1971 War-Related Trials in Bangladesh

Home , Abdul Quader Molla, Motiur Rahman Nizami, Muhammad Kamaruzzaman

1971 war-related trials in Bangladesh

by Zeeshan Muneer

Research Brief www.cscr.pk Introduction

The 1971 war led to the dismemberment of East Pakistan resulting in the creation of a new Muslim majority state, Bangladesh. The government of the new state immediately accused Pakistan Army and its allied forces, consisting of pro-Pakistan Bengali and Urdu speaking volunteers, of war crimes. A deal between Pakistan, India and Bangladesh secured the safe return of almost 33,000 Pakistan military personnel along with 60,000 civilians, police and state officials to Pakistan. However, pro-Pakistan Bengalis in the new state of Bangladesh were subjected to unfair trials and tribulations. The Rome Statute of International Criminal Court provides a mechanism for trying war criminals and provides safeguards to the accused by ensuring the right of a fair trial without any discrimination. The hanging of Motiur Rahman Nizami, the former JeI-B chief, among others has been condemned by the international community and human right groups who cited political motives behind these hangings and other sentences given by the tribunal. This Research Brief seeks to explain the sentences and trials of alleged war criminals in Bangladesh in the light of International law and the agreement between Pakistan and Bangladesh. It will also shed light on few facts dispelling the Bangladesh government’s claim of 3 million people killed by Pakistan Army.

International Crimes Tribunals

The end of first World War gave rise to the need of establishing an international body to try those which are responsible for committing serious offenses of heinous nature amounting to war crimes and crimes against humanity. After the Second World War, two ad-hoc tribunals were established namely the International Military Tribunal, Nuremberg which prosecuted German leaders and International Military Tribunal for the Far East in Tokyo which prosecuted Japanese leaders. The United Nations Security Council (UNSC) established another two ad-hoc tribunals in the early 1990s. The International Criminal Tribunal for Former Yugoslavia was created in 1993 to investigate war crime in former Yugoslavia. Following the Rwandan Genocide, International Criminal Tribunal for Rwanda was created in 1994. These tribunals which were established to investigate war crimes necessitated the establishment of International Criminal Court (ICC). On 17th July 1998, the Rome Statute of International Criminal Court was adopted. The Rome Statute of International Criminal Court was adopted on 1 July 2002 and the International Criminal Court was formally established. In 2009, the International Criminal tribunal for Bangladesh was established to prosecute suspects for alleged genocide committed by Pakistan Army in 1971 war.

International Crimes Tribunal (ICT) Act 1973 (Bangladesh)

Soon after its creation, the Bangladesh government passed International Crimes (Tribunals) Act of 1973. The important features of the Act are as follows:-

1. The Act called for prosecuting any individual or member of an armed, defense or auxiliary forces irrespective of their nationality who committed crimes against humanity, genocide, mass rapes etc.

2. The Act authorized the government to setup a tribunal or tribunals, each consisting of a Chairman and not less than two and not more than four members.

3. The Act authorized the tribunal to try any accused in absentia if there is a strong reason to believe that such person or persons will conceal themselves from appearing before the tribunal. However, the tribunal may appoint a defense counsel on behalf of the person or persons being tried in absentia.

4. The Act gave the tribunal all those powers which are normally enjoyed by the criminal courts in the administration of justice.

5. The Act provided the right of self-defense to the accused by enabling him or her to appoint a defense counsel.

6. The Act gave extraordinary powers regarding the rules of evidence. It authorized the tribunal to deviate from the normal rules of procedure and adopt to the greatest possible extent expeditious and non-technical procedure.

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7. Any person convicted by the tribunal will have the right to appeal against the sentence in the Supreme Court of Bangladesh.

8. The Act provided that the provisions of the Criminal Procedure Code and the Evidence Act of Bangladesh are not applicable on the tribunal.

