© 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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