement, which dealt with the repatriation of
prisoners of war as outlined in the Geneva Convention of 1949.198
Bangladesh, however, was
left out of the agreement as were the 200 Bangladeshis who had been arrested in Pakistan – a
move showing Bhutto’s earlier remarks were not empty threats.
Meanwhile, Mujib continued with his plan to prosecute the nearly 200 alleged war
criminals being held in Bangladesh. To begin, Bangladesh amended its constitution to further
196
Quoted in Bernard Weinraub, “Bhutto Threatens to Try Bengalis Held in Pakistan,” New York Times (May 29,
1973).
197
Quoted in ibid. Bhutto also argued that trials would anger the Pakistani population who were already upset by
the situation. Doing so would lead to an overthrow of the political leadership stating his government had already
arrested military officials for attempting to do so. The trials, therefore, had further reach implications according to
Bhutto who also viewed them as a domestic security issue. See Ibid.
198
“Text of the Accord Concluded in Delhi Talks,” The Times (August 29, 1973). This article also contains the text
of the accord. Also see “Prisoners Can Finally Go Home,” New York Times (September 2, 1973).
63
ease the process of holding war crimes trials. The amendment withdrew constitutional rights
from any persons that were suspected of violating international criminal laws. Article 47(3) of
the new amendment read:
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 defense 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.199
Because international crimes – such as genocide, war crimes, and crimes against humanity –
were not covered in the provisions of the previous constitution with regards to criminal
procedure, the Government of Bangladesh needed to infuse them under international law to
prosecute crimes that arose out of the 1971 war. The Government also announced the
implementation of the International Crimes (Tribunals) Act 1973 as an amended version of that
from 1972. This Act provided for the prosecution, trial, and detention under international law of
persons alleged to have committed war crimes, crimes against humanity, and genocide.200
“The
overall effect of these measures,” states a London-based judicial advocacy group, “was to put
persons questioned, detained, suspected of committing crimes, or charged with crimes within the
International Crimes (Tribunal) Act 1973 outside the norms of the national legal system.”201
Bangladesh appeared to be extending the scope of the trials to prosecute under international law
which had not previously been outlined in their procedures of common criminal law.202
As a
199
People’s Republic of Bangladesh Constitution, amen. 47, sec. 3.
200
Government of the People’s Republic of Bangladesh, International Crimes (Tribunals) Act 1973, no. XIX (July
20, 1973).
201
Steven Kay QC, “Bangladesh its Constitution and the International Crimes (Tribunals) (Amendment) Act 2009,”
(lecture, Bangladesh Supreme Court Bar Association Human Rights Conference, Dhaka, October 13, 2010).
202
While this will be discussed later on, it is important to note that this particular act is still applicable today.
64
result, around 37,000 people were jailed and branded as ‘war criminals’ and more than 700 were
subsequently convicted.203
Responding to Bangladesh’s clear desire to continue with
prosecuting the Pakistani officials, Pakistan issued a statement rejecting “the right of the
authorities in Dacca to try any among the prisoners of war on criminal charges.”204
In short, the
absence of a legal framework to deal with the war crimes issue prevented Bangladesh and
Pakistan from coming to a political settlement on the issue and only served to exacerbate the
contentious relationship.
In each of the agreements signed in this period – Simla and Delhi – the war crimes issues
were not discussed. Not only did this leave the major issues unaddressed, it allowed Bangladesh
to continue with the process of trying POWs and collaborators. In the end however, leaving this
unaddressed was detrimental to the entire transitional justice process. Without a framework for
dealing with atrocities of 1971, Bangladesh did not have a binding set of principles for
maintaining the trials which would eventually result in their delay. A framework or binding
agreement would have allowed Bangladesh to continue with the trials even after losing support
from India and failing to gain legitimacy from the international community. This will especially
hold true when Mujib’s administration is overthrown and with it, the war crimes trials. The
above information, therefore, supports my hypothesis regarding peace agreements, which
suggests that the likelihood of delayed justice is reduced if the process is established through a
peace agreement and also, that trials will be the more likely course of action. Leaving the
transitional justice issue out of the peace agreements mentioned above, in part, explains the
eventually delay of justice and the type of mechanism implemented
203
Haroon Habib, “Unfinished Tasks in Bangladesh,” The Hindu (May 5, 2010), available at
http://www.thehindu.com/opinion/lead/article422672.ece.
204
S.M. Burke, “The Postwar Diplomacy of the Indo-Pakistan War of 1971,” 1040.
65
The International and Regional Community
India: the Caretaker
Carrying out war crimes trials was highly dependent upon support from India. Not only
did India provide Bangladesh with the much needed institutional capacity to carry out such trials,
its support was a practical necessity because India possessed the prisoners of war Bangladesh
desired to prosecute. Without India’s support and participation, the trials in Bangladesh would
have been directly undermined. To illustrate, when the decision was made to prosecute war
criminals in 1972, India concurrently agreed to turn over those Pakistani prisoners “against
whom Bangladesh present[ed] a prima facie cases of atrocities.”205
The trials would prosecute
high-ranking officials such as Lieutenant General A.A.K. Niazi – former Pakistani military
commander in East Pakistan – and Major General Rao Farman Ali Khan – Niazi’s second in
command. The report of the announcement stated that “Bangladesh feels that war crimes trials
are necessary to assuage the passion for revenge among the Bengalis.”206
In response, then-
Pakistani President, Zulfikar Ali Bhutto, accused both India and Bangladesh of using the
political prisoners “as blackmail to win concessions from Pakistan at eventual peace talks,”
further stating that “if Bangladesh put Pakistani soldiers on trial for war crimes, ‘then I am afraid
we would be reaching the point of no return.’”207
In a letter to then-U.S. President Richard
Nixon, President Bhutto reiterated this stating,
If the ‘Bangla Desh’ authorities went forward with these trials they would indeed
have very serious repercussions in Pakistan. There are over 400,000 Bengalis in
West Pakistan. We have so far succeeded in ensuring that they are not maltreated
in any way. But if the projected trials took place, they would generate such
205
Prima facie meaning at first glance. “News Summary and Index: the Major Events of the Day,” New York Times,
March 18, 1972.
206
“Bangladesh will try 1,100 Pakistanis.”
207
Ibid.
66
bitterness and resentment among our people that irreparable damage might be
done to the prospects of establishing normal relations with India and ‘Bangla
Desh.’208
India, alternatively, stated that they would not discuss the repatriation of POWs until Pakistan
officially recognized Bangladesh. Furthermore, because the prisoners surrendered to the India-
Bangladesh joint command, they could not be released without the expressed consent of
Bangladesh.209
Less than three months later, in mid-June, India agreed to deliver 150 Pakistani
prisoners to Bangladesh in fulfillment of their March commitment.210
The battle, however, was
only half-won.
Not only does this delineate how the transitional justice process began in Bangladesh, it
illustrates the extent of India’s involvement in propelling such a process forward. While
Bangladesh was fervent in their call for trials, instituting such trials required the consent and
support of India who possessed most, if not all, the POWs Bangladesh wanted to charge. India
wielded a majority of power in this regard: it could withhold the prisoners and undermine the
war crimes trials, or it could hand over the POWs to Bengali authorities thereby lending strength
to the trials. This is important for understanding the link between regional actors and the
implementation of justice in the aftermath of mass atrocities. In this case, the call for justice was
a Bengali one, while implementing any mechanism for justice was highly contingent on India.
Furthermore, through India’s direct involvement in the process, Bangladesh was able to
implement transitional justice, through trials, almost immediately following the end of the
208
Zulfikar Ali Bhutto to Richard Nixon, Rawalpindi, April 15, 1972, in The American Papers: Secret and
Confidential India-Pakistan-Bangladesh Documents 1965-1973, compiled by Roedad Khan (England: Oxford
University Press, 1999), 842.
209
S.M. Burke, “The Post-war Diplomacy of the Indo-Pakistani War of 1971,” Asian Survey, vol. 13, no. 11
(November 1973): 1037 and United Nations, Security Council, Letter Dated 20 August from the Representative of
Pakistan to the President of the Security Council, S/10766 (21 August 1972), available from undocs.org/s/10766.
210
“India to Deliver 150 P.O.W.’s to Bangladesh to Face Trial,” New York Times, June 15, 1972.
67
Liberation War. Therefore, the evidence showing India’s role as a major regional actor, lends
support to my regional community involvement hypothesis, which predicts that more
involvement from regional actors in transitional justice processes (i.e. development and
implementation) is less likely to result in a delay of such processes and is more likely to result in
the implementation of legal forms of justice.
Pakistan: Bangladesh’s Enemy
India was only one regional actor included in the post-conflict stage. Pakistan, too,
shaped the transitional justice process in Bangladesh through a carrots and sticks policy. In one
incident, Pakistan had begun detaining Bengalis within its borders by December 1972 in an
attempt to sway Mujib on the war crimes issue. A news report from December 12 quoted an
official from the International Rescue Committee (IRC) who stated, “There were more than
2,000 Bengalis in jail in Pakistan without charge and have ‘none of the normal rights of
prisoners.’”211
The IRC official went on to state, “The Bengalis in Pakistan are suffering.
Harassment and discrimination have become part of everyday life.”212
The Bengalis were
arrested for allegedly attempting to leave Pakistan, and were refused release unless India released
the over 90,000 Pakistani prisoners of war. India responded saying it would only return
prisoners of war with the consent of Bangladesh – who would not approve unless Pakistan
recognized their country. In a telegram from the U.S. Ambassador in Islamabad to the U.S.
Secretary of State, the Ambassador stated, “From Bhutto’s standpoint, hazard in recognizing
Bangladesh centers primarily in threat of war crimes trials…Massive war crimes trials in Dacca
shortly after he accorded recognition would be a severe blow to Bhutto’s position and he is
211
“Official Reports 2,000 Bengalis Held in Pakistani Jails,” New York Times (December 13, 1972).
212
Quoted in ibid.
68
determined to avoid this danger.”213
Therefore, without assurances that the war crimes trials
would be dropped, Pakistan was not in a position to recognize Bangladesh.
The debacle would continue well into 1973 and 1974 until Bhutto shifted the dynamics
with an unprecedented offer to try the 195 prisoners charged with offenses. They would not be
freed without charge, but would rather be transferred to the judicial system in Pakistan. This was
more than an offer on the part of Pakistanis, it was also a warning according to Burke who
writes, “The statement warned that if the authorities in Dacca proceeded to hold the threatened
trials, it would become impossible for the Government of Pakistan to refrain any longer from
‘bringing to trial those Bengalis in Pakistan against whom there is evidence of the commission of
such acts as subversion, espionage and high treason.”214
Should Mujib accept, the 200 Bengali
prisoners in Pakistan would be repatriated in exchange for the 195 Pakistani prisoners located in
Bangladesh.
When considering the offer, Mujib had a great deal to weigh. Internationally, he was
pressured to back down from prosecuting the prisoners, especially from Bangladesh’s caretaker,
India, who had agreed to return the remaining Pakistani POWs. Domestically, however, Mujib
faced contradictory pressures. Bangladesh was not as unified as it had once been prior to the
War for Independence. By 1973, various factions existed in both the political and societal
realms, each with their own vision for the future of the country. Some called for socialism, other
groups worked to raise awareness of those marginalized in society, and there were those who
remained staunch supporters of instituting transitional justice while their opponents wanted a
213
Ambassador Islamabad to Secretary of State, Islamabad, “Confidential 421.”
214
S.M. Burke, “The Postwar Diplomacy of the Indo-Pakistan War of 1971,” 1040.
69
return to peace.215
“Faced with these contradictory pressures,” Jahan states, “Sheikh Mujib had
to do a tight balancing act.”216
This was combined with the uncertain fate of the over 400,000
Bengalis in Pakistan.217
On February 22, 1974, Bhutto added yet another piece for Mujib to consider. In an
unprecedented move, the Government of Pakistan declared its recognition of the People’s
Republic of Bangladesh, a precondition for Mujib to start discussing the issue of alleged war
criminals. President Bhutto proclaimed in front of the National Assembly, “In the name of God
and on behalf of the peoples of this country, I declare that we are recognizing Bangladesh.”218
Two elements are important to note with regards to this diplomatic maneuver. First, it was a
significant move to show the solidarity among the Islamic world. Reports of the announcement
even speculated that the decision “came after months of strong pressure on both nations from
such Moslem countries as Egypt, Indonesia, and Saudi Arabia which sought to heal this major
breach in the Islamic world.”219
Second, and more importantly, it effectively made Mujib’s
precondition null and void; it gave him less of a platform to build his case against repatriation.
Following this pattern, Mujib accepted Pakistan’s proposal in spring 1974 and withdrew
his demands for trials for the prisoners of war – not the local collaborators who had already been
convicted. On March 24, repatriation was completed for the final group of 206 Bengalis living
215
Rounaq Jahan, “Bangladesh: Promise and Performace,” 10.
216
Ibid.
217
Other domestic issues were also burdening Bangladesh at the time. Though they are not pertinent to this
discussion, it is important to highlight them here. Craig Baxter states, “After the election [in March 1973] the
economic and security situation began to deteriorate rapidly, and Mujib’s popularity, shaken by what many viewed
as too close an alliance with India, declined as well. Mujib had displayed a paternalistic and authoritarian
personality; his references to ‘my country’ and ‘my people’ were wearing thin. Widespread flooding and ensuing
famine in 1974 created a severe hardship, aggravated by the growing problems in maintaining law and order.” See
Craig Baxter, Bangladesh: From a Nation to a State, 91.
218
Quoted in Tribune Wire Services, “Pakistan Recognizes Bangladesh,” Chicago Tribune (February 23, 1974).
219
Ibid.
70
in Pakistan.220
Bangladesh solidified its position on April 9 with the signing of the Tripartite
Agreement among Bangladesh, India, and Pakistan. With regards to the 195 prisoners of war,
the agreement stated,
The question of 195 Pakistani prisoners of war was discussed by the three
Ministers, in the context of the earnest desire of the Governments for
reconciliation, peace and friendship in the sub-continent. The Foreign Minister of
Bangladesh stated that the excesses and manifold crimes committed by these
prisoners of war constituted according to the relevant provisions of the U.N
General Assembly Resolutions and International Law, war crimes, crimes against
humanity and genocide, and that there was universal consensus that persons
charged with such crimes as the 195 Pakistani prisoners of war should be held to
account and subjected to the dues process of Law. The Minister of State for
Defense and Foreign Affairs of the Government of Pakistan said that his
Government condemned and deeply regretted any crimes that may have been
committed.221
This reaffirmed the offer already made to Bangladesh from Pakistan with regards to this issue,
cementing it in an official document. Furthermore, the Government of Bangladesh agreed to
forgo trials “as an act of clemency;” the prisoners would be repatriated along with the others who
were already in the process.222
Overall, the agreement called for a ‘forgive and forget’ policy in
the interests of peace and security in the subcontinent.
Shortly after signing the agreement, Pakistan issued an official apology to Bangladesh for
the violence of the 1971 war.223
Mujib had, therefore, made concessions on war crimes in return
for normalization with Pakistan and, arguably, for the maintenance of their relationship with
India. Pakistan, another major regional player, had forced Mujib’s hand on the war crimes issue
by giving into his demands. Therefore, the regional community was heavily involved in the
220
“Repatriation is Completed for Bangladesh Nationals,” New York Times (March 25, 1974).
221
“Tripartite Agreement Between India, Bangladesh and Pakistan for Normalization of Relations in the Sub-
continent,” April 9, 1974, New Dehli, pt. 13.
222
Ibid pt. 14.
223
Bernard Weinraub, “Pakistan Offers Apology to Bangladesh,” New York Times (April 11, 1974).
71
aftermath of the Liberation War, a fact that, in part, explains both the institution and eventual
delay of the transitional justice process thereby lending support to my hypothesis regarding
involvement from the regional community.
The International Community
The role of the international community is much intertwined with that of Pakistan
because it was through the UN that Pakistan worked against Bangladesh’s attempts to implement
justice. The involvement of the international community, therefore, contributed to the absence
and delay of justice in Bangladesh. For instance, three days before Bangladesh’s application for
UN membership was brought before the Security Council, Pakistan’s representive presented a
case before the Council arguing that both India and Bangladesh had not abided by the principles
of international law regarding POWs, citing the third Geneva Convention of 1949 as evidence.
He stated that the failure to release Pakistani prisoners of war immediately after the cessation of
hostilities was contrary to the provisions set out at Geneva and that “such an attitude speaks
poorly of the willingness of ‘Bangladesh’ authorities to the live up to the principles of the United
Nations Charter and fulfill the obligations arising therefrom.”224
The Pakistani representative
went on to cite the first obligation arising from the Security Council, namely that measures that
should be taken to preserve human life. With regards to Bangladesh, he stated, “On the contrary,
Biharis and Bengalis who had refused to rebel against the Government of Pakistan in 1971 have,
for that reason, been charged as ‘collaborators’ and have since been subjected to sustained
224
United Nations, Security Council, Letter Dated 20 August from the Representative of Pakistan to the President of
the Security Council, S/10766.
