Thursday, 28 February 2013

Sayedee verdict: some preliminary comments

So, Sayedee has (predictably) been sentenced to death by hanging. I've been having a cursory look through the verdict, available here. It's a fairly big document but one can get a rough idea of what the tribunal is all about by just skimming through the introductory bits - it's peppered with lofty legal lingo (probably sketched by Ahmed Ziauddin and his minion(s) a while ago) but one should not be deterred by that; its purpose is to make sure the casual person is convinced that the people involved are sophisticated lawyers who know what they're doing (didn't Ziauddin say something along these lines in one of the leaked Skype conversations?). So, starting with the introduction, the first thing that captures one's attention is the simplistic vision of the events of 1971 that is presented. The judgment portrays Mujib as essentially declaring independence at his Ramna Race Course speech, something he carefully avoided doing; we learn from Sisson & Rose (the definitive study on the political aspects of the war) that as late as July 1971, the Awami League government in exile was prepared to consider a political agreement with Yahya Khan that did not involve independence of East Pakistan. It was however Khan who was refusing any kind of negotiation with the Awami League. According to Sisson & Rose, it was only in September 1971 that 'Khondikar Mushtaq, reputed to be the leader of the Awami League most inclined to pursue a political settlement, declared that the aim was now "total independence"'. The "independence" of March 1971 was declared by General Zia over clandestine radio - hardly a formal declaration supported by a vast contingent of people. 

Now of course, the court chooses not go into this messy part of the history - how could it, given that the ICT act enables prosecutions for "crimes against peace" (Ghulam Azam is charged for these if I recall correctly), which could only have taken place if Bangla Desh was indeed an independent country on the 25th March 1971. Sisson & Rose, and before them, the important 1972 report by the International Commission of Jurists, refer to the 1971 war as a civil war - an insult to most nationalist Bangladeshis (see e.g. this rant against the ICJ hosted at the ICSF, run by the likes of Ahmad Ziauddin - the man who may well have written large chunks of the verdict we're reading today). The ICJ report states:

"Thus the scene was set for a brutal civil war, in which each side was convinced that the cause they were fighting for was right. The Pakistan army, the Biharis, the Muslim League and the members of the Jamaat-e-Islam were fighting for the unity of an Islamic Pakistan. The Bengalis were fighting for the right to run their own country without interference and exploitation from outside."

Moreover, in the elections of 1970, only about 42% of the population of East Pakistan voted for the Awami League - which was not running on a platform of independence. These subtleties are entirely erased from the memory of the Bengali nationalist narrative. The ICT judgment with ease turns this 42% into 'all people':

War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh. 

The crimes committed against Biharis by nationalist Bengalis are of course entirely ignored by the ICT. Here is the ICJ '72 report again:

There can be no doubt that in many of these towns where there was a substantial Bihari population, the Bengalis turned against the Biharis during the short period they were in control and some terrible massacres resulted. Among the places where this happened were Chittagong, Khulna, Jessore, Comilla, Rangpur, Phulbari, Dinajpur and Mymensingh. In areas where the non-Bengalis were in a majority, as in some of the railway towns, the Biharis turned and attacked the Bengalis. For example, in Paksey nearly all the Bengalis who had not fled were murdered.

The most glaring problem with the general aspect of the tribunal, however, is this. A good number of pages in the judgment are devoted to arguing that the 1973 International Crimes Act still applies and that individuals (such as Sayedee) can still be legitimately prosecuted under it. There is a problem here, however: the 1973 act explicitly says that 

The tribunal shall have the power to try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed in the territory of Bangladesh (...)

The obvious question arises: why are no Pakistani citizens on trial? Even the staunchest hater of collaborators and Jamaat-e-Islaami would recognise that the vast majority of war crimes in 1971 were perpetrated by the Pakistani army. One could say that it is perhaps unrealistic to expect Pakistan to surrender one of its citizens to Bangladesh? However, recall that Abul Kalam Azad was tried and sentenced to death in absentia, and he is moreover reported to have escaped to Pakistan. Almost comically, Ahmad Shafique said the goverment will issue an Interpol warrant on Azad - indicating that the government will not stop at any length to get their hands on the criminals of 1971. That same Shafique is on the record as having stated the following (according to Suzanne Linton, in her important article on war crimes trials in Bangladesh; Criminal Law Forum 2010:21):

On 30 July 2009, at the Second International Conference on Genocide, Truth and Justice in Dhaka, the Hon. Minister for Law, Justice and Parliamentary Affairs categorically stated that there
would be no Pakistanis tried under this law. 

This most of all hints at the sad and disappointing reality of the ICT: it is not about ending impunity (no Pakistani will ever be tried for war crimes - not to mention documented and self-confessed war criminals like Kader Siddique) and it is not about justice (the Biharis are seen by the nationalist Bengali as barely human for their speaking the language of the Other, and their "irrational" desire for a united Pakistan). What could have been a genuine endeavour to shed light on the truth of what happened in 1971 has turned into another exercise in petty political vendettas and perpetuating an infantile one-dimensional narrative of a complex and tragic period in history. 

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