A difficult decision

The crimes committed during the war of independence in Bangladesh in 1971 were truly horrific. Three million people are believed to have lost their lives, 200,000 women are said to have been raped and some 10 million people fled to India. The international community did next to nothing to stop the fighting and the US Administration under President Richard Nixon even backed Pakistan, despite the blatant violations of human rights it committed against its opponents in former East Pakistan.

These events belong without doubt to the darkest moments of South Asia's history. But as if that was not enough the legal process of establishing the responsibility of these crimes came to a halt in 1975 when the founding father of Bangladesh, Sheikh Mujibur Rahman, was assassinated. At such times despair knows no remedy.

It is not surprising that Sheikh Rahman’s daughter, Sheikh Hasina, the incumbent Prime Minister of Bangladesh, has been the driving force behind recent efforts to finally bring the perpetrators of those war crimes in 1971 to justice. She pledged to do so before the 2008 elections. Since 2010 the "International War Crimes Tribunal" has been in session to try the accused 40 odd years after the event.

So far eight people have been sentenced to death. The Supreme Court has commuted two death sentences to life imprisonment on appeal. In recent months the supporters of those in the dock have taken to the streets in violent protest. Those backing the tribunal say that justice will only be done when the guilty have been hanged.

But will it? When I discussed the situation recently with a Bangladeshi citizen and expressed my misgivings about the Tribunal's work and the political situation in the country, he warned me. "If you write that, you cannot go to Bangladesh again." I was somewhat taken aback. But on reflection, this remark provides a tiny snapshot of the Bangladeshi psyche at the present time. Those demanding justice were denied it for decades. Those allegedly involved in the crimes committed in 1971 enjoyed privilege and power for many years.

Those calling for justice have been demanding it for so long that now as the deliberations in the "International War Crimes Tribunal" reach a climax; their emotions alone are controlling their thinking. For them, there is no alternative to this process. It is beyond criticism. While this is on the one hand very understandable, it also blinds them to the dangers this situation is creating for the country.

The problem with a trial of this kind, forty odd years after the event, is that it is inevitably flawed. Witness testimony after such a long period of time has been in part unreliable. The defense teams continue to point this out to no avail. People have long ago formed their opinions. The judges know what public opinion expects. When such legally problematic trials end in the death penalty, the relatives of the victims may draw satisfaction and feel that justice has been done and closure achieved. But it will not help the victims. A death penalty is irreversible and leaves no room for a subsequent correction of a verdict based on erroneous evidence.

For the supporters of those executed, new martyrs will have been created. They believe that the Tribunal is not about serving justice or about ending an extremely ugly chapter in the country's history, but about Sheikh Hasina’s personal revenge. The result is that the divide between the religious right and the liberal, secular centre will be deepened further. A profound sense of resentment will if anything speed up the cycle of violence and further threaten democracy in the country.

Our experience in Western Europe is that the death penalty is a cruel and inhuman punishment which is open to political abuse. In the Nazi era Adolf Hitler used the death penalty on a large scale to liquidate his opponents. It is true that most of the Nazi leaders were executed by the Nuremberg War Crimes Tribunal. But this was a different era historically. Some 140 countries have now abolished the death penalty. We have moved on as the deliberations of the International Criminal Court in The Hague show.

Bangladesh is one of only nine countries to carry out the death penalty since 2009. China is believed to execute up to 2,400 people a year. Some US American states continue to carry out the death penalty, while Washington gladly lectures others about the need to respect human rights. We in Europe abhor the death penalty.

It is always easy to be wise with hindsight. But looking back and considering the violence triggered by the deliberations of the "International War Crimes Tribunal," Bangladesh's democracy would have fared better had it opted to go down the path of reconciliation like the one chosen by South Africa in the post Apartheid era under Nelson Mandela. A Truth Commission – if handled properly – could have done much to heal the deep wounds still festering in Bangladesh to the benefit of civil society.