72
persecution.”225
Therefore, he contended, Bangladesh should not be admitted to the UN. When
the draft resolution came to a vote on August 23, the People’s Republic of China vetoed the
application, blocking Bangladesh from attaining membership to the international body.226
Bhutto later confirmed that Pakistan had formally asked China to veto the resolution.227
Pakistan, in short, was able to wield its influence among major international players to stop
Bangladesh from gaining ground on the international front. On June 10, 1974 however, shortly
after the POW agreement was signed between Pakistan and Bangladesh, the People’s Republic
of Bangladesh was granted admittance in the UN, one step further towards solidifying its place
as a legitimate member of the international community.228
Admittance to the UN would be off-limits until Bangladesh agreed to drop the POW
issue; China would veto the votes until then. This would not happen until 1974 when the
Tripartite Agreement between Bangladesh, India and Pakistan was signed. Only then would
Bangladesh be granted admittance. It is clear from this example that the international
community was involved in the shaping the justice issue in Bangladesh, albeit indirectly.
Without UN admittance, Bangladesh could not take its place in the international fora. Conscious
of this fact, Pakistan wielded its influence with China to block Bangladesh’s membership. In
225
Ibid. For reports on the treatment of Biharis in Bangladesh in the aftermath of December 1971, see Peter
Hazelhurst, “Hundreds of non-Bengalis slaughtered in Bangladesh,” The Times (May 8, 1972) and David Ennals,
“The Plight of the Biharis in Bangladesh,” The Times (May 11, 1972).
226
United Nations, Security Council, India, Union of Soviet Socialists Republics, United Kingdom of Great Britain
and Northern Ireland and Yugoslavia: Draft Resolution, S/10771 (August 23, 1972), available from
undocs.org/S/10771.
227
Weekly Commentary and News Digest, November 24, 1972 cited in S.M. Burke, “The Post-War Diplomacy of
the Indo-Pakistani War of 1971,”1039. His success at blocking Bangladesh membership is also noted in
confidential telegram to the Secretary of State from the U.S. Ambassador in Islamabad. See Ambassador Islamabad
to Secretary of State, Islamabad, “Confidential 421,” in The American Papers: Secret and Confidential India-
Pakistan-Bangladesh Documents 1965-1973 (England: Oxford University Press, 1999), 874.
228
Security Council Resolution 351, New Member: Bangladesh S/RES/351 (June 10, 1974), available from
undocs.org/S/RES/351.
73
preventing this, Pakistan, through the UN, was eventually able to force Bangladesh’s hand on the
issue. Therefore, the international community’s indirect involvement was a major factor in
shaping the transitional justice issue; UN admittance was used as an incentive for Bangladesh to
drop the POW issue.
Political Instability Takes Root
Bangladesh was unable to consolidate democracy under Mujib which resulted in the
beginnings of what would be its characteristic instability. This instability not only had effects on
the political realm, it was also a major factor to consider in the absence of a transitional justice
process. Before President Bhutto had announced his proposal to solve the POW problem and
even prior to the passage of the International Crimes (Tribunals) Act 1973, Bangladesh, under
the direction of Mujib, had already began loosening its grip on trying the local collaborators,
which in effect frustrated the development of the war crimes trials. For instance, in February
1973 the Bangladesh National Liberation Struggle (Indemnity) Order was signed into law,
granting amnesty to those claiming to be Freedom Fighters whose acts during 1971 were
committed in pursuit of the liberation struggle.229
The following November, clemency was
issued for those charged with “petty offenses” under the Act which resulted in 26,000 people
being released, leaving another 11,000 to face trial (recall that 37,000 were arrested after the
passage of the Act).230
229
Caitlin Reiger, “Fighting Past Impunity in Bangladesh: A National Tribunal for the Crimes of 1971,”
International Center for Transitional Justice (July 2010), 3-4.
230
Ibid 4.
74
The Downfall of Sheikh Mujib’s Democracy
Mujib’s downfall began after the 1973 parliamentary elections when the Awami League
won in a landslide victory, capturing 291 out of 300 seats.231
Jahan stated, “The Awami League
was plunged in a deep schism between militant youth leaders…calling for the establishment of a
revolutionary government under Sheikh Mujib, and other moderate leaders urging the
continuation of a parliamentary democratic rule.”232
The government under the Awami League,
therefore, was no longer the united front it had once appeared to be prior to independence. This
was combined with accusations that the paramilitary force consecrated by Mujib – Rakkhi Bahini
– had assumed responsibility for ridding Bangladesh of Mujib’s political adversaries, creating a
climate of fear. It has been claimed that these forces would carry out night raids against those
who posed a threat to the Awami League.233
With economic distress and a deteriorated system
of law and order, Mujib declared a state of emergency on December 28, 1974, “giving him
personal power to order arrests and to limit the independence of the judiciary and the freedom of
the press.”234
It appeared that he was considering what the youth leaders were calling for.
In January 1975, Mujib concluded his reformation when the Constitution was amended
providing “for a one party presidential form of government with restrictions on freedom of the
press and the judiciary. Sheikh Mujib became President and launched what he termed his
231
Rounaq Jahan, “Bangladesh: Promise and Performance,” 11. There appears to be a lack of consensus on what the
exact number of seats won actually was. Craig Baxter has stated that the Awami League won 292 out of 300 (Craig
Baxter, Bangladesh: From a Nation to a State, 91) whereas Lawrence Ziring has argued that the AL won 307 seats
out of an available 315 (Lawrence Ziring, Bangladesh: From Mujib to Ershad, An Interpretive Study [England:
Oxford University Press, 1992], 96). Rounaq Jahan’s figures are more consistent with the election results.
232
Ibid. The group of students was called Rakkhi Bahini and was considered a paramilitary force “composed of
Awami League loyalists” and was established for the purposes of internal security. The force was under the
direction of Mujib’s nephew Sheikh Fazlul Huq Moni. See ibid 10-11.
233
Lawrence Ziring, Bangladesh: From Mujib to Ershad, An Interpretative Study, 98.
234
Craig Baxter, Bangladesh: From a Nation to a State, 91.
75
‘second revolution,’ in effective giving him full executive powers.”235
As a result of the
amendment, all opposition parties were banned and civil servants were required to join the newly
christened Bangladesh Krishak Sramik Awami League (BAKSAL) party. Constitutionally
guarded fundamental rights ceased, giving Bangladesh the appearance of a dictatorship.236
This
move alienated and infuriated the armed forces who were skeptical of the newly created one
party dominated state prompting many high-ranking officers to resign their posts in protest.
Therefore, it came as no surprise when, on August 15, 1975, Mujib and members of his
family were killed in a coup “engineered by a group of army officers, mostly majors, some of
whom Mujib had dropped from the army almost a year earlier.”237
The junior officers made
Khonodoker Mushtaq Ahmed president – a pro-Awami Leaguer – and martial law was instituted
while constitutional rights and parliament remained intact. Because political support for the new
regime was a high priority, Ahmed freed some political prisoners who belonged to the Jamaat-e-
Islami, the premier Islamist party, and those belonging to the National Awami Party of Maulana
Bhashani, the pro-communist (and pro-China) party of Bangladesh.238
Shortly after taking
power, Ahmed issued the infamous Indemnity Ordinance, 1975 restricting any legal action from
being taken against those accused of killing Mujib and his family.239
The alleged murders would
enjoy amnesty for the next thirty years. Additionally, Ahmed banned Mujib’s Awami League,
235
Rounaq Jahan, “Bangladesh: Promise and Performance,” 12.
236
Craig Baxter, Bangladesh: From a Nation to a State, 92.
237
Ibid. Two of Mujib’s daughters were not killed because they were in India at the time. One of them is Sheikh
Hasina Wajid, current Prime Minister of Bangladesh.
238
Rounaq Jahan, “Bangladesh: Promise and Performance,” 14.
239
“The Indemnity Ordinance, 1975,” The Bangladesh Gazette (September 26, 1975).
76
which had become the only political party in Bangladesh for a short time.240
A new era was in
store for Bangladesh, though it would not be a smooth transition. The period of ‘mujibism’ and
democratic rule had come to an end. The aforementioned material shows how Mujib’s failure to
consolidate democracy and bring peace and stability to Bangladesh had resulted in the downfall
of his regime and the eventual downfall of the war crimes trials. This assertion lends support to
my political stability hypothesis, which predicts that justice will be delayed if there is an
environment of political instability. In this case, the downfall of transitional justice would be the
beginning of delayed justice.
Conclusion
In the aftermath of the War for Independence in 1971, Bangladesh, under the direction of
Sheikh Mujib Rahman, pursued a transitional justice process aimed at prosecuting Pakistani
prisoners of war and Bengali collaborators. These war crimes trials became one of the main
issues of contention between the new state (staunchly supported by India) and Pakistan. While
subsequent peace agreements would be signed – first between India and Pakistan and then
between all three states – the accountability issue remained unaddressed. Without a binding
agreement on the transitional justice process, there was a higher likelihood that any sort of
accountability mechanism would not come to fruition. This is what occurred in the case of
Bangladesh. It also contributed to the type of mechanism employed – recall, post-conflict states
that infuse transitional justice into a peace agreement are more likely to implement non-legal
justice mechanisms. If justice was outlined in a peace accord, it would have been an unlikely
occurrence for Pakistan to have conceded its prisoners of war in exchange for peace. Therefore,
240
“Sheikh Mujib’s Single Party is Banned,” New York Times (August 31, 1975).
77
the absence of a transitional justice framework in both the Simla and Delhi Agreements explain,
in part, the instance of delayed, legal justice in Bangladesh.
Another factor to consider during this period is the involvement of regional and
international actors. While the international community did not play a prominent role in the
peacebuilding processes in Bangladesh, regional actors did. Relations between India and
Bangladesh were easily confused as a result of the War for Independence becoming the Indo-
Pakistan War. What is clear, however, is the arguable control India wielded with regards to war
crimes trials. Initially, India’s willingness to hand over some POWs to Bangladesh for
prosecution lent support and legitimacy to such a process. At the same time, without India’s
willingness to release these prisoners, Bangladesh’s desire to prosecute for war crimes would
have been undermined; this support was crucial for the implementation of this transitional justice
process. The Delhi Agreement indicated India’s weaning support for the trials, arguably for
diplomatic reasons. With support from their closest ally diminishing, Bangladesh’s policy
towards prosecuting the POWs began unraveling until it fell apart completely. Hence, regional
community involvement initially contributed to a swift implementation of a transitional justice
process employing legal justice mechanisms; however, with the loss of support also came the
unraveling of the process, contributing to a delay in transitional justice. The evidence, therefore,
supports my hypothesis regarding regional community involvement and the timing and type of
transitional justice implementation.
No evidence was found to support or refute the third hypothesis with regard to culpability
on the part of the decision-makers; therefore, this variable was not addressed in the examination
of this period. The political instability variable, then, is the final consideration of Mujib’s
administration. His inability to consolidate peace in the new state and to institute democracy was
78
not a favorable environment to institute post-conflict justice. Weak institutional capacity
combined with a lack of regional or international support exacerbated this already unstable
environment. Political instability, therefore, contributed to the downfall and eventually delay in
implementing transitional justice mechanisms through the weak institutions and societal
upheaval it perpetuated.
In sum, this chapter provides evidence to support my argument that transitional justice is
more likely to be delayed if a mechanism is not outlined through a peace agreement, if the
regional or international community is not involved and if there is a lack of political stability.
Furthermore, the transitional justice process is more likely to take on legal forms – domestic or
international trials/tribunals – if the regional or international community is involved and if
political stability is present. Alternatively, if implemented through a peace agreement, justice
will be more likely to take on non-legal forms – truth commissions, lustrations, days of
remembrance, etc.
79
CHAPTER 5: THE BEGINNINGS OF MILITARY RULE
A November 6, 1975 coup brought Major General Ziaur Rahman (referred to “Zia”) – a
member of the resistance movement during the Liberation War – to power in what would be the
beginning of Bangladesh’s period of military rule. In this chapter I analyze the effect political
instability had on the transitional justice process in Bangladesh. I examine the shifting policy
towards the war crimes trials that was manifest in the Bangladesh Collaborators (Special
Tribunals)(Repeal) Ordinance in 1975. I also demonstrate how national priorities changed as a
result of this major shift in the balance of power from Mujib to Zia as exemplified through Zia’s
19-point program. Lastly, I examine the resistance to Zia’s regime that surfaced through an
attempted coup in October 1978 and climaxed with Zia’s assassination in 1981. Through this, I
show how political instability affected the transitional justice process, supporting my hypothesis
that such instability is more likely to result in delayed, non-legal justice.
I also examine the involvement of the international and regional community. It will
become clear that relations with India suffered and that, under Zia, Bangladesh improved its
relations with other neighbors like Pakistan. Connecting this reversal in relations was difficult
due to a lack of primary source documentation available from this period. Because of this lack
of evidence, I conclude that involvement was minimal and had no bearing on the transitional
justice process. An analysis of the first hypothesis – implementation through peace agreements –
and the third hypothesis – culpability on the part of the decision-makers – is omitted from this
chapter because there was no evidence found to support or refute the claims made with regards to
both variables.
80
Historical Overview
Zia would rule from “behind-the-scenes” for almost a year, first as a Deputy Martial Law
Administrator and then as the Chief Martial Law Administrator, before finally assuming the
presidency in April 1977; Chief Justice Abu Sadat Muhammad Sayem would retain the
presidency until then. 241
Almost immediately Zia promised to restore democracy in Bangladesh.
In a December 1975 speech he stated, “Ours is a completely nonparty and nonpolitical
Government, and the armed forces are absolutely neutral. Our aim is to re-establish democracy
in the country through free and fair elections.”242
To accomplish this, he became “preoccupied”
with restoring order, most especially among the military and other paramilitary groups including
the pro-Mujib Rakkhi Bahini. 243
Jahan stated that Zia “took measures to redress some of the
grievances of the soldiers that led to the mutiny. [He] integrated the Rakkhi Bahini with the
military bringing it under the military’s chain of command [and also] accommodated the
repatriated officers from Pakistan…”244
His immediate goals, therefore, revolved around
strengthening the military apparatus in Bangladesh and establishing a functioning security
structure. At the same time, Zia attempted to strengthen the civil bureaucracy which, he claimed,
was an attempt to return to democracy. Adding nonpolitical civilian members to his Council of
Advisors to assist in governing with Sayem are evidence of this effort.245
By the end of 1975,
241
During the time between the counter-coup and assumption of the presidency, Zia was considered to be the
strongman in charge of all operations in Bangladesh. This was despite the fact that Sayem was officially the
president. Ibid 15-16.
242
As quoted in William Borders, “Bangladesh Recovers Calm after Political Upheaval,” New York Times
(December 7, 1975).
243
Ibid 16.
244
Ibid.
245
William Borders, “Bangladesh Recovers Calm after Political Upheaval.”
81
Zia promised a full restoration of democracy and a complete return to a civilian government
within 14 months.246
Eventually Zia ascended to the presidency when, on April 21, 1977, President Sayem
announced his resignation due to ill health.247
Elections were not held until June of the following
year. Zia stood as the candidate for the Bangladesh National Party (BNP), which he founded and
the opposition was led by General Osmany.248
Zia won in a landslide victory over Osmany, 76.3
percent to 21.7 percent.249
Parliamentary elections were held the following February (1979) and
resulted in an overwhelming BNP victory – 207 seats were won out of 300.250
With a new
president and parliament in place, martial law was lifted for the first time in almost four years.
The victory, however, was short-lived and Zia was assassinated on May 30, 1981. 251
Political Instability: The Downfall of Justice and a Changed Agenda
Repealing the Special Tribunals
When Zia came to power, he did so in the midst of instability as exemplified through the
coup and counter-coup movement, a point reiterated by one Bengali official: “The trouble with a
246
William Borders, “Bangladesh’s Drive for Progress: 4 Long Years on a Treadmill.”
247
“World News Briefs: Bangladesh Leader Quits, Gives His Post to General,” New York Times (April 22, 1977).
248
“Presidential Elections of 1978 and 1981, Percentage of Votes by Subdivision,” found in Craig Baxter,
Bangladesh: From a Nation to a State, 99. Zia’s party took on “various incarnations” over 1978. First, it was the
Jatiayatabadi Gonotantrik Dal (JAGODAL) in February, then it became a nationalist front and finally, in September
it took on the name of the BNP which has stuck with the party since. See Rounaq Jahan, “Bangladesh: From
Promise to Performance,” 17.
