Bangladeshi International Crimes Tribunal Comes Up Wanting

Bangladesh's war crimes tribunal, set up in 2010 to investigate atrocities committed during the country's violent 1971 split from Pakistan, is igniting political and sectarian tensions that have resulted in over 75 deaths in the past month.

 

The bout of protests, which began peacefully, stem from a series of sentences handed down by the International Crimes Tribunal (ICT) against a handful of leaders of the country's Jamaat-e-Islami party (Bangladesh's most important Islamist party) beginning in January. Elements of the Jamaat-e-Islami (JI) participated in the killing of up to 3 million Bangladeshis and the torture and rape of many hundreds of thousands more during the nine month war of separation from Pakistan (some place the toll closer to 300-500 thousand; Pakistanis argue the number is closer to 25-50,000). The Tribunal, a domestic court, despite its name, handed down its first sentence--death, in absentia--against former JI leader, Abul Kamal Azad.

Protesters demanding the death sentence
for Kader Mollah, February 2013 

Things became really heated though, when the ICT sentenced a second JI leader, Quader Mollah to life in prison for his role in the conflict on February 5th. In the following weeks, tens of thousands of Bangladeshis protested the finding, demanding a death sentence. On February 17, the Bangladeshi Parliament obliged, not only allowing the state to appeal the sentence in hopes of winning a harsher punishment for Mollah, but also paving the way for the ICT to try groups, not just individuals, in association with the atrocities of 1971--JI being the principle target.

The past week has seen the worst of the violence, following the February 28 sentence of another JI leader, vice-president Delwar Hossain Sayedee, to death for murder, religious persecution, and rape. JI called a two-day strike over the weekend in response to the killing by police of four partisan youths last week.

Set up by the ruling Awami League, who campaigned on the issue in 2009, the ICT has received strong criticism from legal and human rights observers, who say it has been used to attack the opposition JI and its allies in the Bangladesh Nationalist Party. International observers, who initially backed the Tribunal, have backed such claims, and added their own complaints of harassment, intimidation, and illegal cooperation between judges, prosecutors, and the government.

 

Few international observers consider the trials clean and fair. Along with complaints of a tainted system, the Parliament's apparent eagerness to appease public opinion, and the recent wave of violence (mostly by the police, though not all) seem to support fears that the government is merely using the ICT to bludgeon the opposition. In total, nine JI leaders have been or are being tried, with decisions on the remaining six expected soon. Guilty verdicts, which are expected for each of the remaining individuals, could result in the entire leadership of the JI and several from the Bangladesh Nationalist Party being put to death by the end of the year.

 

Far from providing the catharsis that was expected at the outset, these tainted trials may be tearing Bangladesh apart.  

 

Things are expected to get worse, as several more senior JI figures are slated to receive their sentences over the coming weeks. As a supporter of efforts--especially by domestic, rather than international courts--to reckon with the sins of the past, I worry that a botched attempt at justice may weigh on similar efforts elsewhere in the world by providing a false example of the dangers of "looking back" or "digging into the past." This would be especially convenient for elements in countries currently seeking to achieve transitional justice, who argue that no good can come of prosecution for crimes of the past.

 

First Fruits of the Brazilian Truth Commission

Brazil is learning startling truths about what took place during the country's period of military dictatorship (1964-1985). The president of Brazil's National Human Rights Commission (Comissão Nacional de Direitos Humanos) Wadih Damous, demanded this week that along with the thousands of politically motivated tortures that took place under military rule, abuse and torture of the children of prisoners be investigated.

This comes barely a week after the high profile suicide of Carlos Alexandre Azevedo, son of a well known Brazilian journalist. Azevedo was captured with his mother in 1974 and apparently abused by the jailers--to torture his watching mother--when he was not yet two years old. Azevedo suffered from numerous social and psychological traumas as a result of the abuse he suffered as a toddler, apparently never recovering. Other reports of the willingness of Brazilian authorities to abuse the children of suspected subversives have surfaced in recent months, though it is not yet clear if the practice was as systemic as the Argentinian corollary, where children were systematically taken from their parents (who were usually then killed) and given to be raised by members or friends of the ruling junta.