Amendments in International Crimes Tribunal's Act of 1973

The Haseena Wajid government found that the ICT Act of 1973 had many weaknesses and decided to bring amendments in the Act to bring it up to date and in line with the modern standards of Human Rights. Three main amendments were brought in the Act which are as follows:

1. The amendment enabled the ICT to charge and place on trial an entire organization on trial irrespective of the individuals who did not take any part in the alleged war crimes.

2. Unlike the original ICT Act, the amendment gave the right of appeal to the prosecution to appeal against the acquittal or any other sentence awarded by the tribunal to the accused.

3. The appeal lodged by the prosecution or the accused had to be disposed of by the Supreme Court within 60 days from the first date of filing appeal.

International Crimes Tribunal (Bangladesh)

Sheikh Haseena Wajid, the leader of ruling Awami League party, pledged before the 2008 general elections that once in power, she will try those responsible for alleged war crimes during 1971 war. After gaining the victory, Haseena's government established an International Criminal Tribunal (ICT) for Bangladesh. Prior to that, the United Nations Development Program offered its full support to the Bangladesh government on the tribunal's formation. On March 25, 2009, the government of Bangladesh voted to try war criminals according to the ICT Act of 1973 with amendments in the Act itself. The prominent amendment was that a political party that had resisted the calls for the creation of Bangladesh, could be tried on the same charges as individuals. On 25th March 2010, the Bangladeshi government announced the formation of a tribunal with a bench consisting of three judges. Uptill now, 52 individuals have been indicted or tried as suspects for alleged war crimes and crimes against humanity. Six of them have been executed so far.

3 www.cscr.pk List of People Tried and Convicted by ICT No Name Verdict/Status 1 Moulana Abul Kalam Azad Sentenced to death by hanging on 21st January 2013. He was tried in absentia 2 Delowar Hossain Sayeedi Sentenced to death by hanging on 28th February 2013 3 Professor Ghulam Azam Sentenced to 90 years imprisonment on 15th July 2013. He died in October 2014 4 Md. Abdul Alim Sentence to imprisonment for life till natural death on 9th October 2013 5 Ashrafuzzaman Khan [absconded] Sentenced to death by hanging on 3rd November 2013. He was tried in absentia. 6 Chowdhury Mueen Uddin [absconded] Sentenced to death by hanging on 3rd November 2013. He was tried in absentia. 7 Zahid Hossain Khokon Sentenced to death by hanging on 13th November 2014 8 Md. Mobarak Hossain Sentenced to death by hanging on 24th November 2014 9 Syed Md. Qaiser Sentenced to death by hanging on 23rd December 2014 10 Azharul Islam Sentenced to death by hanging on 30th December 2014 11 Moulana Abdus Sobhan Sentenced to death by hanging on 18th February 2015 12 Md. Abdul Jabbar Engineer Sentence to imprisonment for life till natural death on 24th February 2015. He was tried in absentia. 13 Md. Mahidur Rahman Sentence to imprisonment for life till natural death on 20th May 2015 14 Md. Afsar Hossain Sentence to imprisonment for life till natural death on 20th May 2015 15 Syed Md. Hachhan Sentenced to death by hanging or shooting on 9th June 2015. He was tried in absentia. 16 Md. Forkan Mallik Sentenced to death by hanging on 16th July 2015 17 Sheikh Sirajul Haque Sentenced to death by hanging or shooting on 11th August 2015 18 Khan Akram Hossain Sentenced to imprisonment for life till natural death on 11th August 2015 19 Abdul Latif Talukder He died in July 2015 20 Md. Obaidul Haque Sentenced to death by hanging on 2nd February 2016 21 Ataur Rahman Sentenced to death by hanging on 2nd February 2016 22 Shamsuddin Ahmed Sentenced to death on 3rd May 2016 23 Gazi Md. Abdul Mannan [absconded] Sentenced to death on 3rd May 2016 24 Nasiruddin Ahmed alias Md. Nasir alias Captain Sentenced to death on 3rd May 2016 ATM Nasir [absconded] 25 Md. Hafizuddin [absconded] Sentenced to death on 3rd May 2016 26 Md. Azharul Islam [absconded] Sentenced to imprisonment for life on 3rd May 2016 27 Mohibur Rahman alias Boro Mia Sentenced to death by hanging or shooting on 1st June 2016 28 Mujibur Rahman alias Angur Mia Sentenced to imprisonment for life on 1st June 2016 29 Md. Abdur Razzak Sentenced to imprisonment for life on 1st June 2016 30 Advocate Md. Shamsul Haque Sentenced to imprisonment for life on 18th July 2016 31 S.M. Yusuf Ali Sentenced to imprisonment for life on 18th July 2016 32 Md. Ashraf Hossain [absconded] Sentenced to death on 18th July 2016 33 Professor Sharif Ahamed alias Sharif Sentenced to imprisonment for life on 18th July 2016 4 www.cscr.pk