249
“Presidential Elections of 1978 and 1981, Percentage of Votes by Subdivision,” found in Craig Baxter,
Bangladesh: From a Nation to a State, 99.
250
“1979 Parliamentary Elections,” found in Craig Baxter, Bangladesh: From a Nation to a State, 101. Also see
James Sterba, “Bangladesh Holding Elections to End Martial Law,” New York Times (February 18, 1979).
251
Craig Baxter, Bangladesh: From a Nation to a State, 103. Also see Les Ledbetter, “Bangladesh Reports Death of
President Ziaur Rahman,” New York Times (May 30, 1981).
82
military coup d’état is that once you start, it’s hard to stop.”252
Concurring with this, a New York
Times article reported, “Once you start changing governments with military coups, you never
know when six more guys with guns are going to come around the corner and take over.”253
The
atmosphere was plagued by uncertainty making consolidating the government a difficult task.
The first victim of this instability was the transitional justice process that had been put in place
under Mujib’s administration as outlined in the Bangladesh Collaborators (Special Tribunal)
Order 1972.
On December 31, 1975, the Bangladesh Collaborators (Special Tribunals)(Repeal)
Ordinance was approved, effectively nullifying the war crimes trials for collaborators of the 1971
War for Independence. The Ordinance states:
Upon the repeal of the said Order under sub-section (1), all trials or other
proceedings thereunder pending immediately before such repeal before any
Tribunal, Magistrate or Court, and all investigations or other proceedings by or
before any Police Officer or other authority under that Order, shall abate and shall
not proceeded with.254
Because it resulted in the release of “a large number of people held as well as convicted under
the Collaborator’s Act,” the Ordinance was largely seen as an act of general amnesty for the
alleged crimes of 1971.255
The Ordinance also lifted the ban on religiously-based parties that had
been implemented under Mujib, giving more credence to the Islamist parties. Doing so allowed
Zia to gain considerable support for his regime from anti-Awami League parties that had
previously been suppressed like the Jamaat-i-Islami. With support from both the right and the
252
As quoted in Ibid.
253
Quoted in William Borders, “Bangladesh’s Drive for Progress: 4 Long Years on a Treadmill.”
254
Government of the People’s Republic of Bangladesh, International Crimes (Special Tribunal)(Repeal)
Ordinance, 1975 (December 31, 1975).
255
Rounaq Jahan, “Bangladesh: Promise and Performance,” 16. The International Crimes (Tribunals) Act 1973,
however, was not overturned and is still in effect despite these actions against the transitional justice regime.
83
left, Zia could start “the slow process of civilianization and restoration of political activities” that
he had promised less than two months earlier.256
It is important to note here how the shift in the political balance of power led to a major
shift in the war crimes policy. Moreover, it is important to understand how this shift occurred: an
initial coup in August, a subsequent coup in November and a counter-coup the same month. The
nature of politics in Bangladesh proved to be unpredictable and unstable, characteristics that are
not suitable for instituting war crimes trials. Political instability had therefore, contributed to the
downfall of transitional justice in Bangladesh. It had led to a major shift in the balance of power
from Mujib to Zia that ushered in a new policy agenda for Bangladesh. As shown here, this
agenda did not include the continuance of the transitional justice process and instead, the process
was discontinued in favor of establishing stability and order. This evidence therefore, supports
my hypothesis that delayed justice is more likely to occur under conditions of political
instability.
Election Problems and Popular Discontent
Political instability was manifest in other ways throughout this period, most particularly
with regards to elections. Elections had now become a source of societal and political upheaval
and the instability associated with administering new elections and consolidating a new
government had ramifications for the ability and willingness to implement transitional justice in
Bangladesh. In one example of pre-election violence, Zia – in his capacity as Chief Martial Law
Administrator – arrested 11 politicians for “prejudicial activities against the state” in addition to
charges of corruption. Some reports of the incident speculated that the arrests were an attempt to
quell the opposition that arose to the November 1976 announcement that the February 1977
256
Ibid.
84
elections had been cancelled.257
Among those arrested were four members of former president
Mushtaque Ahmed’s new party, the Democratic League, and six members of the ousted Awami
League of Sheikh Mujib.258
In addition, 100 middle-level political workers were arrested in an
attempt to “quash any resistance to the Government’s decision to postpone the elections
originally set for February.”259
Zia subsequently announced that village elections would be held
early the following year and national elections would come “in due time.”260
Zia was proving to
be a decisive military leader and in April 1977 he transitioned from his military role to his
civilian one when he became president after Sayem resigned.261
Another event that exemplifies the political instability in Bangladesh occurred on
October 2, 1977. In response to Zia’s ascension to the presidency and in defiance of the new
regime, a group of mutineers attacked Zia’s private residence and killed a number of air force
officers at Dhaka airport in an attempted coup. By the time the mutiny had been squashed, 100
people were reportedly killed.262
While the motivations for the coup were not immediately clear,
it was and has since been suspected that some of soldiers involved were loyal to the rebels who
previously overthrew Mujib. In response, Zia transferred or forced into retirement three officers
who were aspirants for the chief of staff post, one of whom would be involved in the overthrow
257
President Sayem announced that elections were postponed indefinitely: “an election in February would endanger
the country’s security, destroy national unity and strengthen the hands of the enemy.” “Bangladesh Postpones
Elections That Were Planned for February,” New York Times (November 22, 1976).
258
Ibid.
259
“100 Arrested by Bangladesh in Week,” New York Times (December 8, 1976).
260
Ibid.
261
“World News Briefs: Bangladesh Leader Quits, Gives His Post to General,” New York Times (April 22, 1977).
262
“100 Reported Killed in Dacca Coup Attempt,” New York Times (October 3, 1977) and Craig Baxter,
Bangladesh: From a Nation to a State, 97.
85
of Zia four years later. 263
The new security apparatus had been challenged adding to the societal
atmosphere of uncertainty that plagued Bangladesh since Mujib was overthrown in 1975.
It is important to understand this political upheaval in order to understand why the war
crimes would not be redressed during this period. Conducting an examination such as this
illuminates the political environment during the Zia administration which was, arguably, not
conducive to implementing transitional justice. The government under Zia’s direction had failed
to hold elections and to consolidate a democracy. Without a stable government, the institutional
capacity for conducting war crimes trials was highly limited. As illustrated from the above
incident in 1976, the government had not attained this type of stability nor had it been able to
hold democratic elections, an essential ingredient for developing this institutional capacity. This
evidence shows how political instability continued to be a factor in explaining the absence of
transitional justice, supporting my hypothesis regarding political stability.
The Changed Domestic Agenda
Political instability not only contributed to the absence of transitional justice, it also
contributed to a shift in the domestic agenda which moved further from the issue of
accountability for alleged crimes committed during the 1971 war. Indicating this clear shift in
priorities was Zia’s speech during the 1977 national referendum campaign. The referendum
asked Bengalis to vote either in favor of or in opposition to his presidency in an attempt to gain
popular support and legitimacy. He had been calling the referendum “a great exercise of the
democratic franchise,” stressing the need for economic development and independence: “We
must stop begging from the world and start working hard enough to feed ourselves. We must
263
Craig Baxter, Bangladesh: From a Nation to a State, 97.
86
increase our literacy and increase our strength.”264
This marked a clear shift in the national
agenda. Whereas Mujib was preoccupied with issues of diplomacy and peacebuilding –
including post-conflict justice – Zia’s attention was focused on achieving economic success that
would potentially propel Bangladesh out of poverty. Zia was given a strong vote of confidence –
99.5 percent voted affirmatively – giving him the assurance to move forward with a national
election which, he stated, would be held the following year, in 1978.265
In reiterating this new agenda, Zia established a 19-point program that outlined the main
priorities of his administration. In it, he called for rural development and population control as
part of a socioeconomic stimulus.266
It mentions “[making] the country self-sufficient” and
“[giving] necessary incentives to the private sector for economic development.”267
The 19-
points would be a guide for Bangladesh to follow under Zia’s leadership. It also became the
BNP’s manifesto in later years, after Zia had was overthrown. Most importantly for the purposes
of this study, the 19-point program reflects the changed domestic policies that resulted from the
unstable political landscape.
Resulting from Mujib’s inability to stabilize the government was a major shift in the
balance of power in Bangladesh, which gave rise to a new agenda with a new set of domestic
priorities. These new priorities, as exemplified in the above examples, focused on rebuilding for
the future of Bangladesh based on new initiatives aimed at poverty reduction, population control
and rural development; however, it turned away from issues of the past including those issues
264
William Borders, “After 18 Months of Nearly Absolute Rule, Bangladesh’s Leader is Holding Plebiscite,” New
York Times (May 28, 1977).
265
Syed Serajul Islam, “The State in Bangladesh Under Zia (1975-81),” Asian Survey, vol. 24, no. 5 (May 1984):
562.
266
“19-Point Programme of the Bangladesh National Party,” found in Golam Hossain, General Ziaur Rahman and
the BNP: Political Transformation of a Military Regime (Dhaka: University Press Limited, 1988), 119.
267
Ibid 119.
87
arising from alleged crimes that were committed during the Liberation War in 1971. This
shifting focus away from the justice issue was a byproduct of the political instability that had
allowed Zia to ascend to power in 1975. Therefore, political instability explains, in part, the
absence of transitional justice during the period under the Zia regime.
The Fall of Zia
A final example of the political instability that plagued this period was the violent
overthrow of Zia in 1981. Zia’s efforts at ensuring an independent, prosperous future for
Bangladesh would be dashed shortly after his 1978 election victory; the civilian government that
took nearly four years to consolidate would last less than three years. Ziaur Rahman was
assassinated on May 30, 1981 in Chittagong in a plot allegedly mastermind by Major General
Muhammad Manzur who had been transferred to Chittagong in the aftermath of the Dhaka
mutiny in October 1977.268
Chief of Staff Major General Ershad suppressed the rebellion,
arresting the officers and enlisted men that were implicated in the assassination. Concurrently,
Vice President Abdus Sattar took control of the central government.269
However, Sattar would
not concede to General Ershad’s demands that the military become an institutionalized
government entity, causing significant tension between the two. This tension boiled over when,
on March 24, 1982, Ershad overthrew Sattar in an orchestrated coup. Ershad would
subsequently declare martial law, suspending the Constitution.270
The political balance had
shifted again in a country that had yet to see peace and stability since the events of 1971; a new
268
Craig Baxter, Bangladesh: From a Nation to a State, 103. Also see Les Ledbetter, “Bangladesh Reports Death of
President Ziaur Rahman,” New York Times (May 30, 1981).
269
These officers and enlisted personnel were eventually tried for their alleged crimes and sentenced to death. “In an
interesting twist, the case was reopened in 1995…There has been an evident attempt to involve Ershad in the
investigation…but it seems that the motives are behind it.” See Ibid.
270
Rounaq Jahan, “Bangladesh: Promise and Performance,” 18-19.
88
era would be in store for Bangladesh, but it would be almost a decade before its people would
see democracy again.
The evidence presented shows how political instability – exemplified through major
shifts in the balance of power, an attempted coup, societal and political discontent and the failure
to consolidate a democracy – affected the transitional justice process in Bangladesh. Not only
did this instability lead to the absence of justice, it caused the agenda to shift completely away
from justice. This evidence lends support to my hypothesis regarding political stability that
predicts a delay in justice if instability is present. With instability present in Bangladesh, justice
would, in fact, be delayed.
Regional Community Involvement: Changing Relations
India
As the main regional actor , India had once played a major role in shaping the transitional
justice process in Bangladesh. However, Indo-Bangladesh relations deteriorated after the
assassination of Sheikh Mujib; President Gandhi had lost a close ally and friend when he was
ousted. With such instability in the first few months after his death, India had greater cause for
concern. As Maniruzzaman has asserted, “New Delhi [had] made no secret of its disapproval of
the first coup of August 15 and its welcome of the second coup of November 3; nor is it
disguising its anxieties over the November 7 coup.”271
During this period, it played a much less
prominent role in shaping Bangladesh’s policies as Dhaka made a clear attempt to distance itself
from India.272
In fact, the popular view in Bangladesh at the time was that relations between
India and Bangladesh were “too close.” Reports stated that “a common view in Dacca [held
271
Talukder Maniruzzaman, “Bangladesh in 1975: The Fall of the Mujib Regime and Its Aftermath,” Asian Survey,
vol. 16, no. 2 (February 1976): 128.
272
Ibid.
89
that] the reason the Indians liked the government of Sheikh Mujib was that they felt they could
control it.” 273
The result of this distancing, therefore, was a “chill” in relations between the
governments.274
The governments would remain friendly though, and Zia initiated a number of
attempts to better the relationship, taking advantage of a new Indian government under Prime
Minister Morarji Desai.275
To ease tensions initially, Bangladesh sent a delegation to India to discuss diplomatic
relations.276
The resulting joint communique promised “steps to create a proper climate for
better understanding,”277
though relations did not change in the near term.278
Bengalis,
alternatively had strong feelings that India had militaristic ambitions in Bangaldesh, which
served to fuel persistent anti-Indian sentiments. India, alternatively, charged Bangladesh of
inciting hostilities along their border. This in combination with Zia’s claims that India was
attempting to overthrow his regime created a climate of hostility between the two.279
While
relations did improve slightly with the change in leadership in India, there was no overt shift in
this chill by the time Zia was assassinated in 1981.
273
William Borders, “Bangladesh’s Drive for Progress: 4 Long Years on a Treadmill.”
274
Ibid.
275
Golam Hossain, General Ziaur Rahman and the BNP: Political Transformation of a Military Regime, 66.
276
The move came after the High Commissioner of India, Samar Sen, was shot in Dhaka at the chancery building
which further “clouded the relations between the two neighbors.” See “Head of Bangladesh Seeks India Parley On
Improving Ties,” New York Times (November 28, 1975).
277
William Borders, “Bangladesh’s Drive for Progress: 4 Long Years on a Treadmill.”
278
One of these issues was that of the Farraka Barrage which controlled the flow of water from the Ganges River
into Bangladesh. An agreement was reached between Mujib and Gandhi regarding the issue in 1974. The Indians,
however, did not fulfill a significant portion of the agreement. Despite Gandhi’s promise that she would increase
the water flow to Bangladesh in 1976, Zia took the issue to the United Nations. The issue remains a bone of
contention between the two countries today. See Lawrence Ziring, Bangladesh: From Mujib to Ershad, An
Interpretive Study, 133-134.
279
Talukder Maniruzzaman, “Bangladesh in 1975: The Fall of the Mujib Regime and Its Aftermath,” 128. For more
on Zia’s accusations of India’s alleged attempts to overthrow him, also see William Borders, “Bangladesh Leader
Accuses India of Training and Arming Guerillas,” New York Times (September 27, 1976).
90
It could be inferred from the evidence that the lull in relations between India and
Bangladesh had ramifications for the transitional justice process. During the first five years of
independence, India’s role in such a process was readily apparent: it wielded prisoners of war
and used them as a bargaining chip between Pakistan – who wanted them repatriated – and
Bangladesh – who wanted the prisoners to stand for prosecution. I also argued previously that
the diminished support from India contributed to the collapse of the war crimes trials.
Under the Zia regime, with a clear policy in opposition to Indian involvement, it could
be argued that this contributed to the absence of the trials and of the transitional justice process
as a whole. Zia and his government may have viewed the trials as a mechanism of the old
regime of the pro-Indian stance that was attributed to it. Ending the trials may have been an
attempt to rid Bangladesh of its reliance on India. However, the availability of documentary
evidence on this relationship and how it impacted transitional justice in Bangladesh is much too
limited and circumspect to conclude that this was actually the case. What is clear from the
evidence is the shift in Indo-Bangladesh relations came about as a result of Zia’s ascension to
power and as a result of his success in diminishing Bangladesh’s dependence on India.
The Islamic States
While moving away from India, Zia developed stronger diplomatic ties with the Islamic
states, in fulfillment of one the points in the 19-point program: “To build up friendship based on
equality with all countries and especially strengthen relations with the Muslim nation.”280
It is
important to note the development of these relationships, though it cannot be concluded that
establishing such ties had any bearing on the collapse – or absence – of transitional justice in this
period. What can be inferred from the evidence is Bangladesh’s willingness – and almost
280
“19-Point Programme of the Bangladesh National Party,” found in Golam Hossain, General Ziaur Rahman and
the BNP: Political Transformation of a Military Regime, 119.