The National Truth Commission (Comissão Nacional da Verdade), established May of 2012, has been looking into disappearances, torture, rape, and other abuses that took place during Brazil's "dirty war" against suspected leftists and insurgents. On Monday, the Commission revealed that it had identified dozens of individuals--mostly military and police officials, but some civilians--who had been involved with certain atrocities.

The Commission has run into strong criticism though, as important segments of the public are strongly resistant to any digging around in the unpleasantries of the past. Many are simply too young or care too little about what they see as relatively minor abuses of a distant past. An estimated 500 individuals disappeared during the twenty year period, while another 9,000 were jailed and tortured in brutal crackdowns. The Commission estimates that approximately 50,000 were arrested in 1964--the first year of military rule--alone. Compare these numbers to the more spectacular horrors of Peru or Guatemala for example where nearly 70,000 and 200,000 were killed, respectively (or tiny Uruguay, where around 200 disappearances had a much more pervasive effect); much of Brazilian society--now a country of around 200 million--was relatively untouched by state violence during the period.

On the other hand, since Brazil passed a military amnesty in 1979 (which was upheld in 2010 by the Supreme Court), no prosecutions will result from the Commission's work. Still, the body hopes to name names, and to provide a deeper and clearer history of what actually happened during this dark period. And, digging up the truth is not just an academic exercise. The history, and especially the personal histories that emerge during this process (the Commission has a two year mandate) could have unimaginable consequences on Brazilian society and politics, not to mention the families and societies that lived them.

It will be interesting to see what the emergence of a (potentially) new collective knowledge and understanding of this period could do for the prospects for justice in Brazil. If the Commission does reveal atrocities or abuse that were, perhaps, more extensive or more heinous than generally accepted, could a civil-social groundswell provide the kind of political momentum to revisit the amnesty issue a la Uruguay and Argentina? Too soon to say, for sure. But, it seems a positive sign that Brazil is dealing with this difficult part of its past. Combined with last year's high-profile corruption scandal (Mensalão), which resulted in 35 convictions in a country that does nearly as well on corruption indexes as it does in the World Cup, the Truth Commission's first fruits, though devastatingly bitter, are a step forward.

Uruguay takes a step backwards on Human Rights

On Friday February 22, the Uruguayan Supreme Court put a stop to human rights trials stemming from that country's military dictatorship during the 1970s and 80s by calling a law that had turned over a 1986 amnesty unconstitutional.

The amnesty, passed by popular referendum in the years following Uruguay's return to democracy, was overturned in late 2011. The law, passed following an Inter-American Court of Human Rights ruling that declared Uruguay's amnesty in conflict with the country's treaty obligations, eliminated the statute of limitations on cases against former military and police officials alleged to be responsible for disappearances and other atrocities under the dictatorship.

However, the Supreme Court found this week that the 2011 law, passed by the president Jose Mujica's Broad Front (Frente Amplio) following several unsuccessful attempts to reverse the amnesty by referendum, to be unconstitutional. The finding, while not entirely unexpected, was widely denounced by human rights activists in Uruguay and beyond. President Mujica's party released a statement on its website denouncing the finding as an "obstacle in the search for truth and justice legitimately claimed by social organizations and victims of state sponsored terrorism."

Opponents of the decision vowed to take the fight against the amnesty law to the Inter-American Court, and to take legal action against the Supreme Court itself.

The finding affects dozens of cases brought by families and survivors of the military regime, which is believed to have disappeared around 200 individuals and tortured thousands more. While the scale of the violence that shook Uruguay during the Cold War seems perhaps less horrific than say, that of Peru or Guatemala (where nearly 70,000 and 200,000 individuals were killed, respectively, and countless more tortured, raped, beaten, etc.), the issue is highly divisive after 20 years of democracy in this country of just over three million. The finding is unlikely to be the last word on trials for abuses though, and human rights activists could find that the ruling only galvanizes their movement, providing the impetus to overturn the amnesty by other, constitutional means.