34 Md. Abdul Mannan [absconded] Sentenced to death on 18th July 2016 35 Md. Abdul Bari [absconded] Sentenced to death on 18th July 2016 36 Harun [absconded] Sentenced to imprisonment for life on 18th July 2016 37 Md. Abul Hashem [absconded] Sentenced to imprisonment for life on 18th July 2016 38 Md. Sakhawat Hossain Sentenced to death on 10th August 2016 39 Md. Billal Hossain Biswas Sentenced to imprisonment for life on 10th August 2016 40 Md. Lutfor Morol He died on 6th May 2016 during trial 41 Md. Ibrahim Hossain alias Ghungur Ibrahim Sentenced to imprisonment for life on 10th August 2016 [absconded] 42 Sheikh Mohammad Mujibur Rahman alias Mu- Sentenced to imprisonment for life on 10th August 2016 jibur Rahman [absconded] 43 Md. A. Aziz Sardar son of late Ful Miah Sardar Sentenced to imprisonment for life on 10th August 2016 [absconded] 44 Abdul Aziz Sardar son of late Ahmmad Sardar Sentenced to imprisonment for life on 10th August 2016 [absconded] 45 Kazi Ohidul Islam alias Kazi Ohidus Salam [ab- Sentenced to imprisonment for life on 10th August 2016 sconded] 46 Md. Abdul Khaleque Morol [absconded] Sentenced to imprisonment for life on 10th August 2016

List of People Who Have Been Executed No Name Date of Execution Party Affiliation 1 Abdul Quader Molla 12th December 2013 Jamaat-e-Islami 2 Muhammad Kamaruzzaman 11th April 2015 Jamaat-e-Islami 3 Ali Ahsan Mohammad Mojaheed 22nd November 2015 Jamaat-e-Islami 4 Salahuddin Quader Chowdhury 22nd November 2015 Bangladesh Nationalist Party 5 Motiur Rahman Nizami 11th May 2016 Jamaat-e-Islami 6 Mir Qasim Ali 3rd September 2016 Jamaat-e-Islami

5 www.cscr.pk Following are the few prominent figures which have been tried by the ICT.

1. Abdul Quader Molla

Abdul Quader Molla, the former assistant secretary of JeI-B, was sentenced to life imprisonment by the ICT Bangladesh on February 5, 2013. He was accused of murdering more than 300 people and was convicted on five out of six counts of war crimes. His conviction was challenged by various groups in Bangladesh who called for awarding Molla a death penalty. However, the Supreme Court of Bangladesh (SCB) overturned the life penalty and imposed the death penalty. Quader was the first one to be executed for events related to the 1971 war on 12th December 2013.

2. Motiur Rehman Nizami

Nizami was awarded death sentence by the tribunal for alleged war crimes committed during the 1971 war on October 29, 2014. He was accused of being directly involved in the killings and rapes which were purportedly carried out by Pakistan Army with the help of allied militias. He was a prominent leader of JeI-B and his sentence was condemned by international community and human rights groups. Nizami was the fifth opposition leader to be hanged for alleged war crimes on 11th May 2016.

3. Abul Kalam Azad

Abul Kalam Azad, a prominent figure in Pakistan and former member of JeI-B was awarded death sentence in absentia by the ICT in Bangladesh in January 2013. Like others, he was also accused of being involved in “genocide, rape, abduction, confinement and torture”. His sentence was against all the principles of fair trial and justice.

