II. A Short History of Impunity

Impunity for Crimes in the 1971 War

Grave human rights violations committed with impunity marked the events that accompanied the separation of East and West Pakistan and the establishment of Bangladesh as an independent nation. In the 1971 war Pakistani forces and their collaborators indiscriminately killed civilians and engaged in large-scale torture, rape, and destruction of villages and towns. Many of the victims were activists in the Awami League (the largest political party in East Pakistan), members of the Hindu population, students, and intellectuals. Bengali "freedom fighters"[1] engaged in revenge killings of Pakistani soldiers and militia members, and mobs of Bengali civilians carried out violent attacks on the Urdu-speaking Bihari population and other non-Bengalis.Persecution of Biharis continued after independence and many were dispossessed of their houses and property.[2]

Estimates of the number of people killed in connection with the 1971 war vary greatly from a Pakistani government commission's calculation of approximately 26,000 to figures of about 3,000,000 cited by Bangladeshi historians.[3] Rape occurred on a large but undetermined scale (figures of 200,000 to 400,000 victims are often mentioned in the literature, though some scholars claim that these figures are seriously inflated).[4] Millions, many of them Hindus, fled the country.[5]

In a study from 1972, the Secretariat of the International Commission of Jurists concluded:

In addition to criminal offences under domestic law, there is a strong prima facie case that criminal offences were committed in international law, namely war crimes and crimes against humanity under the law relating to armed conflict, breaches of Article 3 of the Geneva Conventions 1949, and acts of genocide under the Genocide Convention 1949 (Part IV).[6]

Following the war, Bangladesh's first government moved toward holding members of the Pakistan army to account for international crimes, including genocide, crimes against humanity, and war crimes, while establishing a separate process to prosecute and bring to trial those who had collaborated with the Pakistan army and engaged in acts such as murder and torture.

Under the Bangladesh Collaborators (Special Tribunals) Order, issued in January 1972, several thousand people were charged, and some were convicted. However, in 1973 the government announced clemency to those that had not been accused of murder, rape, or arson. In reality, most of those charged or convicted were released. All remaining suspects and convicts were freed on December 31, 1975, when the 1972 order was repealed under the rule of Gen. Ziaur Rahman.[7]

In 1973, parliament adopted the International Crimes (Tribunals) Act. Following a government investigation, 195 members of the Pakistan army were accused of war crimes.[8] However, the soldiers had been transferred to the custody of the Indian government in 1972 and no one was ever convicted under the law.[9] As a result of an agreement in April 1974 between Bangladesh, India, and Pakistan, the 195 prisoners were released and allowed to return to Pakistan.[10]

In Pakistan, President Zulfiqur Ali Bhutto had already in December 1971 established a commission of inquiry headed by Chief Justice Hamoodur Rahman. The commission recommended that:

[A] high-powered Court or Commission of Inquiry be set up to investigate into persistent allegations of atrocities said to have been committed by the Pakistan Army in East Pakistan during its operations from March to December, 1971, and to hold trials of those who indulged in these atrocities.[11]

The recommendation was ignored and no one is known to have ever been brought to justice in Pakistan.

For almost four decades, "freedom fighters" and civil society groups in Bangladesh have repeatedly demanded that those responsible for the atrocities during the 1971 war be held to account. Successive governments have failed to respond to demands for the establishment of an official inquiry to establish responsibility for the crimes. Instead, alleged perpetrators have been allowed to live freely in Bangladesh, as well as in other parts of the world, and have come to hold positions of prominence and political influence. In fact, the country's major political parties have tried to win the support of the anti-liberation forces to create political alliances. In April 2008, the War Crimes Facts Finding Committee, a respected research organisation, released lists of 1,597 persons it claimed were responsible for atrocities, including a number of senior politicians belonging to Jamaat-e-Islami (which as a party opposed independence) and the Bangladesh Nationalist Party (BNP, founded 1978).[12] Bangladesh has also failed to bring the perpetrators to justice because of the pressure from countries with which Bangladesh has close political and economic ties.[13]