91
eagerness – to establish stronger relations with countries that it had once been at odds with in
carrying out war crimes trials. For instance, in carrying out his ambitions outlined in the 19-point
program, Zia cultivated relations with China and Pakistan. This is illustrated by the three year
trade and commerce agreement signed between Bangladesh and Pakistan in May 1976, which
was followed up by a “goodwill visit” to China in 1977 where a series of cooperation agreements
were signed that “[covered] economic and technical cooperation, and trade and payments
between the two countries.”281
It would appear that relations were mainly tied to issues of
economic development and trade relations which, arguably, had no direct impact on transitional
justice.
Conclusion
The Zia era in Bangladesh was characterized by a number of issues that had an impact on
the transitional justice process. First, almost immediately Zia abolished the transitional justice
mechanism put in place by the previous government. His government overturned the main piece
of legislation enacted for prosecuting collaborators in addition to releasing those already tried
and convicted of war crimes. This was arguably a symptom of the shifting political balance of
power Bangladesh encountered after Mujib was overthrown. Hence, I argue that political
instability explains the delay of transitional justice in Bangladesh to this point in history.
Second, it is clear that Zia was unable to consolidate the government as exemplified by
the pre-election violence of 1976. Further hampering the attainment of this goal was Zia’s
inability to gain popular support resulting in widespread discontent and further violence,
exemplified in the attempted Dhaka coup in 1977. The atmosphere of uncertainty and instability
was not particularly salient for war crimes trials to take place, as they would have most likely
281
“Bangladesh Leader Leaves Peking,” New York Times (January 6, 1977) and Golam Hossain, General Ziaur
Rahman and the BNP: Political Transformation of a Military Regime, 66.
92
resulted in further violence. In addition, there was a clear lack of political will to do so. Again,
political instability is a likely explanation for the lack of transitional justice processes during this
period.
Lastly, this period marked a major shift in diplomatic relations for Bangladesh, which
impacted how involved the regional community was in the country’s affairs. While relations
with India cooled, relations with other “Muslim” nations were established and developed under
the Zia administration. These shifting relations may have had an impact on the collapse of the
transitional justice process and the subsequent absence of an accountability mechanism. Though
with limited primary documentary evidence, such an assertion cannot be concluded. It is clear
however, that first, relations with India did change as a result of the shift in the balance of power
and, second, that the justice process that was once supported by India had been scrapped.
Moreover, Zia developed a plan to better relations with states who were opponents of Mujib’s
transitional justice process, like Pakistan and China. Because there is no implicit link between
these factors, I conclude that the regional community was not involved in Bangladesh during this
period, but also that this disengagement did not directly impact the decision to forgo post-
conflict justice in Bangladesh. The evidence does not support or lead to a rejection of my
hypothesis regarding regional and international community involvement.
93
CHAPTER 6: AUTHORITARIANISM AND THE QUEST FOR DEMOCRACY
General Ershad’s assumption to power was not met with the support and admiration that
Zia experienced in his rise to supremacy. The domestic situation had become so violent and
disruptive near the end of Mujib’s tenure that the population felt relieved and hopeful when Zia
came into the political fora. When Ershad ascended to power, however, the same sentiments
were not shared. Despite his status as a repatriated officer, he was viewed as a “power-hungry
general who lacked the skills that Zia had developed.”282
Throughout the duration of his military
rule (1982 – 1990), these views did not change significantly. Ershad’s regime was characterized
by societal and political upheaval aimed at dismantling his regime. Protests, boycotts and
demonstrations were normal in his almost decade long quasi-civilian governance.
In this chapter I analyze the political instability under the new martial law regime. First, I
demonstrate how the instability derived from Ershad’s assumption to power resulted in a
changed domestic policy agenda. To do this, I highlight the efforts aimed at anti-corruption and
privatization of the economy demonstrating how political instability also has ramifications for
the domestic agenda since it changes drastically with shifts in the balance of power.
Furthermore, Ershad was unable to consolidate his regime due to societal and political backlash
to his domestic policies. To illustrate and provide evidence for my argument – that political
instability was a contributing factor to delayed justice – I analyze the 1983 Dhaka riots, the
attempts at scheduling and administering an election between 1983 and 1986, the 1988 elections
and the aftermath, and the protests of the late 1980s and the subsequent resignation of Ershad in
1990. In a related point, I demonstrate how this political instability and failure to consolidate a
functioning civilian government contributed to the development of a societal call for justice in
1988-89. Political instability was the defining characteristic of this period and while instituting
282
Craig Baxter, Bangladesh: From a Nation to a State, 107.
94
transitional justice process would have been near impossible under such conditions, the societal
discontent that this instability bred, provided an impetus for developing the call for justice. In
short, there is evidence to support my hypothesis that political instability is more likely to result
in a delay, non-legal form of transitional justice.
I also analyze the involvement of the international and regional community during this
period. I demonstrate how relations with India continued to deteriorate and how relations
between the Arab nations, including Saudi Arabia and Pakistan, grew stronger, due in part to
Ershad’s quest in making Bangladesh an Islamic Republic. Ershad and his administration also
developed better relations with the United States who supplied Bangladesh with a majority of its
development aid. While these points are relevant to this study, I cannot conclude with certainty
that these changing relations contributed to delayed legal justice because of a lack of primary
documentary evidence. However, it is clear that these foreign policy movements contributed to
the shifting agenda; it continued to focus on the future and turn away from the past. It is
important to note that the first hypothesis with regards to peace agreements was not present
during this period; therefore, this variable is not addressed in this chapter. Additionally, no
evidence was found to support or refute the third hypothesis – culpability on the part of the
decision-makers – hence, this chapter does not address this variable.
Historical Overview
When Lt. General Hussain Mohammed Ershad assumed power on March 24, 1982, he
did so under the guise of combating corruption. After suspending the Constitution and declaring
martial law, Ershad named himself Commander-in-Chief of the armed forces and Chief Martial
Law Administrator. He named A.S.M. Ahsan as President of Bangladesh, though he was merely
95
a ceremonial figure who was subject to Ershad’s demands. 283
General Ershad justified his action
saying “the security of the country was threatened by social and political indiscipline,
unprecedented corruption, a devastated economy, an administrative stalemate, extreme
deterioration of law and order, and a frightening economic and food crisis.”284
The military
regime further created an atmosphere of uncertainty about how long this military rule could last
as newspaper publisher Moinal Hussain stated, “If this martial law is continued for long, there
will be trouble. People do not like it.”285
The next decade would be characterized as rule by law as opposed to rule of law. Ershad
vied for power in the midst of societal and political instability as major political parties refused
to participate in his military regime. Eventually Ershad assumed the presidency without gaining
a single vote, a move he deemed necessary to make the smooth transition to democracy. Despite
his attempts at establishing an inclusive political process, Ershad was unable to gain support
from the opposition parties. He faced resistance to each of his attempts at holding elections in
1983, 1986 and again in 1988. The saga that was this military period would only come to an end
when Ershad conceded to the opposition’s demands and relinquished power in 1990.
Political Instability: Failure to Consolidate Civilian Governance
Ramifications of Past Instability: A Shifting Agenda
The domestic agenda would change during Ershad’s regime as a result of political
instability. This shifting agenda continued moving Bangladesh further from transitional justice
and accountability for alleged crimes of 1971. For instance, in beginning his martial law
283
Colin Campbell, “New Bangladesh Regime Arrests 200,” New York Times (March 27, 1982).
284
Craig Baxter, Bangladesh: from a Nation to a State, 107.
285
Colin Campbell, “Bangladesh Picture: New Leader, Same Problems,” New York Times (March 29, 1982).
96
campaign Ershad immediately set up special courts to punish those he considered guilty of
corruption. The punishment for such crimes, he stated, would include the death penalty. Within
two days of seizing power, there were already reports that former Cabinet members were
arrested and imprisoned.286
More than 200 former government officials, among others, were
arrested by March 26 on charges of “corruption, misuse of power and anti-state activities.”287
According to Ershad, such policies were necessary to restore democracy.
In another example, Ziring notes that the government set in motion a series of policies to
address the “chaotic state” of the economy. Many of these policies reversed the programs set in
place by the Awami League in 1975: “Property was returned to the original owners and public
ownership was retained only in public utilities, steel, fertilizer and other heavy industries.”288
The ultimate goal was to privatize the economy in pursuance of capitalism. In another effort to
respond to the growing economic problems, Ershad “sought and received an enlarged foreign aid
package and implemented many donor prescribed policies including a structural adjustment
program.”289
This further enhanced Bangladesh’s developing relationship with Western nations
– and the international organizations of the West like the World Bank and International
Monetary Fund – and with Islamic nations such as Saudi Arabia who were all too willing to
provide aid in exchange for a portion of Ershad’s new agenda. One of these policies made Arabic
a required school language. In response, Dhaka University students took to the streets in protest
286
Colin Campbell, “Bangladesh General Citing ‘Corruption,’ May Try Ex-Leaders,” New York Times (March 26,
1982).
287
Colin Campbell, “New Bangladesh Regime Arrests 200.”
288
Lawrence Ziring, Bangladesh: From Mujib to Ershad, an Interpretive Study, 155-156.
289
Rounaq Jahan, “Bangladesh: Promise and Performance,” 19. Also noted in Ibid.
97
in what was the first violent challenge to Ershad’s martial law authority.290
As a consequence at
least five people were killed, hundreds more injured, and several thousand jailed.291
It is clear that Ershad had no interest in instituting an accountability mechanism for
addressing alleged war crimes from the 1971 Liberation War. Instead, he chose to focus his
attention on development and economic recovery through privatization and donor aid, as well as
on combating corruption that characterized the political landscape. In addition, there was a push
towards making Bangladesh an Islamic Republic inciting tensions between the military regime
and secular parties like the Awami League, which was manifest in the Dhaka riots. Therefore,
the shift in the balance of power and the resulting political instability shifted the domestic policy
agenda that continued to move away from issues of the past including transitional justice.
Consolidating Democracy: Problems and Issues
By the time Ershad came to power, Bangladesh had already experienced nearly a dozen
years of independence. In that time, however, the country was unable to achieve lasting political
stability; Ershad’s military rule would not prove to be any different. In attempting to consolidate
a civilian government, Ershad was unable to gain a political consensus from major parties like
the Awami League and the BNP. Elections were fraught with violence and the aftermath was
plagued by protests and demonstrations. Without political peace, however, “gains in food
production [and] economic development programs” could not be achieved.292
The student-led,
anti-Government riots were just one manifestation of the challenges Ershad faced in attempting
290
William Stevens, “In Bangladesh, the Path to Stability Is Uphill,” New York Times (April 16, 1983) and
Lawrence Ziring, Bangladesh: From Mujib to Ershad, an Interpretive Study, 157.
291
William Stevens, “In Bangladesh, the Path to Stability Is Uphill.”
292
Ibid.
98
to stabilize his regime. Political instability, therefore, contributed to the absence of transitional
justice during this period.
Holding elections were an important means by which Ershad pursued this quest towards
establishing stability. In his first move towards this end, Ershad relaxed the ban placed on
political activity as a result of the martial law regulations already in place, while maintaining the
restrictions on street rallies and outdoor meetings. In the same announcement, Ershad proposed
to hold elections in the fall of the following year.293
These proposed elections would follow a
similar schedule to that set up by Ershad’s predecessor, Zia Rahman. First, elections would be
held at the local level; then, presidential elections would take place until the parliamentary
election was held, completing the election process. It was believed that once the process was
established and the elections completed, the government would be consolidated and stabilized.294
On November 14, 1983, Ershad announced that presidential elections would be held in May
1984 and parliamentary elections would take place on November 25 of the same year. Free
political activity was also immediately sanctioned, opening the possibility for the democratic
process.295
Ershad, however, did not receive the much needed support from the mostly civilian
politicians and their parties; a 15-party alliance headed by the Awami League and a seven-party
alliance headed by the Bangladesh National Party were two of these main factions. In rejection
of Ershad’s plans, these political opponents called for national hartals to make management of
the government more difficult. Around 200 politicians were arrested and six people killed.
293
“Around the World: Bangladesh Relaxes Ban on Political Activity,” New York Times (March 26, 1983). An
important, though not pertinent, note to make is the change made to the word “Dacca” which had been changed the
same year to “Dkaha” reflecting the Bengali pronunciation.
294
Peter Bertocci, “Bangladesh in 1984: A Year of Protracted Turmoil,” Asian Survey, vol. 25, no. 2 (February
1985), 156.
295
“Around the World: Bangladesh Chief Orders Elections for Next May,” New York Times (November 15, 1983).
99
Hasina Wajed (also referred to as Sheikh Hasina), daughter of Sheik Mujib and leader of the
Awami League, and Begum Khaleda Zia, widow of Zia Rahman and leader of the Bangladesh
National Party, were among those arrested.296
In response, the opposition parties demanded that
certain preconditions be met before they would participate in national elections. These demands,
known as the 5-points, were laid out in December 1983 and became one of the main
impediments for Ershad to consolidate his government.297
With the political situation clearly at a stalemate, Ershad declared himself President on
December 11. In a radio address, he stated, “It has been considered necessary for me to assume
the office of President for paving the way for transition to democracy from martial law. We have
come to a stage from where we want to fully dedicate ourselves to the task of establishing
democracy in the country.”298
He continued to call for a genuine dialogue between his regime
and the political parties and, in what some would characterize as a gesture of good-will, he
released the 200 political prisoners, a move that also addressed one of the 5-point demands. He
also announced that parliamentary and presidential elections would be held concurrently in May
1984 compromising on the demands of the opposition. At the same time, however, Ershad re-
imposed the ban on political activities that he had previously relaxed.299
By March 1984, the bans on political activity were once again lifted and General Ershad,
faced with heavy anti-Government opposition, went ahead with the scheduled March 24 local
296
Peter Bertocci, “Bangladesh in 1984: A Year of Protracted Turmoil,” 157. Both Begum Zia and Hasina Rahman
were detained after anti-government riots in November 1983.
297
Ibid 158. The five points included the following: (1) martial law should be lifted before elections take place; (2)
restoration of fundamental rights; (3) parliamentary elections should precede all others; (4) a release of political
prisoners; and (5) a trial to be held for those responsible for the death of students in the demonstration at Dhaka
University. See Ibid and Lawrence Ziring, Bangladesh: From Mujib to Ershad, An Interpretive Study, 158-162.
298
Referenced in William Stevens, “Bangladesh Leader in Military Regime Assumes Presidency,” New York Times
(December 12, 1983).
299
William Stevens, “In Dhaka, Tentative Steps Toward Democracy,” New York Times (December 18, 1983).
100
elections.300
However, he announced on May 12 that presidential elections were postponed until
after the parliamentary elections, which were to be rescheduled to the end of 1984, a notice that
came only a couple of weeks before the elections were to be held concurrently.301
Unable to
reach a settlement and angered by the postponement of elections, the opposition parties – the
BNP, Awami League and the Jamaat-e-Islami – converged on the capital protesting for an end to
martial law. As long as military rule remained intact, these parties refused to participate in
elections.302
In response, General Ershad postponed parliamentary elections indefinitely.303
Then, in early January 1985, he dissolved his Council of Ministers and announced that
parliamentary elections would be held on April 6 of that year.304
Ershad appeared to be employing a o”ne step forward, two steps back” routine. This did
not change through 1985 and would only be resolved to some extent in 1986 when parliamentary
elections were finally held. The pro-Ershad Jatiya Party won a majority of the seats (153), while
the Awami League held onto 72 seats.305
Parliament was supposed to open on July 9; however,
Sheikh Hasina and her Awami Leauge boycotted and instead demonstrated against martial law,
which was still in place: “102 opposition members boycotted the opening session and held a
mock parliament outside [and violence erupted] when opposition activists tried to break through
a security ring outside the [Parliament] building.”306
Presidential elections were then
subsequently held in October 1986. With only weak opposition candidates opposing him,
300
“Bangladesh President Vows to Lift Political-Activity Ban,” New York Times (March 1, 1984).
301
Craig Baxter, Bangladesh: From a Nation to a State, 111.
302
“Huge Rallies Denounce Bangladesh Martial Law,” New York Times (October 15, 1984).
303
Craig Baxter, Bangladesh: From a Nation to a State, 111.
304
“Bangladesh Dissolves Cabinet and Sets Election,” New York Times (January 16, 1985).
305
“Results of the 1986 Parliamentary Election,” found in Craig Baxter, Bangladesh: From a Nation to a State, 113.
306
“Around the World: Bangladesh Parliament Opens With Violence,” New York Times (July 11, 1986).
