I read with interest the article published recently in the Daily Star in Bangladesh in which the writer Tureen Afroz took issue with the open letter that I sent to the Honorable Prime Minister Sheikh Hasina Wajed in which I questioned the decision of the government of Bangladesh to revive the International War Crimes Act, 1973 and prosecute persons accused of crimes against humanity and genocide committed during the war of 1971. Whilst I accept that the writer has the right to express her opinion, I cannot agree with the general dismissive tone of her remarks, and I consider some of the points in the article to be incorrect and misleading. The writer stated unequivocally that under international legal norms and practices to manipulate or influence the domestic trial of a national court would be deemed as interfering in the internal affairs of the state. The comment serves as a direct accusation that I am violating these norms and practices by my writing to Sheikh Hasina, and that as a diplomat I ought to be a practitioner of international law and therefore aware of such matters. This raises two points of contention. First, diplomacy and law are two very different fields of practice and it is simply wrong to expect a diplomat to possess a practitioner's knowledge of international criminal law. I would expect the writer to appreciate the fine distinction between the two disciplines. In my letter I was petitioning the prime minister in my capacity as a former diplomat serving my country in Bangladesh. Therefore, my call to release Professor Ghulam Azam can only be interpreted in a political, humanitarian and historical context. Second, the writer should be aware that Article 19 of the Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression and that this right includes the freedom to hold opinions without interference and to seek, receive and impact information and ideas through any media and regardless of frontiers. In this regard I am entitled to voice my opinion to the government. In fact, many others have voiced their concerns over the trials taking place at the Bangladesh International Crimes Tribunal, not least members of the United States Congress and Senate, and members of the UK House of Lords, Human Rights Watch, Amnesty International, the International Bar Association War Crimes Committee and the International Center for Transitional Justice, all of whom have staunchly criticized the legislative framework of the Tribunal. Furthermore, as I have subsequently learned, the United Nations Working Group on Arbitrary Detention, earlier this year, termed the process of the Tribunal as arbitrary and in breach of international law due to the wholesale abandonment of human rights protection. I do not consider that I have acted in breach of any legal principle of diplomatic custom by voicing my concern. In fact, I would venture further and state that I have a moral obligation to do so and would invite other members of the international community to do the same. This is not a matter over which the government of Bangladesh can prevent comment. It is admirable that the government of Bangladesh has attempted to initiate a process aimed at bringing justice to the victims of the 1971 conflict. However, it is with great sadness that I must point out that this process has very little to do with justice or with the victims. This is a highly politicized process that is solely directed at members of the political opposition. When one talks about justice and accountability in the context of Bangladesh, it is important to identify what is meant by that very broad term. This broadly stated concept should mean that an international judicial process is established, sufficiently funded and mandated to try cases of those bearing the greatest responsibility for crimes committed during the 1971 conflict. Moreover, when one talks of those responsible, it is important to understand what is meant in this regard as well. In this context it is vital for all those responsible to include members of the Pakistan and Indian military as well as civilians and auxiliary forces that fought on either side of the conflict. It is important to question what the relevant authorities have done to investigate the crimes committed by those on all sides of the conflict and more important whether the Bangladesh government would or could do that. The position of the government is that only those who fought for liberation were victimized. This is not a viewpoint that has any proper basis. Unless there is a system by which everyone bearing criminal responsibility, whether he or she opposed independence or worked for it, can be brought to justice, the whole process will have little meaning. A criminal justice process must serve the end of justice and not politics. Article 29 of the Rome Statute for the International Criminal Court does indeed provide for the non-applicability of the statute of limitations. However, it is important to note that where a law is created retroactively, it will apply the definition of the offense extant at the time of the breach. Therefore, the Bangladesh International Crimes Tribunal must apply the definitions of crimes against humanity and genocide in place in 1971 when trying any accused person. At the moment, the Tribunal has opted to apply its own definition of laws retroactively. This is proving to be, as it was feared, a recipe for injustice and confusion. In my letter it was mentioned that Sheikh Mujib issued several laws including the war crimes law by which 195 Pakistani military officers were convicted. The law did not include any Bangladeshi civilians or politicians. There was also the law of collaborators under which around 100,000 people were arrested and some of them were tried. However, when Sheikh Mujib found that very few witnesses and little evidence could be found against the accused he forgave them by declaring a general amnesty. He also forgave the Pakistani officers and issued his famous statement: “I want the world know how Bengalis can forgive.” In this way, he solved the problem of war crimes. It is strange to find the issue raised again after 40 years and people accused who were not included on either list. In my next article, I will shed more light on these politically motivated trials.
— Dr. Ali Al-Ghamdi is a former Saudi diplomat who specializes in Southeast Asian affairs. He can be reached at [email protected]
