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The promise of the war crimes trials

  • Published at 07:17 pm December 13th, 2013
The promise of the war crimes trials

I have long been a supporter and advocate of the war crimes trials. I have always believed that not holding war crimes trials all these years was Bangladesh’s original sin as a country, and as long as we did not have a true accounting of the crimes of 1971 that we could never move forward as a nation.

I have always been shocked that those who committed the worst kind of crimes in their opposition to our independence should have escaped punishment and in some cases risen to the heights of power in independent Bangladesh.

I have always felt that it said something ignoble about us as a nation that we had been unable to bring the war criminals to justice, and that our failure to do so was an indelible stain on our national honour and self-respect.

I have always argued that until and unless we came to terms with our past and specifically the atrocities of our liberation war that there would be a shadow over the nation that would keep us from advancing and developing, and that we would continue to be a country that could neither look itself squarely in the mirror nor take our place among the nations of the world, equal in self-respect and self-confidence.

Most importantly, I believed that the trials would allow us to close the door, once and for all, on the contentious chapter of Bangladesh’s history, so that we would not forever be fighting the battles of the past, but could turn our face to the future and build the country that our founding fathers and mothers dreamed of.

So here we are, the war crimes trials are winding their way to their inexorable end, and the first of the war criminals has been hanged. Now that the executions of the war criminals is a reality and no longer an abstraction, how do I feel?

I do not oppose the death penalty nor am I moved by procedural arguments in favour of the defendants. Due to the fact that more than 40 years have elapsed since the crimes at bar were committed and that those being accused have been important men who have had plenty of time to cover their tracks, dispose of evidence, and intimidate witnesses, to say nothing of the severe limitations of the prosecution, the trial process is certainly open to question. But this should not be confused with innocence.

The legal dictum that it is better for a hundred guilty men to go free than for one innocent man to be convicted only holds true if we presuppose the accused is powerless. When, however, the accused is the one with power, holding to such a standard is itself more likely to lead to a miscarriage of justice.

The sad truth is that in Bangladesh, the powerful have always managed to escape justice by exploiting the weaknesses and loopholes in the legal system, and if we are to cleave to a maximalist understanding of the rights of the accused and the burdens of prosecution no one powerful could ever be prosecuted for anything in Bangladesh.

Quader Molla was guilty as sin. The fact that the prosecution may not have done the best job of proving it does not in any way lessen his crime or justify his exoneration. He has received the justice he deserved.

The disquiet that I feel is not on behalf of Quader Molla, but on behalf of his victims. They deserved better. They have received a measure of justice, but they deserved more. They are the ones who deserved an unimpeachable process that was not open to any question.

This could have been achieved. The government could easily have conducted the trials more professionally and more punctiliously than it did. The defendants do not deserve better than they have received, but their victims and the Bangladeshi people did.

These are the most important trials that we have ever had or will ever have. They will define us as a nation and a people forevermore. Not only respect for the victims of wartime atrocities, but respect for the honour of the Bangladeshi people required that the government do everything in its power to ensure that the war crimes trials be above reproach and be something that we can all point to with pride as a defining element of who we are as a people and a nation.

It is here that the process has failed us. I am glad that the war crimes trials are being conducted and that some of those who committed the worst atrocities during the war have finally been called to account for their wrongs.

I am glad that their days of impunity have come to an end and that they are finally being held accountable for the reign of terror that they unleashed across this land. I am glad that their victims are finally getting their day in court and no longer have to live in fear and shame and the knowledge that their oppressors have the freedom and respect of the nation.

But I wish that the government had taken its responsibility to the victims and the nation more seriously. This is not about what is owed to the defendants.

This is about what is owed to the Bangladeshi people and our national identity and the momentousness of the war crimes trials for history.

It is here that the government has not lived up to its promise.