101
General Ershad emerged victorious, proclaiming, “This is the day that we negotiated the last
bridge towards a democratic government. Today my pledge to the nation stands fulfilled.”307
Protests by the opposition continued well into 1987, though the intensity increased as did
the calls for Ershad’s resignation. One incident on July 22 ended with 50 injuries, of which 13
were military personnel. Firebombs exploded throughout Dhaka and riot police fired tear-gas
into the crowds in an attempt to control them.308
The culmination, however, came on November
10 in what was called the ‘siege of Dhaka.’ Recalling the event, Baxter states, “…for all
practical purposes [it] shut down the city…On November 27 Ershad declared a state of
emergency under which fundamental rights were suspended.”309
Ershad subsequently dissolved
parliament on December 6 and violence continued into the following year.310
Elections were held
again in March 1988 to which the ruling Jatiya party would be the overwhelming victor. The
opposition parties continued their resounding call for Ershad’s resignation and, in some cases,
with their attempts to disrupt the elections became extremely violent. As one report stated,
“Rival political groups fought with guns, knives and bombs killing up to 13 people. They burned
paper ballots, stole ballot boxes and drove election officials away in some centers.”311
The
opposition did not stop until Ershad was ousted.
307
Steven Weisman, “Bangladesh Chief Claims Vote Victory,” New York Times (October 17, 1986). This same
report noted that “there were also widespread indications of irregularities. Reports saw voter sheets in which all the
votes on one page were listed as having been cast, while almost none of the voters on another page had voted,
suggesting that officials had marked up the lists themselves.”
308
“Bangladesh is Torn by Violent Demands That President Quit,” New York Times (July 23, 1987).
309
Craig Baxter, Bangladesh: From a Nation to a State, 113-114.
310
“Bangladesh President Dissolves Parliament,” New York Times (December 7, 1987).
311
“Ruling Party Is Declared the Winner in Bangladesh,” New York Times (March 6, 1988). Tensions were also
exacerbated by Parliament’s decision to make Islam the official religion of Bangladesh, a move that had the
potential of marginalizing the Hindu, Buddhist and Christian populations that accounted for 13 percent of the
Bengali population. The Awami League and the BNP were especially upset over the decision. See “Bangladesh
Parliament Votes to Make Islam State Religion,” New York Times (June 8, 1988).
102
Defeating Ershad
With more than 60 protests in 1989, President Ershad faced a strong and populous
opposition to his government.312
By the end of following year violence had once again become a
mainstay. An October protest organized by the student wings of both the Awami League and the
BNP played a particularly poignant role in developing the “one-point program: the resignation of
Ershad, to be followed, of course, by a free and fair election.”313
The demonstrations persisted
and Ershad declared another state of emergency on November 27, emphasizing that it was
“necessary to safeguard the country’s internal security in the face of what he called a conspiracy
to destroy the economy.”314
Civil liberties were once again suspended, a move that only added
fuel to the fire.
The demonstrations continued to call for his resignation. To quell the rebellion, Ershad
announced that he would hold presidential and parliamentary elections in 1991 before which he
would resign the office of president. So, on December 4, 1990, President Ershad handed in his
resignation. “The ball is now in the opposition’s court,” he stated in a call to the opposition to
produce a candidate to run in the upcoming elections.315
Shortly after his resignation, on
December 12, the former President and his wife were arrested and “a special tribunal headed by
a High Court judge [was] set up to try Mr. Ershad on charges including gold-smuggling,
nepotism and plundering money from the impoverished country.” 316
He would be put on trial
for the very corruption he claimed to fight so vigorously against.
312
Lawrence Ziring, Bangladesh: From Mujib to Ershad, An Interpretive Study, 212.
313
Craig Baxter, Bangladesh: From a Nation to a State, 115.
314
“Citing Violence, Bangladesh Declares State of Emergency,” New York Times (November 28, 1990).
315
“Bangladesh Chief Resigns His Office,” New York Times (December 5, 1990).
316
“Bangladesh Plans to Try Ex-Chief,” New York Times (December 13, 1990).
103
Despite Ershad’s willingness to hold elections, he was unable to gain substantial support
from the major political parties – the Awami League and the BNP. Each time he called for an
election, these parties vowed to boycott or protest in the capital to call for Ershad’s resignation.
Getting the political parties to buy-in to an election was an essential ingredient for establishing a
civilian government; without it, Ershad could not legitimize his rule. When elections were
finally held, the political parties refused to participate. Through boycotts and violent protests,
these parties effectively prevented any sort of government from being consolidated. Ershad
ruled under a one-party government for the remainder of the period exacerbating the contentious
political situation. Overcoming the political instability illustrated in the above instances became
the focal point of Ershad’s tenure. Unable to secure a democracy and unable to achieve stability,
Ershad capitulated to the opposition’s demands by resigning. Bangladesh would again change
hands with uncertainty of what would happen next. In summary, facing such harsh opposition to
his government, it was unlikely for Ershad to effectively institute an accountability mechanism
for crimes related to the war in 1971 making political instability a major factor to consider during
this period.
Out of Instability, a Call for Justice
Ershad’s inability to consolidate his administration and the continued violence associated
with his regime gave rise to a number of grievances against the government. According to
Jahan, “The NGO community…called for loosening of bureaucratic restrictions. Women’s
organizations were unhappy with the increasing public and symbolic emphasis on Islam [and]…
the power and privileges enjoyed by the military angered other influential power groups.”317
Significant for this study was the emergence of Projanma (generation) ’71, a pro-liberation
317
Rounaq Jahan, “Bangladesh: Promise and Performance,” 20.
104
movement that mobilized public opinion against collaborators of the 1971 war. The
organization, which resented the rehabilitation of collaborators after the fall of Mujib in 1975,
was founded by children of victims of the 1971 conflict.318
In 1988-89, the Projanma and other
constituencies began a sizeable movement, protesting the Jamaat-e-Islami and other alleged
collaborators.319
The movement, however, was unable to expand. The call for accountability
once again had a small voice in Bangladesh. Projanma ’71 was a major player later on in
developing a resounding call for justice that would ultimately lead the Awami League to include
the issue as part of their election platform. The political instability that had plagued this period,
therefore, had an effect on the movement towards justice. Society’s resentment towards the
worsening political situation gave rise to a call for justice making political instability a major
factor to consider when contemplating the emergence of transitional justice processes.
The International and Regional Community
The international and regional community was not a major factor during this period. The
influence and role of the surrounding states and of international organizations was constrained
mainly to development aid and economic recovery projects. While there is evidence that Ershad
pursued a policy much like that of his predecessor, there is not sufficient primary documentary
evidence to suggest this had an influence on the policy regarding crimes from the 1971 war.
What is evident is Ershad pursued a foreign policy that diverted attention away from India and
towards more powerful states such as the United States, China and Saudi Arabia. Much of the
agenda was shaped by considerations of donor aid. Bertocci states, “Seasoned Western
318
Ibid.
319
“Question 2: Golam Azam has been living in Bangladesh since 1978. So why you did not raise demand for his
trial in this long period?” Committee for Resisting Killers and Collaborators of Bangladesh Liberation War of 1971,
http://www.secularvoiceofbangladesh.org/all_about_nirmul_committee.htm.
105
observers of Bangladesh’s international activities agree that the country maintains judiciously
balanced and largely favorable diplomatic relationships with the nations on which it depends for
aid and the regional states with which it is geopolitically intertwined.”320
Hence, the Ershad
Government maintained generally friendly relations with the Western states; Ershad even made a
visit to the United States in 1983. The relationship that developed between Bangladesh and the
U.S. is an especially important one. Though evidence is inconclusive, it was speculated that
friends of Pakistan in the international community, the United States and China as two of the
most prominent, wanted Mujib to drop the war crimes trials, at least in relation to the Pakistani
prisoners of war.321
Alternatively, relations with the Soviet Union cooled – perhaps due in part to the warmth
shown towards the U.S. – evidenced by the expulsion of 18 Soviet diplomats from the country in
November 1983.322
The relationship with India remained contentious throughout this period as
dispute over water and borders continued, unresolved under Ershad’s administration.323
Indo-
Bangladesh bilateral relations, therefore, continued to deteriorate. While it is not possible to
come to a definitive conclusion due to the lack of primary documentation evidence, it could be
argued that Ershad’s foreign policy movements contributed to the changing domestic agenda that
focused heavily on development aid and humanitarian assistance.
320
Peter Bertocci, “Bangladesh in 1984: A Year of Protracted Turmoil,” 166. For instance, U.S. economic aid to
Bangladesh totaled over $2.2 billion dollars by the end of 1984, nearly half of which was designated to go towards
food production. There was also a proposed designation for assistance in training Bangladeshi military officers.
Ibid 168.
321
Rounaq Jahan, “Bangladesh: Promise and Performance,” 9-10. Also recall that China did block Bangladesh’s bid
for UN membership because of the prisoners of war issue.
322
William Stevens, “Bangladesh Leader in Military Regime Assumes Presidency.”
323
For more information on these issues see Peter Bertocci, “Bangladesh in 1984: A Year of Protracted Turmoil,”
166-168.
106
Conclusion
A few points need to be made for understanding the above historical overview and how it
relates to the instance of delayed justice in Bangladesh. First, it is clear that there was a shift in
agenda priorities under Ershad, a trend in Bengali politics. It is important to note that when a
political balance of power takes place as a result of instability, it changes the dynamics of the
entire system including what is added and taken away from the national agenda. For Ershad,
these priorities amounted to rooting out corruption among politicians and government officials,
privatizing Bangladesh through policies aimed at implementing capitalism, further developing
relationships with the West and Islamic nations through aid programs, and enacting policies
meant to make Bangladesh an Islamic Republic. These agenda items, oriented towards the
future, indicated how far removed Bangladesh became with regards to accountability for 1971
crimes. The issues had, by this period, shifted completely away from focusing on the past. With
characteristic instability and frequent shifts in the balance of power, transitional justice had been
removed from the national agenda; a further indicator of what instability can produce or reduce.
Hence, political instability made the instance of delayed justice a more likely occurrence,
contributing to the continued absence of any transitional justice mechanism.
Second, and most importantly, the period of authoritarianism under Ershad was arguably
the crux of political instability in Bangladesh. While other leaders – Mujib near the end of his
tenure and Zia throughout most of his rule – faced opposition to their leadership, none faced as
great a challenge to his regime as Ershad. His failure to consolidate a new government, and
thereby his failure to end martial law, was a major cause of this instability. Characterized by
violence and oppression, the climate was not conducive for addressing the issue of accountability
for the crimes committed in 1971. The challenges any sort of justice mechanism would have
107
faced during this period would have been so overwhelming, it is unlikely that it would have been
able to gain wide support. For this reason, it can be asserted that political instability contributed
to the absence of post-conflict justice during the Ershad period of authoritarian rule. In short, the
political instability of this period, which can also be seen as a continuation of the previous
period, contributed to a delay in the transitional justice process in Bangladesh.
Lastly, and also speaking to the second hypothesis of this study, is Bangladesh’s foreign
policy which, for all intents and purposes, remained unchanged from the previous regime of Zia
Rahman. Interestingly, the countries who claimed friendship with Pakistan during the Liberation
War, had by now become friendlier with Bangladesh than before. Whether or not these states
supported Mujib’s institution of justice is unclear and purely speculative. It is unlikely that any
one of the external actors during this period had any influence on transitional justice. Therefore,
a correlation can be made between the lack of regional and international community involvement
and the fact that post-conflict justice did not exist, much the same as the previous years under
General Zia; however, without primary documentary evidence I cannot conclude that this lack of
involvement contributed to or influenced a delay in justice or that it contributed to the type of
justice employed throughout this period or the previous one.
In sum, the evidence presented in this chapter illustrates how political instability can
result in delayed, non-legal justice, thereby lending support to my fourth hypothesis. It also
illustrates the correlation between regional or international community involvement and the
administration of transitional justice; in this case, a changed foreign policy agenda occurred
concurrently with the continued absence of justice processes. The evidence, however, was not
sufficient to conclusively support my second hypothesis. Furthermore, there were no peace
108
agreements present during this period and no evidence of culpable decision-makers, forcing me
to leave the variables unaddressed in this chapter.
109
CHAPTER 7: DEMOCRACY AND JUSTICE IN A NEW ERA
The fall of the Ershad regime marked a watershed in Bangladesh’s political history; it
was considered a major victory for democracy and constitutionalism. A new era in Bangladesh
had arisen out of the rubble of authoritarianism and democracy would be reborn in a country that
had yet to experience peace since its inception in 1971. Jahan states, “The transition to
democratic rule was marked by dialogue and agreement amongst contending political parties on
basic outlines of democratic governance including ground rules for future changes.”324
The
parties agreed that assassination and state controlled elections would no longer be the means of
governance. It appeared as if Bangladesh was on a path towards political stability, a feature little
known to Bengalis. Despite this initial good-will, the two main contending political parties – the
BNP and the Awami League –soon allowed historical tensions to surface as they had over the
past decades. The next 20 years were characterized by this political rivalry.
In this chapter I focus on examining the re-establishment of democracy and the institution
of a transitional justice process. Because peace agreements were not present in this period, the
variable of the first hypothesis is unaddressed in this chapter. Therefore, I begin by analyzing
the process of consolidating democracy and the contentious situation that existed between the
BNP and Awami League parties to demonstrate the existence of political instability. I
specifically analyze four elections between 1990 – 2010 (1991, 1996, 2001, and 2008) and the
aftermath of each to illustrate the inability of either political party to establish stability in
Bangladesh. I find that the failure to gain political stability during this period is one factor that
could explain why justice continued to be delayed. Instability can also explain why justice of
remembrance – exemplified by the opening of the Liberation War Museum – was chosen over
other mechanisms. Without resilient institutions, a byproduct of stability, implementing legal
324
Rounaq Jahan, “Bangladesh: Promise and Performance,” 21.
110
mechanisms of transitional justice would have propelled the country into more violence. While
this is true for most of the period, it does not explain why the Awami League chose to implement
tribunals in 2009. Nor does it explain why this legal approach to justice was chosen over other
mechanisms. Arguably, the situation in Bangladesh remained unstable and the institutions still
lacked the capacity to hold tribunals of this sort. Despite these realities, a transitional justice
process began and was implemented by 2010.
Second, I analyze the involvement of international and regional actors in Bangladesh
during this period. I examine Bangladesh’s relations with the regional community, specifically
India, which improved, but remained tenuous. Besides development aid, the regional community
did not play a particularly active role in Bangladesh during this period. I will also focus on
analyzing the response of the international community after the watershed events of 2008 to
show how this response may have had implications for post-conflict justice. While relations
with India improved and the United Nations became more involved in strengthening democracy
in Bangladesh, I find that the international and regional communities did not influence the delay
or type of justice mechanisms – legal and justice of remembrance – throughout this period.
Third and lastly, I examine the re-establishment of justice in Bangladesh that includes a
focus on the political actors involved. This section provides a potential conclusion as to why the
issue of transitional justice, specifically in the legal form, was not raised before 2008 through an
examination of the relationship between the BNP and the fundamentalist Jamaat-i-Islami party.
It can also be used to explain why transitional justice took on the justice of remembrance form
throughout this period. To illustrate this, I will use the Golam Azam incident of the post-1991
elections. This also exemplifies the movements towards justice that occurred in the civil society
as a result of this incident– including a citizens trial conducted in 1992 – to reiterate the rising
111
call for justice that developed despite the situation in the political realm. Because the Jamaat
was believed to have been culpable in collaborating and committing crimes in 1971, it is unlikely
that an accountability mechanism would have been implemented under BNP leadership. Doing
so would have assuredly hurt the Jamaat’s political base, which in turn would have reduced the
BNP’s chances of victory in any successive elections. Therefore, I conclude that the culpability
on the part of these decision-makers can explain, in part, why transitional justice was delayed
during this period.325
Political Instability: Consolidating Democracy and the Rise of the Awami League
The 1991 Elections and the BNP Government
Establishing free and fair elections was the main priority for Chief Justice Shahabuddin
Ahmed, acting president of Bangladesh, in the aftermath of almost two decades of military rule.
Within 90 days of establishing the caretaker government, Ahmed organized parliamentary
elections for February 1991 which were “declared by all observers – local as well as foreign – to
be the most free and fair election ever to be held in Bangladesh.”326
The main contest was
between the BNP and Awami League, though the Jamaat-e-Islami – the fundamentalist Islamic
party believed to have been ‘collaborators’ in 1971 – was also an important contender. Election
violence was comparatively low in the run-up to the election; fewer than 20 were killed and
several hundred wounded.327
The post-election, however, was the most uncertain: “there are
325
There were no peace agreements present during this period therefore, this variable will not be examined in this
chapter.
326
Rounaq Jahan, “Bangladesh: Promise and Performance,” 21.
327
Barbara Crossettes, “A Rare Open Election for Bangladesh Today,” New York Times (February 27, 1991).
