Injustice, Memory and Faith in Human Rights

Kalliopi Chainoglou, Barry Collins, Michael Phillips, John Strawson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317116615
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This multi-disciplinary collection interrogates the role of human rights in addressing past injustices. The volume draws on legal scholars, political scientists, anthropologists and political philosophers grappling with the weight of the memory of historical injustices arising from conflicts in Europe, the Middle East and Australasia. It examines the role of human rights as legal doctrine, rhetoric and policy as developed by states, international organizations, regional groups and non-governmental bodies. The authors question whether faith in human rights is justified as balm to heal past injustice or whether such faith nourishes both victimhood and self-justification. These issues are explored through three discrete sections: moments of memory and injustice, addressing injustice; and questions of faith. In each of these sections, authors address the manner in which memory of past conflicts and injustice haunt our contemporary understanding of human rights. The volume questions whether the expectation that human rights law can deal with past injustice has undermined the development of an emancipatory politics of human rights for our current world.

Part I
Moments of memory and injustice

1
Ghosts of war crimes past

An account from the frontline in Bangladesh

Wayne Morrison

Living in a divided past, fractured present

Bangladesh still has not dealt with its past and the past has never left her. For any society, traumatized by serious crimes and widespread victimizations, dealing definitively with the past is critical, or else it will haunt the present and future. … In nearly four decades, Bangladesh has failed to reconcile with its past, an ‘original sin’.¹

The first phone call that we received post-execution of Salahuddin Quader Chowdhury was from a brother living abroad: ‘Are you all OK? What about hartals? Reactions? Vandalism? Violence?’ It took us a while to calm him and tell him that we were all fine and all was well with the world and that nothing would ever go wrong again like before, and that the whole nation had stood in silence, steeped in memory, watching the news till about 1:00am of November 22, 2015 [when the news confirmed that the two men found guilty of war crimes had been hung shortly after midnight]. Many tweeted, failing the Facebooking option. Many placed regular calls to loved ones in place of Viber and WhatsApp. Many even blogged. I just tweeted [‘Done, SQC. Done, Mujahid’] and rested.

At around noon on the 22nd, a bright young lady, in response to my tweet, wrote: ‘Where has all your compassion gone?’ I … wondered if I should explain to the young lady that I had lived through 1971 as a young kid and had watched friends, brothers, fathers, cousins leave for war never to return.²

To transfer from Christianity the language of ‘original sin’ to label the burden Bangladesh carries from a failure to deal with its past, and in particular the events of 1971, itself displays the difficulty of finding a concept and vocabulary for a very real existential legacy. Rubana Huq, managing director of Mohammadi Group, a large garment manufacturing company, and occasional opinion col umnist for one of Bangladesh’s leading English-language newspapers, is but one of many who feel the memories of the past and a lack of justice as something inscribed in their own being. Thus she described her relation towards the final dismissal of appeals against the decision of the Bangladesh International War Crimes Tribunal³ (WCT) by the Supreme Court and subsequent execution of Ali Ahsan Mohammad Mujahid, Jamaat-e-Islami Secretary General, and Salahuddin Quader Chowdhury, Bangladesh Nationalist Party (BNP) leader. As she states, failing the Facebook option she tweeted; the government on 18 November had shut down Facebook and messaging and voicecall services Viber and WhatsApp fearing violence by supporters.

Who were these men? As with all the defendants on trial by the WCT, set up in 2010 based on 1973 legislation (seen in 1973 as path-breaking and world leading⁴), they were political leaders either of the main Islamic party, Jamaat-e-Islami, or the main opposition party, the BNP. Chowdhury was a six-times MP and senior member of the BNP executive council, yet prosecutors had during the trial described him in 1971 as a young but merciless killer responsible for the deaths of more than 200 Hindus. All the defendants were said to have been youthful fanatics; not just students unmoved by the Bengali language movement or resistant to claims that the national government, located 1,600km away in West Pakistan (itself renamed simply Pakistan by executive order in 1970), treated East Pakistan as a neo-colonial dominion, but so pro-Pakistan that they abandoned student politics to set up paramilitary groups assisting the occupying Pakistan military.⁵ Charges faced included abetting the Pakistani military, assisting and engaging in genocide and crimes against humanity, murder, abduction and rape. For many of the public there was little doubt as to their guilt: positioned in a narrative recall, steeped in pride mixed with bitterness, of the founding moment of Bangladesh – ‘the 1971 war of liberation’ – these were identified as men who had betrayed a tolerant and self-determining Muslim Bengali identity for a simplistic Islamic one and who showed ruthless determination to preserve their image of the Muslim nation.

And where was I as Rubana waited for and then celebrated their executions? I was in Germany, first giving a lecture on law in the social constitution of the Holocaust at the University of Passau and then going to Nuremberg to participate in the Nuremberg Forum. It was the seventieth anniversary of the Nuremberg trials and this was the first conference of a new institution, the Nuremberg Academy, which is dedicated to the dissemination of the Nuremberg principles as the foundational principles of international criminal law.