4. Muhammad Qamar-uz-Zaman

On May 9, 2013, Mr. Qamar was convicted and given death penalty on charges relating to alleged crimes against humanity. He was executed on April 11, 2015. He was a prominent member of JeI-B.

5. Chowdhury Mueen-Uddin

On November 3, 2013, the International Crimes Tribunal sentenced him to death for alleged war crimes which were committed by him during the 1971 war. His sentence received the similar response as that of others.

6. Delawar Hussain Sayeedi

Delawar Hussain Sayeedi, the former JeI-B chief, was sentenced to death on February 28, 2013. He was charged with alleged war crimes and crimes against humanity. His conviction resulted in country-wide protests. Consequently, the SCB overturned his sentence and awarded him imprisonment for life.

7. Ghulam Azam

The International Crimes Tribunal awarded Azam was sentenced to 90 years in prison on July 15, 2013 after he was found guilty of mass murder and rape during 1971 war. However, he died of a stroke less than a year later.

8. Ali Ahsan Mujahid

Ali Ahsan Mujahid was hanged on November 22, 2015 after he was sentenced to death by ICT on the charges of alleged crimes against humanity.

6 www.cscr.pk 9. AKM Yousuf

AKM Yousaf was another prominent JeI-B leader who was imprisoned for alleged crimes related to those committed during 1971 war. He died during the trial in prison.

10. Mir Qasim Ali

Mir Qasim Ali, a prominent JeI-B leader, was sentenced to death on November 2, 2014 by the ICT. The SCB recently rejected his last attempt to overturn the death penalty. He was hanged to death on 3rd September 2016.

11. Salahuddin Quader Chowdhury

The Bangladesh Nationalist Party leader was sentenced to death by hanging on 1 October 2013. He was hanged on 22 November 2015. Salahuddin is the first and only non-Jamaat leader based on ICT verdict.

Legal Opinion on ICT trials in Bangladesh

The ICT has been offered assistance by the UNO and other international jurists to ensure the impartiality and the right of fair trial of all accused persons which has been refused by Bangladesh government. Jurists from across the globe have expressed deep reservations on the manner in which the trials are being conducted by the ICT. The trial of accused in absentia has been considered against the basic principles of justice. In a case when the accused is not present, the courts do not carry out trial. Even if the courts do so and announce their verdict in the absence of the defendant or the accused, the accused when captured or voluntarily returns, is entitled to have the verdict put aside and to be tried in his presence, a right which is not given in trials conducted by the ICT.

International law bodies and NGOs, including those which support the ICT, have requested the Bangladeshi government to abjure the death penalty. However, the government has refused to consider these requests and has already hanged several JeI-B leaders on counts of genocide and murder. The issue of death penalty came to the limelight in the case of Abdul Quader Molla, who was the first defendant to be executed. He was actually sentenced to life imprisonment by the tribunal but this sentence was challenged by the prosecution in SCB which overturned the sentence and awarded death penalty to the accused. It is a long-standing custom that prosecution should not be involved in sentencing issues and in this case, the prosecution had no right of appeal. The amendment of International Crimes Tribunal Act of 1973 enabled the prosecution to appeal against any sentence of the tribunal. This amendment is a violation of principles of justice.

Quader case also demonstrated that the tribunal, as well as the SCB, are very much vulnerable to the public pressure. The country-wide protests in favor of awarding death sentence to Molla and the similar verdict by the Supreme Court raised questions about the impartiality of the tribunal and the SCB. Instead of defending the tribunal's right to decide an appropriate sentence, Bangladeshi government passed an amendment with retrospective effect depriving the convict of a legitimate expectation that his sentence would not be increased.