112
many political and institutional uncertainties in a nation of 114 million people whose historical
progression The New Nation newspaper described today as ‘wading through a river of blood.’”328
While the Awami League was favored to win, it was Begum Zia’s party, the BNP, who
came out on top. Of the 300 seats contested, the BNP won 140 just short of a majority. The
Awami League won 88 seats, Ershad’s Jatiya Party gained 35 and the Jamaat took 18.329
Almost
immediately, Sheikh Hasina contested the results, charging the BNP of “intimidating voters” and
returning Bangladesh to “military hands.”330
With the support of the Jamaat-e-Islami, Begum
Zia was able to form the government with herself at its helm.331
The main challenge for the new
Prime Minister was making the promise of democratic governance into a reality. However, it
was not long before she would face serious opposition to this new government.
Opposition from the Opposition
By late 1991, “it became evident that the cooperation between the government and the
opposition…was not to be continued.”332
In one instance, Sheikh Hasina circulated a letter
highly critical of the BNP to all foreign ambassadors in Dhaka in what many believed to have
been an attempt to push an Awami League agenda through diplomatic channels.333
When the
BNP won a parliamentary by-election in March 1994, the tensions between the two parties
erupted. The Awami League refused to accept the BNP victory alleging the elections were
328
Ibid.
329
“Results of the 1991 Parliamentary Election,” found in Craig Baxter, Bangladesh: From a Nation to a State, 118-
120.
330
Barbara Crossettes, “General’s Widow Wins Bangladesh Vote,” New York Times (March 1, 1991).
331
“Bangladesh Gives Post to Opposition Leader,” New York Times (March 20, 1991).
332
Craig Baxter, Bangladesh: From a Nation to a State, 122.
333
Ibid.
113
fraudulent. The opposition would subsequently call for a series of demonstrations, parliamentary
walkouts and hartals resulting in a major political impasse in the next series of national
elections.334
The Awami League demanded Begum Zia resign the government and transfer
power to a caretaker for the administration of elections. After a 10-month walkout by the
opposition, Zia offered to step down on December 29, 1994 in preparation for 1996 elections.
“In return, Mrs. Zia asked opposition lawmakers to work with her to get her Government back on
track…but her foes rejected her plea to end anti-Government protests and went ahead with their
resignations.”335
The protests and demonstrations increased in intensity throughout 1995 as Zia attempted
to run the government without an opposition party. In a particularly violent episode at the end of
the year, armed militants of the BNP clashed with opposition groups seeking the resignation of
Prime Minister Zia. Reports alleged that twelve people had been injured and an “unspecified
number of militants” had been arrested.336
The protests came after the Election Commission
announced its plans to hold elections on January 18, 1996. Hasina stated, “There can be no
election under the BNP Government. Any attempt to pursue it will invite a harsher response.
The country is heading for a disastrous future and it can only be saved if the power-crazy Prime
Minister realizes the gravity of the situation and stands down.”337
If elections were held the
opposition would boycott. The aforementioned exemplifies the clear political instability that had
yet to cease in Bangladesh in this new era. It directly supports the political stability hypothesis
334
Craig Baxter, Bangladesh: From a Nation to a State, 124.
335
“Bangladesh Leader Accepts Foes’ Demand,” New York Times (December 30, 1994). The constitution provides
that any member of parliament that is absent for more than 90 days shall lose his/her membership. Once the 90 limit
was reached, the 147 members who walked out in December 1994, had officially lost their seats.
336
“Political Violence Erupts in Bangladesh Strike,” New York Times (December 12, 1995).
337
Quoted in ibid.
114
that posits political instability will make an instance of delayed justice more likely and the
implementation of legal justice less likely in transitioning states.
1996: A Year of Change
When elections were held in February 1996, the opposition boycotted. Running almost
uncontested, the BNP won most of the parliamentary seats and the government was once again
formed under Begum Zia. The elections were marked by violence, a characteristic feature of
Bengali elections and at least a dozen people were killed and many others injured. Despite the
violence, the Government and the opposition did not appear willing to concede on the major
issues. For the Awami League, “the low turnout had vindicated the opposition parties’ boycott:
‘The people have totally deserted this election, and shown it as fraud,’ stated Hasina.”338
It
would take Zia only a few weeks to yield to the opposition’s demands, when on March 3 she
offered to step down in favor of a caretaker government that would oversee the election process.
It was far from clear that such a move would end the turmoil in Bangladesh that had already seen
almost two years of political upheaval.339
Nonetheless, parliamentary elections were scheduled
for June 16 and a constitutional amendment was passed allowing for a caretaker government to
oversee the elections.340
While the first five years of democracy failed to bring stability to Bangladesh, many
hoped this new election would finally end the violence and set in place the foundations for a
338
John Burns, “Voters Are Few in Bangladesh As a Dozen Die in Clashes,” New York Times (February 16, 1996).
339
By this time, Bangladesh’s economy had already been paralyzed because of the political deadlock which sparked
widespread violence. John Burns, “Offer of New Bangladesh Election Fails to Solve Political Crisis,” New York
Times (March 4, 1996).
340
“The opposition found itself in an odd position. It had declared the Parliament elected in February to be ‘illegal,’
but this ‘illegal’ Parliament had passed an act that conformed to the opposition’s demands. An act passed by an
‘illegal’ Parliament became in the eyes of the opposition a legal action, and the opposition prepared to contest the
new election.” Craig Baxter, Bangladesh: From a Nation to a State, 126.
115
strong democracy. Though, fear still persisted that “the past [would] be revived, either in the
form of new turmoil fomented by the election losers or, worse, a new takeover by army generals
[with strong political links].”341
When the votes were counted, the Awami League came out
victorious and only a few votes short of a majority lead in Parliament. By allying with the Jatiya
Party, they tipped the balance in their favor, capturing the majority. In her victory speech,
Sheikh Hasina stated, “We will heal the wounds, not create new ones, unite the nation, not divide
it. We will immediately initiate consultations with all the political forces in the country and
begin a process of reconciliation.”342
Hasina was sworn in as Prime Minister 10 days later.
Within two months, Hasina overturned the Indemnity Ordinance put in place by General
Zia after the assassination of Sheikh Mujib in 1975. Three retired officers were arrested in
August after the Government asked five foreign governments to “deny asylum to five other
former officers suspected in the killings who were serving abroad as diplomats.”343
In addition,
a day of commemoration for Mujib’s death was instituted under the new administration
accompanied by a decree that restored his status as Bangabandhu (Beloved of Bangladesh).344
The events leading up to and including those of 1996 exemplify the contentious
relationship between the Awami League and the BNP and how this contention prevented
Bangladesh from consolidating a functioning government with strong political consensus.
Unable to achieve stability, the BNP-led government fell to the Awami League’s demands
341
John Burns, “Bangladesh Hopes Vote Will Exorcise Violent Past,” New York Times (June 12, 1996).
342
John Burns, “After 21 Years, Bangladesh Party is Returned to Power,” New York Times (June 14, 1996). Also
see “Results of June 1996 Parliamentary Election, Seats Won by District,” found in Craig Baxter, Bangladesh: From
a Nation to a State, 127.
343
John Burns, “3 Ex-Army Officers Seized in 1975 Slaying of Bangladesh Founder,” New York Times (August 14,
1996). The trial for the alleged assassins would be held in the following year, 1997; protests from the opposition
BNP ensued. See John Burns, “Bangladesh Hopes Trial Shows a Nation of Laws,” New York Times (May 4, 1997).
344
Ibid.
116
causing another shift in the balance of power. Hasina’s actions after the 1996 election illustrate
the importance of these shifts and their impact on domestic policy. Here, the instability that
propelled this shift forward, resulted in a shifting focus to issues of the past – overturned
Indemnity Ordinance, trial of Sheikh Mujib’s killers, day of commemoration for Mujib’s death,
and restoration of his status of Bangabandhu. This evidence shows that political instability was
present during 1996 and it does support the hypothesis that argues an environment of political
instability will be more likely to result in delayed, non-legal justice. Though, in this case the
existence of the variable seemed to be moving Bangladesh towards justice.
A New Millennium
Amidst these major changes, the government continued to struggle with consolidating the
democracy. The BNP took on the tactics of the Awami League by boycotting parliamentary
sessions and striking against unfavorable policies. Members vehemently opposed the new
relationship the Awami League was forging with India as well as the investigation into the
murder of Sheikh Mujib. The BNP, under Begum Zia, did not regain power until late in 2001, an
election that resulted in political violence and the death of more than 150 people. The BNP won
202 out of 283 districts; the Awami League would win only 62 parliamentary seats.345
Despite
assurances from UN and European Union (“EU”) election monitors that the elections were ‘free
and fair,’ Sheikh Hasina refused to accept her opponents’ victory. “The people will not accept
the election results that have been overtly rigged,” she said, “So I cannot go against their
sentiment. It was a blueprint implemented to steal the victory of my Bangladesh Awami
345
“Bangladesh Victor is Forming a Government,” New York Times (October 4, 2001).
117
League.”346
Hence, the decisive victory would not bring calm to the political unrest and Sheikh
Hasina would incessantly demand new elections.
The situation under the BNP and Begum Zia would worsen throughout the early 2000s.
Zia and her government faced a deteriorated law and order that was exacerbated by the mounting
contention between the BNP and Awami League, showing the extent of instability in Bangladesh
and lending support to my hypothesis that such instability will make delayed, non-legal justice a
more likely result. In a particularly unsettling turn of events, the government called on the army
to solve a growing crime problem in what would be called “Operation Clean Heart.” 40,000
troops were deployed in October 2002, in an 85-day campaign to root out rapists, extortionists,
and murders. In February 2003 however, an indemnity ordinance was passed by Parliament
barring any civil action to be taken against the soldiers. While the crackdown was welcomed by
a majority of the population, it was the indemnity that was disconcerting; for some it signaled a
drift toward authoritarianism that had already been on the horizon.347
The BNP had already
taken actions to limit freedom of the press by shutting down a popular television station, curbing
media reporting on Parliament and arresting more than two dozen journalists on trumped up
charges of tax evasion.348
These events illustrated more than just the disregard for human rights and the
authoritarian state developing under BNP leadership, but also the clear political instability and
violence that had persisted in Bangladesh after twelve years of democracy, a point reiterated by
human rights lawyer Dr. Kamal Hossain: “The law and order problem is a direct consequence of
346
Celia Dugger, “Leader’s Bitter Rival Appears Set to Win Bangladesh Election,” New York Times (October 3,
2001).
347
Amy Waldman, “Amnesty for Army is Unsettling Bangladesh,” New York Times (March 12, 2003).
348
Ibid.
118
this type of politics. There is no impartial, neutral application of the law. The thinking is, if my
guys murder someone, they get immunity.”349
There are far reaching implications for a society
that experiences an environment of instability like that seen in Bangladesh. In this case, the lack
of stability exacerbated an already deteriorating law and order system. Without this functioning
system, implementing transitional justice would be almost sure to fail; how can justice be applied
to issues decades old when law and order is broken? Henceforth, without political stability, it is
unlikely that a transitioning state will have the institutional capacity to implement a transitional
justice mechanism. This evidence shows that the political stability hypothesis is supported here.
When Zia’s term ended in late October 2006, a caretaker government was sworn in to
administer the next series of elections. However, this was a futile attempt to end the violence
and antagonism that had come to characterize politics in Bangladesh. The opposition boycotted
the swearing in ceremony of interim President Iajuddin Ahmed because of his historical ties to
the BNP and subsequently called for protests and a “nationwide transport blockage.”350
The day
following the ceremony, Awami League supporters clashed with BNP supporters in various parts
of the country, killing 4 and injuring another 300.351
The countrywide blockade would continue
into November further crippling Bangladesh’s economy. In addition to closing the Dhaka Stock
Exchange, “the capital was cut off from the rest of the country…the demonstrators damaged
train carriages and buses at different places of the country.”352
The protesters would not cease
until interim President Ahmed stepped down as caretaker leader ahead of the scheduled January
2007 elections.
349
Quoted in ibid.
350
“President Takes Top Interim Post to Supervise Bangladesh Vote,” New York Times (October 30, 2006).
351
“4 killed, 300 hurt as violence continues,” The Daily Star (October 31, 2006).
352
“Blockade Stops Life in mid-Track,” The Daily Star (November 13, 2006).
119
Ten days prior to the scheduled elections, however, Ahmed declared a state of
emergency, effectively delaying elections. He stated, “It is not possible to hold the elections on
schedule. We need a flawless voter list to ensure that the elections are free, fair and credible.”353
By then, the situation had demanded attention from the international community. The UN, in
particular, threatened to rescind Bangladesh’s earnings from their involvement in peacekeeping
operations: “Should the 22 January parliamentary elections proceed without participation of all
major political parties, deployment of the armed forces in support of the election process raises
questions. This may have implications for Bangladesh’s future role in U.N. peacekeeping
operations.”354
The UN and EU also suspended technical assistance for the upcoming elections.
The British Foreign Office also issued a statement pleading for the political parties to
compromise so that legitimate elections could take place.355
With mounting international and domestic pressure, the Awami League ended the
nationwide blockades and announced that the opposition would take part in the elections that had
been delayed. Meanwhile Ahmed established a council of advisors to guide the election process
and build consensus among the Awami League and BNP. “He is also expected to reform the
election commission, redo the voters’ lists and then set a schedule for the election…”356
In
April, however, the election commission had decided to postpone elections for 18 months “to
353
Quoted in Somini Sengupta, “In Bangladesh, State of Emergency and Election Delay,” New York Times (January
12, 2007). By this time, the UN had suspended its technical support for elections concurrently with the European
Union.
354
Quoted in ibid.
355
The British Foreign Office also issued a statement urging the parties to compromise so that elections could be
seen as “credible, peaceful and universally accepted.” In a statement from the UN, representatives expressed their
concern “that Bangladesh’s democratic advances and international standing will be affected if the current crisis
continues.” Both quoted in ibid.
356
“Bangladesh Opposition Agrees to Take Part in Election,” New York Times (January 15, 2007).
120
prepare a flawless voter list along with photographs of voters.”357
Meanwhile, a state of
emergency was still in effect banning political activity and suspending fundamental rights. The
run-up to the 2008 election would prove to be a tumultuous journey, though it would be a
defining moment for the transitional justice process.
The above evidence reveals the persistence of tensions between Bangladesh’s major
political parties, the Awami League and the BNP. The objection to the interim government and
the subsequent clashes between these political factions left the country in turmoil for more than
two years. The economic situation worsened, hundreds were injured in violent protests and a
state of emergency was issued. In addition to a broken system of law and order, it would have
been highly unlikely for a transitional justice mechanism to have taken root in the midst of this
instability. Therefore, the political stability hypothesis is supported through this evidence.
2008: A Watershed
The interim administration did not announce a date for elections until September 2008,
more than a year after Chief Advisor Ahmed (formerly President Ahmed) began a campaign to
fight political corruption.358
The election was held in two phases on December 24 and 28 of the
same year, a decision that came after a third round of electoral talks between all political parties
and the Election Commission. “The government,” Ahmed stated, “will not hesitate or step back
357
“World Briefing: Bangladesh Elections to Be Delayed at Least 18 Months,” New York Times (April 6, 2007).
358
In July 2007, both Sheikh Hasina and Begum Zia were arrested on charges of tax evasion and misrule that caused
the political instability in Bangladesh to spiral out of control after the January elections were cancelled. The came
after the caretaker government tried to exile both leaders in April in an effort to reshape Bengali politics. See
“Bangladesh Acts Against Leaders of Main Parties,” New York Times (July 11, 2007). The crackdown would
continue into mid-year 2008 and would result in nearly 12,000 people being arrested, a campaign that was started to
“guard against deteriorating law and order and to ensure a peaceful campaign season…” See Somini Sengupta,
“Nearly 12,000 Are Arrested in Roundup in Bangladesh,” New York Times (June 5, 2008).
121
from doing whatever is needed for holding free and fair elections.”359
While the election brought
hope to a country that had yet to see democracy 18 after the fall of authoritarianism, there was
still an atmosphere of anxiety and apprehension. The Daily Star reported on the election day,
“The records are poor for Bangladesh and so are their outcomes. A sharply divided and
bickering political leadership could breed in fractious policies and corruption.”360
Overcoming
this history of upheaval and instability would be the greatest challenge for the new government.
Emerging from the Awami League’s election manifesto was the promise that “trial of war
criminals [would] be arranged.”361
Furthermore, the manifesto provided a direct link to
“terrorism and religious extremism” – characteristics the Awami League had attributed to the
Jamaat – to such trials. The complete point states, “Terrorism and religious extremism will be
controlled with iron hand. Trial of war criminals will be arranged.”362
Implementing war crimes
trials was, therefore, important for establishing good governance and effective rule of law by
rooting out these extremist elements. It was the first time since 1975 that the issue of war crimes
was addressed by a major political figure or group and it became a defining feature of the Awami
League’s campaign to defeat the BNP-Jamaat coalition.