In January 2009, the Bangladesh parliament adopted a resolution requesting the government to take immediate action "to try the war criminals."[14] In March, Law Minister Shafique Ahmed announced that the trials would be held under the International Crimes (Tribunal) Act, 1973.[15] The Act does not require Bangladesh's regular criminal procedure and evidence laws to be applied.[16] This raises concerns that the trials may not meet international fair trial standards and may be subject to political influence.[17] Death sentences may be handed down.[18]

Impunity since Independence

The political situation in the decades since the end of the war has largely been unstable. The country has been governed for extended periods under martial law and/or states of emergency, during which fundamental rights have been set aside.

In spite of the presence of many well educated lawyers and judges, the criminal justice system has been marked by arbitrary and politically motivated arrests, regular use of torture in places of detention, judicial proceedings that fall short of international standards, inhumane prison conditions, and frequent imposition of the death penalty. The authorities have failed to protect ethnic minorities from evictions and violent attacks; police and other security forces have used excessive and often deadly force to break up strikes and demonstrations; and law enforcement officials have been involved in hundreds, if not thousands, of extrajudicial executions. This has been documented by domestic and international human rights organizations,[19] the media,[20] foreign governments,[21] and several of the United Nations special procedure mandate holders,[22] which have also repeatedly expressed their concerns about the situation.

The longstanding problem of killings in custody assumed endemic proportions after the creation of the Rapid Action Battalion (RAB), a paramilitary law enforcement agency, in 2004. RAB started the trend of so called "crossfire killings"-apparent extrajudicial killings that officials purport were legitimate or accidental killings where the victims (people RAB called "wanted criminals" or "top terrors") died when they resisted arrest or when they were caught in the crossfire during an armed clash between RAB and a criminal group. But the police also adopted these methods soon after. Since June 2004, well over 1,000 people have been killed by the police, RAB, and other security forces. It is widely believed that the vast majority of these killings in reality are thinly-disguised executions, often preceded by torture.[23]

Although there are no reliable statistics on the extent to which state agents engage in acts of torture, testimonies indicate that physical abuse is a routine feature in criminal investigations as well as a tool for extorting money from ordinary citizens. Nongovernmental organizations and journalists in Bangladesh have over the years documented and reported thousands of cases. In 2005, for instance, the Bangladesh Rehabilitation Centre for Trauma Victims recorded 2,297 victims of torture, and 15 deaths that it said were due to torture by security forces.[24]

Human Rights Watch has in previous reports described how criminal suspects have been subjected to severe beatings with batons, sexual violence, electric shocks, having their fingers and other body parts crushed, nails hammered into their toes, body parts burned with acid, and being tied to poles and forced to stand for long periods. Agencies such as RAB and DGFI are known to have medical personnel on stand-by who can administer first aid and revive unconscious victims who can then be subjected to further ill-treatment.[25]

Most of this institutionalized violence has been perpetrated by the members of the police force, and, in recent years, RAB. Others have also been accused of such abuses, such as Jatiyo Rakkhi Bahini, an elite parallel army established by Prime Minister Sheikh Mujibur Rahman after independence and merged with the regular army following his assassination in 1975; the Bangladesh Rifles (BDR), a border security force; and armed groups linked to different political parties.[26]

Whenever the military has been called out of the barracks to assist in law enforcement operations, its members have been involved in acts of torture and extrajudicial executions. The army has been deployed in the Chittagong Hill Tracts in the southeastern part of Bangladesh for decades; there are regular reports of soldiers subjecting members of the indigenous minorities to such abuses as forced evictions, destruction of property, arbitrary arrests, kidnapping, torture, and murder.[27]

Apart from ethnic or religious minorities, those who are most often victim of human rights violations by government forces are young adults from poor backgrounds with little formal education. These are individuals without access to political protection or influence. They are often accused of involvement in criminal activities and arrested on what appears to be flimsy evidence. Many have been connected to political movements, often belonging to the youth wing of a party. Other frequent victims have been critics of government policies, such as labor activists and journalists.