Two basic principles of justice were violated in Molla case. First, tribunal's decision is directly challengeable in Supreme Court. In the case of tribunal filing an appeal against the sentence, the accused would have no opportunity to challenge the decision of the Supreme Court. This was enough for the Supreme Court to reconsider its verdict of overturning the life sentence and awarding the death penalty in this case. There is another international standard that death penalty of the accused should not be executed until the prisoner has had an opportunity to ask for mercy from the President or other relevant authority. Abdul Quader Molla was afforded no such opportunity.

The amendment in ICT Act of 1973 which enabled to put an entire organization on trial for crimes related to 1971 war is also a violation of principles of justice. Acts of individuals cannot be made a justification to try the entire organization. This amendment indicated that the government of Bangladesh has political motives behind these trials and want to clamp down on the opposition on the pretext of trying war criminals. After WWII, the tribunal's established to try war criminals did not try the entire German or Japanese army, air force or navy rather it tried individuals who were involved

7 www.cscr.pk in crimes against humanity. This amendment has increased pressure on JeI-B and has resulted in the arrest and hangings of its several top leaders.

Condemnation by International Community and Human Rights groups on ICT trials

The government of Bangladesh started prosecuting the alleged war criminals in 2010. The initiation of these trials after almost four decades from the end of 1971 war have increased tensions between Pakistan and Bangladesh. So far, more than two dozen prominent leaders and activists from various political parties in Bangladesh have either been hanged or sentenced to life imprisonment by the tribunal. The human rights groups all over the world have condemned the executions and have labeled these trials politically motivated.

The hanging of Motiur Rehman Nizami hampered the relationship between Bangladesh and Turkey who recalled its ambassador from Dhaka. Amnesty International released a statement in which it said that the trials of JeI-B leaders failed to meet the international standards. In response to this statement, the Bangladesh government sent a letter to Amnesty's headquarters in London and called the comments by human rights group as “intolerable”. The Amnesty responded to this letter by stating that as a human rights group, it cannot distance itself from the ICT trials in Bangladesh and cannot turn a blind eye towards the unfair practices of such trials.

Alex Carlile, senior British lawyer and a member of House of Lords, also made his concerns public about the unfair trials. Commenting on ICT trials in Bangladesh, Carlile said, “The ICT has a history of following some extraordinarily improper procedures and there were clear examples of its judgments having been written by people who had no connection with the tribunal.”

Various media outlets in Bangladesh exposed the unfair practices in these trials. As a response, the courts in Bangladesh took strong action against these outlets. These actions were condemned by media watchdogs from around the globe.

The ICT trials in Bangladesh in the light of 1974 Tripartite Agreement between Pakistan, India and Bangladesh

Humanitarian problems arose in the wake of 1971 war needed immediate attention. The relationship between Pakistan and India were badly damaged as a result of this war and Pakistan refused to recognize Bangladesh as an independent state. The volume of the humanitarian crises forced all these nations to set aside political differences and formulate a strategy to end this crisis. As a first step, Pakistan and India signed Simla Agreement on 2nd July 1972 which effectively ended all the hostilities between the two states. The Simla Agreement was welcomed by Bangladesh. In April 1973, India and Bangladesh proposed that the issue of detained and stranded persons should be resolved on humanitarian considerations through simultaneous repatriation of all those persons except those Pakistani prisoners of war (POWs) who are accused of committing alleged war crimes.

An agreement was signed between Pakistan and India in Delhi in August 1973 to solve this crisis. The repatriations commenced in September 1973. Pakistan did not grant recognition to Bangladesh which hindered these repatriations. Under pressure from international community and the urgency to resolve the humanitarian crisis, Pakistan granted recognition to Bangladesh and the tripartite discussions commenced to resolve the issue of POWs and other persons stranded in the three countries. On April 9, 1974, a tripartite agreement was signed which ensured the safe return of all the persons stranded in the three countries. Bangladesh also agreed to return those 195 Pakistani soldiers who it intended to try for war crimes in ICT it established under the 1973 Act.