Interestingly, the environment in Bangladesh had not yet stabilized when the Awami
League chose to reignite the transitional justice process. Even in the midst of such instability,
justice can be implemented. Whether or not doing so will lead to an impartial, democratic
process is debatable and not the issue most appropriate to address here. The evidence, therefore,
does not support the hypothesis that political instability is likely to lead to delayed, non-legal
359
“JS Polls on December 18,” The Daily Star (September 21, 2008).
360
Inam Ahmed, “Test of Hope as Polls Today after 7 Years,” The Daily Star (December 29, 2008).
361
“Election Manifesto of Bangladesh Awami League 2008,” available at http://192.217.104.133/~bolalbd/albd3/.
362
Ibid.
122
transitional justice. The aforementioned also shows that transitional justice was only
implemented once the BNP-coalition, including the Jamaat-i-Islami, was ousted from power in
the 2008 election. This shows support for the decision-makers’ culpability hypothesis that posits
transitional justice is more likely to be delayed and take on non-legal forms if the decision-
makers, or in this case political actors, are believed to be culpable in committing the alleged
crimes, a point that will be addressed later on in this chapter as well.
The Awami League – a 14-party alliance – emerged victorious, winning the election in a
landslide victory clinching 261 seats compared to the 30 of BNPs four-party alliance BNPs. The
Jamaat-e-Islami, winning only two seats, was nearly wiped out in their worst election since
independence in 1971.363
More importantly, the 2008 election was the first since 1991 that did
not experience widespread violence: “Reports of violence were few and far between and that too
with less intensity than in the past. Fake voting was almost absent.”364
There were also a record
number of first-time voters and the addition of a “no vote” option allowing voters to express a
vote of no-confidence in the candidates (the percentage was low).365
Not surprisingly, Zia
denounced the vote as “stage-managed and farcical.”366
She said, “By declaring pre-set results,
the Election Commission (EC) has shown the polls did not reflect the public opinion.”367
This
did not prevent the Awami League from forming the government in early January with Sheikh
Hasina at the helm.
363
“Landslide Mandate,” The Daily Star (December 30, 2008).
364
Ibid.
365
Ibid.
366
“Poll Stage-Managed, Not Acceptable: Khaleda,” The Daily Star (December 31, 2008).
367
Ibid.
123
The Return of Transitional Justice
On March 26, 2009, Law and Parliamentary Affairs Minister Shafique Ahmed announced
that the government had decided to try war criminals under the provisions of the International
Crime (Tribunal) Act of 1973.368
“Prosecutor and investigation agency,” he stated, “will be
appointed soon to hold the trial immediately.”369
Because international standards of law had
changed since the act was initially adopted, parliament needed to review the provisions. After
this review, parliament amended the document extending jurisdiction to civilians or groups of
people – arguably paving the way for prosecuting the Jamaat – requiring the addition of a
military judge, affirming the tribunal’s independence and inserting Bengali as the procedural
language.370
The Awami League government faced staunch resistance from the opposition who
described the tribunals as “subservient to government,” questioning its judicial independence.371
Citing criticism from human rights groups such as Amnesty International and Human Rights
Watch, the opposition BNP coalition called for the immediate cessation of the tribunals insisting
that they are flawed.372
The opposition failed to stop the majority from implementing the trials
and on July 26, 2010 the prosecution filed its first petition with the International Crimes Tribunal
for four top Jamaat leaders who had been arrested and charged earlier in the year on committing
368
“War Criminal Trial Under Int’l Crime Act,” The Daily Star (March 26, 2009).
369
Ibid.
370
Morten Bergsmo, “Justice after Decades in Bangladesh: National Trials for International Crimes,” Journal of
Genocide Research (2011), 504.
371
Sumi Khan, Ben Piven and Jeremy Swinarton, “Infographic: Turmoil over Bangladesh Tribunal,” Aljazeera
(June 15, 2013), http://www.aljazeera.com/indepth/interactive/2013/03/201332610941998639.html.
372
Human Rights Watch wrote a letter to Prime Minister Hasina advising her government to include additional
amendments to the 1973 laws. Without such additions, “the process may not meet international fair trial standards
[which] could result in a lack of credibility for the process in Bangladesh and internationally, which could only
benefit those responsible for the horrific crimes committed.” Brad Adams, “Letter to Prime Minister Sheikh Hasina
Re: International Crimes (Tribunals) Act,” Human Rights Watch (July 8, 2009).
124
war crimes in 1971.373
“War records show Jamaat formed Razakar and Al-Badr forces to
counter the freedom fighters of 1971,” The Daily Star reported.374
The records compiled from
the People’s Enquiry Commission in 1993 (see below section on political actors) were also used
as evidence to bring charges against the alleged perpetrators. The trials proceeded on this basis
and are currently still in progress.375
This reveals culpability on the part of the Jamaat, a member
of the BNP-coalition which goes to explaining why transitional justice was not implemented
under BNP leadership throughout this period. This evidence gathered by the People’s Enquiry
Commission supports my hypothesis that culpability on the part of the decision-makers will
more likely result in delayed, non-legal justice. This point will also be explored further later on
in this chapter. However, it is important to note this here for analysis purposes.
Characteristic Political Instability and the Denial of Justice
Despite having emerged from almost two decades of military rule, Bangladesh was
unable to achieve political stability. The hope that was brought by the 1991 election was soon
torn down when Hasina and the Awami League refuted the election victory of the BNP, calling
for protests and demonstrations that would cause the death of hundreds of Bengalis. By the time
the 1996 election was held, the initial hope that the fall of Ershad had brought was forgotten. No
one believed an election would solve Bangladesh’s problems; it was only exacerbating them.
After more fighting – sometimes violent – between the main political opponents and after an
interim administration took control, Bangladesh was finally able to hold elections that were
373
Julfikar Ali Manik and Ashutosh Sarkar, “Int’l Crimes Tribunals Starts Proceedings Today,” The Daily Star (July
26, 2010).
374
Ibid.
375
Currently, 10 people accused of war crimes have been convicted; over a dozen have been charged. One, Abdul
Quader Mollah, was found guilty and sentenced to death. He was executed in late 2013 just before the 2014
elections. “Jamaat Leader Charged with War Crimes in Bangladesh,” The Hindu (December 31, 2013).
125
considered by the international community as a true test of democracy in the country. After
more than thirty years, the Awami League returned to power in 2008.
What is important to observe here is the means by which the end result – the
implementation of transitional justice – came about. The political situation and the events that
characterized it between 1991 and 2009 can be thought of as falling along a bell-shaped curve
like the one drawn below:
What this is meant to illustrate is the clear instability that continued to characterize
Bengali politics. Not once throughout this period did the opposition and ruling party come to a
consensus or compromise on the issues facing Bangladesh. Problems were solved through
boycotts and violent protests which only served to exacerbate the situation. The contention
between the parties became so grave that provisions were made for a caretaker government to
take over the country at the end of each term to ensure elections are administered fairly and with
as little violence as possible. Political instability is therefore, an important factor to consider
when contemplating the instance of transitional justice during this period. It was due to
BNP Election
Victory 1991
Awami League-led
Opposition rejects
polices of BNP
Mass demonstrations
and protests to Zia’s
administration
1996 Boycott of
Elections
Begum Zia
steps down in
favor of
caretaker
BNP Protests
1996 election
results
2001 BNP
victory; Awami
League protests
Caretaker
government 2006-
2008 2008
Election
and Awami
League
victory
Figure 1: Bell-curve showing political instability during the democratic period, 1991 – 2009. Peaks represent
greater levels of instability.
126
instability that the law and order situation deteriorated thereby reducing or limiting the
institutional capacity of the judiciary and other bodies associated with the rule of law. Without
this capacity, these institutions would not have been resilient enough to withstand war crimes
trials. Additionally, the many protests and boycotts following each election victory – a
characteristic feature of the unstable situation – prevented either party from consolidating the
democracy, a necessary feature in establishing domestic transitional justice mechanism. Without
a settlement on the political issues that staunchly divided the Awami League and the BNP, there
was little hope that transitional justice would be implemented in this new democratic period.
The evidence presented in this section supports my fourth hypothesis and shows that the
existence of political instability in Bangladesh during this period can, in part, explain the
persistence of delayed, non-legal justice.
The International and Regional Community
The United Nations
Bangladesh received widespread praise for the success of the 2008 election from the
international community. In a UN period review session on Bangladesh, a number of
delegations in the General Assembly congratulated the country on successfully carrying out free
and fair elections and for forming a democratically elected government. These events, the
delegations commented, “demonstrated Bangladesh’s firm belief in democracy, heralded the
return of democratic rule and constituted an essential element for the democratic transition.”376
376
United Nations General Assembly, Human Rights Council, Report of the Working Group on the Universal
Period Review: Bangladesh, A/HRC/11/18 (October 5, 2009), available from undocs.org/A/HRC/11/18, 6.
127
Furthermore, many delegations reaffirmed Bangladesh’s efforts at protecting and promoting
human rights in compliance with international standards.377
It appeared that the international community had come to accept the 2008 election as the
‘true’ election since Bangladesh returned to democracy in 1991. The UN particularly did not
exhibit the same support in the 2001 elections, for instance, despite its ‘free and fair’ status.
Furthermore, the UN referred to Bangladesh as a transitioning state (see “democratic transition”
in the quote above), which may have had implications for the transitional justice process. By
classifying Bangladesh under the umbrella of transition, it assumes that previous elections,
regimes, and political actions were under the guise of an authoritarian or non-democratic
government. In short, it assumes that Bangladesh had not been democratically transitioning
previously to 2008. Therefore, the status provided by the international community with regards
to Bangladesh may have implicitly paved the way for legitimizing a transitional justice process
because accountability for past crimes is a priority item for a state transitioning from
authoritarianism to democracy – especially those transitioning with UN assistance. Moreover, in
emphasizing the promotion and protection of human rights, the delegations at the periodic review
session may have indirectly lent support to the Awami League’s efforts at implementing the war
crimes tribunals which is well-known issue under the human rights purview. With more
evidence to indicate how this rhetoric impacted Bangladesh’s decision to implement transitional
justice, I would be able to state with certainty that this material shows support for the hypothesis
related to international community involvement – higher levels of involvement will be more
likely to result in a swift implementation of justice characterized by legal mechanisms.
However, such evidence was not found.
377
Ibid 16.
128
While this information is relevant to this particular study, it is still unclear whether this
had any impact on the transitional justice process that was re-established in the aftermath of the
2008 election. It could be said that the international community contributed to the re-institution
of post-conflict justice after the 2008 election.378
Based on the evidence here however, any
involvement on the part of the international community was indirect and did not have play a
particularly poignant role in influencing the institution of transitional justice in Bangladesh
during this period. Therefore, the above information does not lend support the hypothesis related
to international and regional community involvement.
Relations with India
Sheikh Hasina continued to work on bettering relations between Bangladesh and India,
an initiative started under her leadership from 1996 until the BNP victory in 2001 when
movements on this front came to a halt. The Diplomat reported, “The India-Bangladesh
relationship has been on the upswing since Sheikh Hasina came to power in 2009. The improved
relations are largely due to her efforts to stamp out anti-Indian sentiment in Bangladesh.”379
Further illustrating the changing relations was the December 12 signing of the 30 year Ganges
water sharing treaty with India, an issue between the two countries that had festered for 20
years.380
378
The international support for the trials weaned quite quickly after implementation not only because they caused
more violent uprisings in Bangladesh but, also because of flawed rules and procedures that do not take into account
rights of the accused (among other things). It has also been scrutinized by human rights activists for allowing the
death penalty to remain the highest sentence. Many have said the tribunals have become a legal way for the Awami
League to rid Bangladesh of their staunchest opponents – the Islamic fundamentalists – not just through
imprisonment but, through death. See Bina D’Costa, “War Crimes, Justice and the Politics of Memory.” Some is
also the author’s conclusions.
379
Sanjay Kumar, “India’s Growing Ties with Bangladesh,” The Diplomat (February 1, 2013), available at
http://thediplomat.com/2013/02/indias-growing-ties-with-bangladesh/.
380
Rounaq Jahan, “Bangladesh: Promise and Performance,” 25.
129
While the relationship improved, India remained distant compared to its heavy
involvement during the early part of 1970. With this in mind, it is unlikely that Bangladesh’s
large and growing neighbor had an influence on the implementation of transitional justice; no
evidence has been found to support the regional community hypothesis with regards to India and
Bangladesh during this period. Much of the aid that crossed the border from India to Bangladesh
comes in the form of funding for infrastructure and development needs to strengthen the regional
economy, arguably for India’s selfish reasons.381
With the initial violence and backlash felt from
the tribunals’ formation, it is unlikely that India would have approved or support such a
mechanism that can cause more turmoil in the poverty-stricken region. Despite this lack of
support, Bangladesh was able to progress towards implementing a transitional justice process
almost forty years after the alleged crimes were committed.
Political Actors and the Push for Justice
In 1992, the push for justice found a voice among civil society leaders. In an event
particularly relevant to this study, the BNP-backed Jamaat party elected Golam Azam as party
leader in 1992, sparking violent demonstrations in Dhaka. Azam was alleged to have acted
against freedom fighters in 1971 and was branded as a collaborator and war criminal. He left
Bangladesh and moved to Pakistan for a time in opposition of the Liberation War. Hence, when
the vote became widely known activists like Projamna ‘71 demanded he be arrested and tried as
a war criminal. The Awami League and its coalition partners supported these protests and
boycotted parliament for almost two weeks.382
In attempting to prevent Azam from taking
office, the opposition parties called for his arrest and detention “for violating a law barring aliens
381
Ibid.
382
Ibid 123.
130
from holding public office,” claiming Azam had relinquished his Bengali citizenship when he
moved to Pakistan.383
In response, Muslim fundamentalists staged violent strikes in support of
Azam; three people were killed and more than 100 injured.384
The High Court of Bangladesh
eventually ruled in Azam’s favor allowing him to remain in political leadership.
A particularly poignant response to the Azam’s return to politics occurred in 1992 when a
civil society organization led by Jahanara Imam known as Ekattorer Ghatak Dalal Nirmul
Committee (Committee for Resisting Killers and Collaborators of Bangladesh Liberation War)
established mock trials for prosecuting several high-level alleged war criminals. They charged,
convicted and sentenced the suspects to death in absentia.385
The trials, known as the Peoples
Court, occurred after the Nimrul Committee “declared that if the government did not hold trial of
war criminal Golam Azam, the committee would hold his trial in Peoples Court…”386
For
Nimrul, Azam was a symbolic figure of the impunity afforded the criminals of 1971 atrocities.
Azam’s ascension in the political fora would be the impetus for civil society to begin a
substantial movement against alleged war criminals and collaborators. It was his alleged
involvement during the Liberation War as a collaborator that angered the populous. With Azam
in power with the BNP, justice for alleged crimes of 1971 would certainly be forgotten. Political
actors were, in fact, believed to have committed such crimes and with alleged criminals at the
383
“3 Die in Bangladesh Fundamentalists’ Strike,” New York Times (June 21, 1992).
384
Ibid. This organization was under a larger banner called the National Coordinating Committee for Realisation of
Bangladesh Liberation War Ideals and Trial of Bangladesh War Criminals of 1971. See Bina D’Costa, “War
Crimes, Justice and the Politics of Memory,” The Daily Star Magazine (April 1, 2013),
http://archive.thedailystar.net/beta2/news/war-crimes-justice-and-the-politics-of-memory/.
385
Caitlin Reiger, “Fighting Past Impunity in Bangladesh: A National Tribunal for the Crimes of 1971,” 4. Also see
the Committee’s website: http://www.secularvoiceofbangladesh.org/all_about_nirmul_committee.htm.
386
The Committee was comprised of 101 of Bangladesh’s leading intellectuals, artists, journalists, freedom fighters
and student leaders. See “Question 1: Who formed Ekattorer Ghatak Dalal Nimrul Committee, when and why?”
Committee for Resisting Killers and Collaborators of Bangladesh Liberation War of 1971,
http://www.secularvoiceofbangladesh.org/all_about_nirmul_committee.htm..
131
helm of decision-making, the chances for justice were slim. Such an illustration lends support to
the culpably on the part of the decision-makers hypothesis that states such culpability is more
likely to result in delayed, non-legal justice.
The movement would continue into 1993 when the National Coordinating Committee for
the Realisation of the Bangladesh Liberation War Ideals and Trials of Bangladesh War Criminals
of 1971 – the umbrella organization of activists groups calling for justice – announced it would
establish a long-term program aimed at compiling evidence to implicate the collaborators in war
crimes. The People’s Enquiry Commission was established as an 11-member commission
comprised of artists, intellectuals, military leaders, and former politicians. It would be civil
society’s response to the demands that Azam and other war criminals be punished. A report
would eventually be published with the evidence against each accused person including
recommendations for the then-BNP government on how to proceed.387
The call for
accountability and the re-establishment of war crimes had begun, though it would not
immediately gain support of the Awami League.