"An African Solution to an African Problem"

Last week, Senegal began setting up a court to try former Chadian dictator Hissein Habre for crimes against humanity. Habre led Chad between mid-1982 and 1990, coming to power and being forced out via coups. Under his command, the armed forces of Chad repelled attacks from Muammar Gaddafi's Libya in the north of the country, and fought a simmering civil war throughout the 1980s marked by torture, disappearances, and executions of regime opponents.

An estimated 40,000 people were killed and 200,000 tortured under Habre's rule.

Following a coup in 1990, Habre fled for Senegal, where he has remained under some degree of protection since. Belgium sought to have Habre extradited to stand trial in the Hague in 2005. Senegalese president Wade, who like many heads of state, worry about the precedent of trying leaders for war crimes, resisted calls to hand over Habre.

After the defeat of Abdoulaye Wade in 2012 however, Senegalese President Macky Sall negotiated the creation of an African Union-mandated court, paving the way for trial of the former dictator.

Writing on Aljazeera, Chandra Lekha Sriram observes that, assuming Habre does eventually stand trial, "What we might be seeing is a shift from the narrative of Habré as an African Pinochet, and international justice and the ICC as neocolonial, to the fruition of one possible model for "African solutions to African problems".

A possible "African solution" is hugely significant for several reasons. First, as Sriram again points out, this case would represent the first time a country's national court tries another country's former head of state for crimes against humanity. This model would provide an alternative path to bring political leaders to justice in addition to domestic courts, ad hoc international tribunals, or the oft-maligned International Criminal Court.

Second, and perhaps more significantly, the Senegalese model may set an important precedent for trying for former heads of state, and may build on a growing collection of jurisprudence and rulings breaking down the once insurmountable barriers to accountability for war crimes committed at the highest political levels.

Katherine Sikkink's 2011 book Justice Cascade (W.W. Norton & Co.) gives an excellent accounting of the barriers overcome in recent decades. The first countries to try former members of an oppressive military regime were Greece and Portugal, in the mid-1970s. These trials, while significant in that they were able to charge former leaders, were not human rights trials. They were trials for treason and overthrowing the state. Nevertheless, these trials “broke the back” of regime hardliners and supporters, and thus opened the door to the possibility of punishment for other abuses. 

The next experiment with trials of members of a former regime came in mid-1980s Argentina, when that country tried nine members of the former military regime. In the case of Argentina, however, prosecutors did in fact try—and convict—members of the military junta for human rights abuses committed between 1976 and 1983. As prosecutors continued to target low-level military officers (rather than just political-military leaders), this provoked a backlash in segments of Argentine society and regime supporters launched a coup attempt in 1987. This instance is hailed by some as proof that human rights trials destabilize new democracies.

Sikkink argues, however, that despite the backlash, coup attempt, and the amnesty laws and pardons that followed, the symbolic societal rejection of immunity for human rights abuses and the new relationship between the Argentine state and military were firmly in place. Furthermore, the initial successes in Argentina had already changed people’s beliefs and expectations about justice in transitional contexts throughout the globe. In the mid-1970s, when Greece and Portugal were experimenting with transitional justice, the idea of prosecuting heads of state for human rights abuses was unthinkable. After the Argentine trials, it was not.

Further, the Argentine trials informed a series of international treaties and conventions including the Convention Against Torture, The Genocide Convention, and the International Criminal Court--all of which embody and codify what was once a novel approach to international law: individual responsibility.

This idea of individuals—rather than states—being tried for crimes against humanity, combined with the ability of individuals to file complaints of human rights violations (in Argentina) is now a cornerstone of international human rights law.

Heads of state and senior political leaders have now been tried in a variety of fora: domestic courts (Pinochet, Fujimori, and now Efrain Rios Montt), international tribunals (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda),  and the International Criminal Court, which handed down its conviction of Thomas Lubanga last year.

The Senegalese model is a positive step forward for accountability, especially in Africa. While any number of factors could prevent the trial--not expected to start until 2015--from yielding a ruling (death of the 70 year old defendant, political meddling, mishandling of evidence, etc.), the precedent and possibility of prosecution for current and future African (and non-African!) leaders are in themselves a positive development.