The establishment of ICT for war criminals after four decades is a violation of the tripartite agreement between Pakistan, India and Bangladesh. The Sheikh Haseena Wajid government seems committed to carry on the trials despite worldwide condemnation and concerns. These trials are also exacerbating the feelings of hatred among young Bengalis which will result in the poor relationship between the Pakistan and Bangladesh which are already not very warm. The ICT trials in Bangladesh are politically motivated. The Haseena Wajid government is using these trials to eliminate the opposition.

8 www.cscr.pk Factual arguments dispelling the myths of genocide in 1971 War

Bangladesh came into being in December 1971 after almost a year-long armed struggle against the Pakistani government. The separation movement was supported by India, which trained separatist forces and armed them to fight against the Pakistani military and security forces which were present in former East Pakistan to restore peace and order. The first Bangladeshi government claimed that during the 1971 war, the Pakistan Army and its allied forces committed genocide of ethnic Bengalis. They put a figure of 3 million Bengalis killed in addition to a quarter of a million women raped. This official view from Bangladesh government has infused extreme hatred in the hearts of Bangladeshi citizens against Pakistan and has resulted in cold relations between the two states eversince.

Several impartial observers and scholars including the Bengalis who supported separation from Pakistan have challenged these figures presented by Bangladeshi nationalists. Sarmila Bose, an Indian scholar, carried out a case by case body count in her book “Dead Reckoning” and estimated that between 50,000 to 100,000 people were killed on all sides including Bengalis, Biharis, West Pakistanis and others during the 1971 war. She refuted the claim that 3 million Bengalis were ethnically cleansed under a well-planned strategy by Pakistan Army. She also found that no official or unofficial order was given by any officer of Pakistan Army which encouraged the soldiers and junior officers to kill Bengalis.

Dr. M. Abdul Mumin Chowdary, a Bengali nationalist, also challenged the official figure of 3 million people killed in 1971 war by the Pakistan Army. In his publication, “ Behind the Myth of 3 Million”, he challenged this falsehood. Citing reliable and authentic sources, he put the number of total Pakistan Army, Air Force and Navy personnel stationed in East Pakistan to be 40,000 in 1971 and not 93,000 as widely believed. Like Bose, he also stated that the sole purpose of Pakistan Army and other forces was to defend the country and to fight the insurgency. According to him, after the war, the new de facto government offered 2000 Taka to every family that suffered a loss of life and that only 3000 families claimed compensation. Had there been 3 million Bengalis dead, a lot more families would have come forward.

Both these writers have also pointed a fact which is sidelined by many anti-Pakistan propagandists. They have cited the atrocities which were committed by Mukti Bahini. The acts of murder, rape and pillage which were carried out by Mukti Bahini in which thousands of Bengalis , Urdu-speakers and West Pakistanis were the target were mentioned by these two writers. Hamoodur Rehman commission which was set up by the Pakistani government to figure out the causes of East Pakistan debacle and investigate the alleged atrocities committed by Pakistan Army put the number of killing from all nationalities to be 25000. It is pertinent to mention that this Commission is considered to be one of the most impartial commissions in the history of Pakistan.

The Bangladesh government has never provided any concrete evidence to support its claims. This is clear from the fact that the ICT which is set up to try the alleged war criminals have been granted the special power regarding the rules of evidence. The tribunal can rely on photos, newspapers and videos as evidence against the accused. Normally, these are not acceptable as evidence in criminal courts. Had there been concrete evidence available, normal rules of procedure would have been enough to be used by the ICT in its trials against the accused.

Conclusion

It is the responsibility of the Bangladeshi government to honor the 1974 Tripartite Agreement in full spirit. Punishing people, after more than four decades, through a tribunal which is condemned by international human groups will not help Bangladesh in the coming years. The verdicts of the tribunal will hamper the Bangladeshi government’s vision of making Bangladesh ‘Sonar Bangla’ (Golden Bengal) and can polarize the country towards a civil war.

9 www.cscr.pk References

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Zeeshan Muneer has completed his LLB from Punjab University and a degree in International Relations from National Defense University Islamabad. He has a deep interest in international affairs and International Humanitarian Law. He is employed as a Research associate in CSCR and is part of CSCR Research Team.