It was highly unlikely for the BNP to address the war crimes issue of 1971 since it would
mean losing a sizable portion of their coalition. Culpability on the part of the Jamaat, therefore,
was a major factor impeding movement on the justice issue. A large sector of Bengali society
did not accept this stance and there developed a call for instituting justice for Liberation War-era
crimes. Such justice, however, did not occur under the BNP and only began once the Jamaat was
almost completely ousted from parliament, allowing the Awami League to return to power in
2008. In fact, when asked why the demand for Azam’s trial was not raised previously, the
387
“Report on the Findings of the People’s Inquiry Commission on the Activities of the War Criminals and the
Collaborator,” Forum for Secular Bangladesh (March 26, 1994), available at
http://www.secularvoiceofbangladesh.org/Fotoes/Report%20on%20the%20war%20criminals..%A8%A8/Report%2
0on%20the%20war%20criminals.htm. A second report would be published the following year, 1995, and is also
available from the same page.
132
Nimrul Committee responded stating “the movement could not be expanded due to lack of
support from democratic political parties, their unconsciousness and wrong evaluation about the
movement and their acceptance of Jamaat as a friendly force in the anti-autocratic movement.”388
With the support of a major political party, the alleged war criminals and members of Jamaat
were not be tried. This shows the intricate relationship between politics and accountability, not
only with regard to culpability of decision-makers, but also with regard to the other variables
under examination in this study. As we have seen thus far, political instability can prevent or
deter a government from implementing a transitional justice process; the government may
choose peace over justice. We have also seen that regional and international politics can shape a
justice process by either choosing to lend support to or by discouraging a transitioning state from
implementing a process. The actors can also push a transitioning state to implement one form of
justice over another. Here, in the case of Azam and the Jamaat, political actors who can be
implicated in committing alleged crimes can shape justice if they are included as decision-
makers in the process. For instance, Golam Azam, an alleged war criminal, backed by the ruling
BNP, was safe from prosecution. Therefore, decision-makers or political actors who are
culpable in committing mass atrocities are less likely to implement a transitional justice
mechanism without delay, a point illustrated here.
Conclusion
Bangladesh’s return to democracy in 1991 brought hope to the impoverished, deeply
divided society. However, over the next twenty years this hope faded amidst the continued
political violence that had come to characterize the state since it gained independence. The 1991
election, despite being the most free and fair in the country’s history, was not accepted by Sheikh
388
“Question 2: Golam Azam has been living in Bangladesh since 1978. So why you did not raise demand for his
trial in this long period?” Committee for Resisting Killers and Collaborators of Bangladesh Liberation War of 1971.
133
Hasina’s Awami League and the resulting political upheaval would progress into the 1996
elections. Also considered free and fair, these elections brought the Awami League back to
power for the first time since the early 1970s. Begum Zia of the formerly ruling BNP did not
accept the outcome and subsequent boycotts and violent demonstrations commenced as before.
Then, another round of elections was held in 2001 resulting in a BNP victory much to the dismay
of the Awami League who vehemently called for a caretaker government and new elections.
Finally, after a caretaker government was installed for almost two years, a final round of
elections was held in 2008 ushering the Awami League back into power.
As the evidence suggests, political stability had remained elusive even in a new era of
democracy. Each time a political party won a majority of parliamentary seats, the opposition
party immediately questioned the victory and violence ensued. As my stability hypothesis
suggests, we would not expect to see a transitional justice process take root given these
conditions. The lack of institutional capacity and resilience and the inability to gain political
consensus on forming a government due to contentious relationship between the main political
parties are factors to consider. However, such a phenomenon did occur when tribunals were
established for trying collaborators of 1971 war crimes. Though, this should not be used as an
indication of stability. Instead it was despite the instability that transitional justice was
established. Therefore, political instability was certainly a factor contributing to delayed justice
during this period, however, the institution of such a process in the midst of instability can be
further explained by other factors.
Involvement on the part of the international community is one of these factors. While not
explicitly involved, the international community gave credence to implementing post-conflict
justice when classifying Bangladesh as a transitioning state and by recommending it focus on
134
improving human rights, both goals of transitional justice. While I assert that this rhetoric may
have played a role in bringing justice back to Bangladesh, I cannot conclude that this justice was
a direct or indirect result of the UN’s actions and statements. Therefore, the international
community is not a particularly relevant factor to consider during this era since their involvement
was limited to development aid and monitoring missions.
The same holds true for India’s involvement. Relations with India had certainly
improved under Sheikh Hasina – a pro-Indian politician – however, a broken relationship forty
years old would not be fixed overnight. Most of India’s involvement in Bangladesh – which
itself depended on the political party in power – was reduced to development aid for
infrastructure projects and water management. Therefore, the regional community was not a
contributing factor either towards the absence or re-implementation of transitional justice during
this era since the relationship was based upon issues unrelated to post-conflict justice.
Finally, it is important to consider the role of decision-makers and political actors in
developing or stunting development of transitional justice during this era. The Jamaat-i-Islami –
a small member of the BNP coalition – was suspected of collaborating with the enemy during the
Liberation War because of their members’ alleged loyalty to Pakistan and to the Islamic state.
When the BNP formed a coalition in 1991, the Jamaat were one of the obvious choices based
upon a non-secularists stance. In joining the ruling political party, Jamaat members and alleged
collaborators were informally and unofficially granted amnesty for their role in 1971. It was
highly unlikely for the BNP to enact justice on a political ally whose parliamentary seats
numbered close to 20 at the time. Doing so would have crippled the coalition and ultimately the
party. For instance, when widespread protests occurred against the appointment of Golam Azam
to lead the Jamaat, the BNP did not respond. Therefore, the culpability of decision-makers is a
135
factor to consider when contemplating the timing and institution of transitional justice, especially
throughout this period in Bangladesh, because the alleged collaborators were political actors
supported by one of the major political parties and were, themselves, considered decision-makers
with regards to the justice process.
136
CHAPTER 8: SUMMARY AND CONCLUSION
In the words of British politician William Gladstone, “Justice delayed is justice denied.”
For nearly forty years in Bangladesh, justice for Liberation War crimes in 1971 were denied. It
would not be until 2008 that the issue was raised again when the Awami League returned to
power and, with the backing of a large segment of civil society, instituted an ‘international’
tribunal to prosecute alleged criminals. In this study, I have attempted to explain why this
transitional justice process was delayed and why prosecutions were chosen over other
mechanisms for holding these alleged criminals accountable for forty-year old. For a brief
summary of my findings see Table 1 on page 142.
Peace Agreements
I hypothesized, first, that when implemented through a peace agreement, transitional
justice is less likely to be delayed and more likely to take on non-legal characteristics. The only
point in Bangladesh’s history when this variable, peace agreements, was present was during the
immediate aftermath of the Liberation War. I examined two agreements – the Simla agreement
and the Delhi agreement – and found that the accountability issue was not addressed. I
concluded here, that the absence of a transitional justice mechanism in either of these two
agreements contributed to the delay of justice in Bangladesh. I also argued that this could
explain the initial implementation of legal form of justice that was outlined in the International
Crimes (Tribunals) Act, 1973, an assumption derived from established scholarship on the
relationship between accountability and peace agreements.389
389
Leslie Vinjamuri and Aaron Boesenecker, “Accountability and Peace Agreements: Mapping Trends from 1980 to
2006.”
137
Regional and International Community
My second point focused on the regional and international community where I
hypothesized that a high level of involvement from both in transitional justice would make a
delay in implementing such a process less likely and would also make implementation of a legal
mechanism more likely. In the first period under the administration of Mujib Rahman, I
examined the intricacies of India’s involvement as a regional actor. India’s involvement
provided the legitimacy and backing of the transitional justice process that began to take shape in
Bangladesh. Moreover, India shaped the war crimes trials in Bangladesh since it maintained
control over most Pakistani prisoners of war. This was illustrated in India’s decision to transfer
150 prisoners to Bangladesh for trial based on prima facia cases. When India’s support began to
wean, however, the transitional justice process began to fall apart.
Pakistan, as another regional actor, also shaped the process during the first period under
examination. In detaining Bengalis within Pakistan and threatening to prosecute them, Pakistan
was eventually able to force Bangladesh to drop the war crimes trials. It was also able to use its
position as an already established actor in the international fora, to block Bangladesh’s
membership to the UN through the veto power of China, frustrating Mujib’s attempts at gaining
recognition and legitimacy – a move that also illustrates how the international community shaped
transitional justice. I concluded, therefore, that the high level of involvement on the part of the
regional community, specifically India, contributed to the swift implementation of transitional
justice characterized by prosecutions in the initial period of independence. However, the high
level of involvement from Pakistan contributed to the eventual delay of the process.
Furthermore, the high level of indirect involvement on the part of the international community,
namely the UN, also contributed to this end result. In short, I argued that regional and
138
international community involvement contributed to delayed justice in Bangladesh. I also
argued that such involvement may explain the decision to the institute prosecutions in the initial
period of independence.
In the periods following the downfall of Mujib (1975 – 2010) there was no obvious
involvement from either the international or regional community in Bangladesh apart from
development assistance. While relations with India suffered and relations with the Arab world
and Western states developed – most especially under Zia and Ershad – the lack of primary
source evidence led me to conclude the lack of involvement of either the international or regional
community was not a contributing factor to the absence of transitional justice after 1975. It
appears then, that the more involved the regional or international community is in the immediate
aftermath of violent conflict, delayed justice will be less likely and the institution of legal
mechanisms will be more likely. However, if justice is delayed for a significant amount of time,
as was the case in Bangladesh, such involvement will not have a direct impact on transitional
justice.
The Decision-Makers
In addressing the third hypothesis of this study – if decision-makers were culpable in
committing the alleged crimes, delayed, non-legal justice will be more likely – I have argued that
culpability on the part of the decision-makers, particularly leaders in the Jamaat-i-Islami,
contributed to the absence and delay of justice. Based upon documentary evidence, the
applicability of this hypothesis rests within the final period, 1990 – 2009. Here, I was able to
examine the political relationship between the BNP –a pro-Islamic party – and the Jamaat-i-
Islami – a fundamentalist party a part of the BNP-led coalition. In illustrating the Golam Azam
incident in 1992, I discovered that the Jamaat were largely believed to have been culpable in
139
collaborating with Pakistan during the Liberation War in 1971. Golam Azam’s ascension to
power within the Jamaat in 1992 sparked a civil society movement in Bangladesh that began
calling for accountability with regards to these alleged crimes. I concluded that this call was not
heeded by the ruling BNP because of its relationship with the Jamaat. For the BNP to redress the
war crimes issue, they would have lost a sizeable portion of their coalition. Transitional justice
would only return to Bangladesh after the Jamaat had almost been completely ousted from
parliament in 2008. Therefore, decision-makers, or in this case political actors, who are culpable
in committing mass atrocities are less likely to implement a transitional justice mechanism
without delay and are more likely to utilize non-legal forms of justice.
Political Instability
The final hypothesis addressed issues of political instability and predicted that the less
politically stable a transiting state is, delayed justice is more likely to occur. As the most
prevalent variable, political instability was a factor in each of the periods under examination.
Instability in Bangladesh began with the downfall of Mujib in 1975, continued under Zia
Rahman – shown by the mass arrests of 1976, the attempted coup in 1978 and the assassination
of Zia in 1981 – and carried on into Ershad’s military regime as exemplified by his failure to
gain political consensus on elections and government administration. In each of these three early
periods, I examined how this instability, as a symptom of shifts in the balance of power, affected
the domestic agenda in Bangladesh. I found that, in each case, the government’s agenda
priorities shifted further away from issues of the past (i.e. accountability for crimes committed
during 1971) and towards issues of development and security resulting from the natural
progression of time. Even after the military rule came to an end, political instability persisted
illustrated by the 1991 elections and the aftermath; the 1996 elections and subsequent failure to
140
consolidate a government; the 2001 election and the post-political upheaval; and the violence
associated with the 2008 elections.
Implementing a transitional justice process in this atmosphere of uncertainty was near
impossible given the limited capacity of the judiciary and other formal institutions that resulted
from such characteristic instability. Therefore, I concluded that political instability contributed
to the absence of post-conflict justice and to the delay in implementing an accountability
mechanism in Bangladesh for addressing crimes committed during the Liberation War in 1971.
However, this variable does not explain why such a mechanism was implementing in 2008 since
stability had yet to be attained. Nor does it explain why the legal approach was chosen over
other mechanisms. Explaining this particular outcome requires further research into other factors
that may play a role in influencing transitional justice processes.
Recommendations for Further Research
Throughout the course of this research I was able to note the importance of some of these
other factors, though the scope of this study prevented me from taking a closer examination of
them. For example, one of the questions that arises from this study with regards to transitional
justice is, “Does the type of government or system of governance matter and if so, how much?”
It is clear that in the nearly two decades of military rule under the martial law administration of
Zia and then Ershad, there was a complete absence of any attempt to redress crimes related to
1971. However, I found that the two periods under democracy saw the implementation of the
primary legal justice mechanism, trials. More research needs to be done in this area – the
connection between the rule of law and democracy – to determine whether or not such a
phenomena is merely coincidence or if this factor does contribute to a swift implementation of
transitional justice in the immediate aftermath of violent conflict. Such research would also need
141
to consider what and who defines a democracy to understand if transitional justice is an
important element of democratic governance.
Another topic that surfaced in nearly every period is related to Bangladesh’s weak
economy. Since its inception, Bangladesh has been unable to achieve sustainable economic
development despite large amounts of international donor aid. This too, has been a cause of
political upheaval and societal instability throughout the past forty years. Even today,
Bangladesh is considered one of the world’s poorest countries; it remains heavily reliant on
international assistance and its outsourced textile industry to prop up its national income. The
effects these poor economic conditions can have on implementing or attempting to implement a
transitional justice process in a country emerging from war is, in this author’s opinion,
understudied and in need of greater attention.
In a final note, this study found that the call for justice was first raised in the civil society
by a group called Projanma ’71 near the end of Ershad’s rule in the late 1980s. As a new era was
ushered in, in the early 1990s, this movement grew, continuing to give justice a voice in a
country that had appeared to have forgotten about the atrocities of the Liberation War. While the
connection could not be explicitly made through this research, it is important to consider how
civil society can play a role in implementing transitional justice processes. Does involving civil
society make transitional justice more or less likely to be delayed? Does it make legal
mechanisms more or less likely to be implemented? Some authors have discussed the various
roles these actors have in developing transitional justice,390
though more needs to be researched
on how a civil society can contribute to the swift implementation of post-conflict justice and how
these actors can ensure that justice delayed does not become justice denied.
390
See Aaron Boesenecker and Leslie Vinjamuri, “Lost in Translation? Civil Society, Faith-Based Organizations
and the Negotiation of International Norms.”
142
Table 1.1: Summary of findings from 1971 - 2009.391
1971 - 1975 1977 - 1981 1982 – 1991 1991 - 2009 OUTCOME
H1: Peace
Accords
Affirmative
support
No evidence No evidence No evidence Efforts to establish transitional justice did
not come to fruition; no legal framework for
transitional justice allowed for the absence
of justice to persist.
H2:
Regional/Inte
rnational
Community
Involvement
Affirmative
support
Passive
support
Passive
support
Passive support There was an attempt in the immediate
aftermath of the Liberation War to
implement transitional justice under the
legal justice framework (i.e. through trials).
Once support from the international and
regional communities weaned, so too did
the development of transitional justice
processes. The result in the succeeding
periods was an absence of justice.
H3:
Culpability
of Decision-
makers
No evidence No evidence No evidence Affirmative
support
Many members and leaders in the Jamaat-i-
Islami were considered ‘collaborators’ of
the Liberation War. Being under the
umbrella of the BNP-led coalition protected
these culpable parties from prosecution. The
presence of political actors who were
culpable for committing crimes resulted in
the absence of justice.
H4: Political
Stability
Affirmative
support (near
end of
period)
Affirmative
support
Affirmative
support
Affirmative
support
The Government of Bangladesh’s inability
to consolidate a government over the almost
forty years observed resulted in a delay in
justice.
OUTCOME Attempts at
bringing
justice failed.
Absence of
justice.
Absence of
justice.
Initial absence
of justice; 2009
implementation.
391
Affirmative support denotes the factor’s active role in shaping the transitional justice process. Passive support denotes the factor’s presence during the
particular period; however, without documentary evidence, I could not conclude that the factor had an active role in shaping transitional justice.
143
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