The State of Emergency, January 2007–December 2008

On January 11, 2007, only weeks before parliamentary elections were to be held, President Iajuddin Ahmed, under pressure from the armed forces, declared a state of emergency. The emergency had been preceded by a period of mass demonstrations and street violence by opposition parties led by the Awami League alleging that the Bangladesh Nationalist Party (BNP) was planning massive vote rigging.

Fakhruddin Ahmed, a former World Bank employee, was appointed as the new head of a non-party caretaker government, fundamental rights were suspended, and the armed forces were given law enforcement duties. While a caretaker government has the limited constitutional mandate to facilitate the election commission to hold free and fair elections and to carry out routine functions of an interim government in periods between elections,[28] Chief Advisor Ahmed and his government interpreted this mandate broadly.

The country's political culture had long been marked by personalized politics, politically motivated violence, lack of political accountability, weak institutions, and an ability of those in power to operate outside the realms of the law. In its stated efforts to transform that culture into one that meets the requirements of a "healthy and stable democratic system" based on the rule of law,[29] the interim government adopted dozens of ordinances and undertook a wide range of institutional reform initiatives, with no or little connection to its election-related mandate.

Some of these were considered positive steps, such as the formal separation of the judiciary from the executive branch of government, and an ordinance for the establishment of a National Human Rights Commission. The Anti-Corruption Commission was empowered to initiate an unprecedented campaign to root out corruption and the influence of crime in electoral politics. Hundreds of senior politicians, including the past two prime ministers, Khaleda Zia of the BNP and Sheikh Hasina of the Awami League, and businesspersons were arrested on corruption-related and other grounds.

However, the interim government's rule was marked by strict limitations on freedom of expression, assembly, and association. It also included mass arrests on apparently political grounds,[30] and removal of due process safeguards. Torture and extrajudicial executions continued. Between January 12, 2007, and October 11, 2008, according to the leading human rights organization Odhikar, at least 297 people were extrajudicially killed by security forces.[31]

To implement the anti-corruption agenda, the interim government and its Anti-Corruption Commission relied heavily on the armed forces, and in particular the DGFI. As the military operated with little or no civilian oversight and restraint on its powers, numerous human rights violations occurred, in particular targeting politicians and businesspersons.[32]

Even though the interim government announced radical reform efforts, there are few indications that it made any headway toward meeting its stated goals. The Anti-Corruption Commission clearly lacked the capacity to investigate economic crimes and produce credible evidence. Instead, torture was used by the security forces to obtain confessions and implicate third parties. A household survey issued by Transparency International Bangladesh (TIB) in June 2008 showed that the severity of corruption had not diminished in comparison with previous years.[33] During 2008, most of the politicians and businesspersons arrested were released from detention as dialogue began between the political parties and the interim government to prepare for elections.

As corruption remains rampant and the nexus between politics and crime persists, the main legacy of the past two years is arguably a militarization of society. By ensuring the appointment of military officers and other individuals to key positions in the bureaucracy and in state and private enterprises, the military has managed to significantly strengthen its influence in both the public and private spheres.[34] The caretaker government appointed many senior military officials to civilian institutions so that the military could retain maximum influence after the return to an elected government. All of this has sent an unambiguous signal to the political parties that the army will resist any attempts by an elected government at limiting its powers, holding it accountable, and prosecuting its officers for human rights abuses and other illegal acts.

The Government Elected in December 2008

The interim government handed power to an elected government following parliamentary elections in December 2008 in which the Awami League won a large majority. In its election manifesto, the party announced a commitment to bring war criminals to justice and to put an end to extrajudicial killings.[35] The new government, headed by Prime Minister Sheikh Hasina, has reiterated its human rights commitments. In February 2009, at the United Nations Human Rights Council's Universal Periodic Review, Foreign Minister Dipu Moni stated that Bangladesh had a policy of zero tolerance for extrajudicial killings, torture, and deaths in custody.[36] The prime minister stated a few days later that legal action would be taken against those responsible for extrajudicial killings.[37]