The opening took place in a hushed but cramped Courtroom 600 at the Nuremberg Palace of Justice. I knew it from those black and white images, newsreels and documentaries I show to my Law and Holocaust class. I had not been in person before, but now as Professor Thomas Buergenthal – President of the Academy’s advisory board, Auschwitz survivor and former judge of the International Court of Justice – opened proceedings I felt in the presence of something more than a mere set of participants at a conference. Professor Leila Sadat’s keynote address began by evoking a martyr-like image of Justice Jackson, who had put together the prosecution strategy for the original trials. Here was a man who faced huge odds to have a successful trial (and many would have preferred executions or a Soviet-style show trial) but was unshakable in his passion, commitment and desire to bring about the rule of law.⁶ Sadat might also have referred to the language used in the trial of the Nazi justices where it was said that the Temple of Justice had been desecrated and needed to be rebuilt. I felt a new faith at work. But I was also slightly distracted, for the reality of the WCT in Bangladesh was my constant reference point as I listened, questioned and intervened, a duality of presence all the more acute as I knew that death sentences were about to be carried out at any moment.

I spoke with Stephen Rapp, former US Ambassador-at-Large and head of the Office of Global Criminal Justice in the US State Department for six years from September 2009 to August 2015 (he visited Bangladesh five times in that period). He had just sent off his personal retort to a newspaper article by one of the lead prosecutors, in which she had asserted that during his last visit, in August 2014, he had pronounced himself satisfied with the fairness of the proceedings. ‘No! No!’ he exclaimed to me. ‘I am emailing the major newspapers and the Prime Minister expressing my deep disquiet and asking for suspension of the sentences of these men and expressly stating my concerns with the trial of S.Q. Chowdhury and the failure to allow his alibi claims to be properly presented.’

I appreciated that the WCT fell short of compliance with the Nuremberg principles (particularly in respect of equality of arms). But as I sat and listened to a former lead prosecutor at the ad hoc Tribunal for Rwanda (ICTR) explain that their adherence to the principle of equality of arms had meant that, when a lead defense counsel had suddenly resigned, the trial was suspended for six months to allow the new defense lawyer to come up to speed, I succumbed to existential vertigo. I passed back and forth from conversations in Dhaka, the Bangladesh capital, where I have been a frequent visitor since 1997, and in particular to a meeting with a prosecution witness and the son of an intellectual who had been taken from his family home and murdered by collaborators in the final few days leading to the victory of the pro-Bangladesh forces (and now celebrated as Martyr’s Day). ‘Why,’ he had said with considerable fervor, ‘do people outside of Bangladesh question the fairness of the trials? They are our trials! They are bringing justice for us, for the families that had had to put up with constant failure by government after government to deliver. Are they [the critics] corrupt? Are they bought by the money of the Islamists?’ And another interview where my subject exclaimed: ‘They want us to be of international standard but they give us examples of pure luxury! How many millions of dollars do international criminal courts spend to get one conviction?’⁷

It was as well that there was a polite queuing system to speak on Rwanda, as I would have been tempted to say: ‘Madam, during that time when you delayed, more than ten people were dying a day in jails awaiting trials, and many more were developing gangrene in limbs from the terribly cramped conditions. In 1996 some 80,000 were in jail awaiting trial, by 2000 the figure was 130,000. Thousands died awaiting trial in terrible conditions, ultimately only 93 were indicted and 61 convicted by the ICTR; seeking solutions, local justice in the form of Gacaca courts dealt with hundreds of thousands (at a total cost of only $4m).⁸ But that was a justice without lawyers, where only Hutu actions against Tutsi could be tried and commentators gave these processes “mixed” reviews at best. In 2014, 20 years after the genocide, The Guardian newspaper could report that “after almost 20 years of legal argument and an estimated bill of $1.7bn (£1.2bn) [for the ICTR], only a tiny proportion” of the Rwandan malefactors had been brought to internationally recognized justice.’

But I did not. Instead I phrased my interjections solely about Bangladesh: for as Osiel had written: ‘The raging disagreements within humanitarian law today do not simply reflect diverging ideals of international order for competing normative visions of a better world. … They also disclose a new and shifting vocational field – international criminal law – within which various professionals struggle to establish and defend their expertise and, in so doing, secure commodious place for themselves at the high table.’⁹ And I had dined, at least for lunch, quite peaceably. But my mind kept wandering. It returned to those days of my youth when, as an altar boy, I had served in Catholic services at the time when Latin was being replaced by English, never fully extinguishing the ritualistic and often simply mystifying language of miracles, saints and sinners. Now the language was of transitional justice, commitment to the Nuremberg principles, memory, hope, betrayal, victimhood. I felt guilt for my doubting; but confronting empirical reality, to engage in this new field of ‘atrocity, punishment and international law,’ is to move in existential circles. Aryeh Neier categorizes the International Criminal Tribunal for the former Yugoslavia and the ICTR as right deeds done for the wrong reasons, tribunals that were ‘substitutes for effective action [by the United Nations or major powers] to halt Serb [or Hutu] depredations in BiH [or Rwanda].’¹⁰ But put in the context of subsequent events in Democratic Republic of the Congo and Central African Republic, Philip Lancaster is scathing. ‘Twenty years after Rwanda, the world has learned nothing,’ he writes, echoing Linda Melvern’s ‘Twenty years after the genocide, we have learnt nothing from Rwanda.’ ¹¹

If the relevant agencies of the international community are now quick to criticize the WCT, they were absent or slow to protest the original atrocities. Bangladesh was created in a nomos dominated by Cold War politics and Westphalian sovereignty and was called a basket case by Henry Kissinger, US Secretary of State. The conflict was viewed as an internal matter, although the word ‘genocide’ resounded in contemporary articles in the Sunday Times of London.¹² Most governments appeared to hope that the situation would be soon over; New Zealand was the sole voice at the UN arguing that the breaches of human rights were so grave that intervention was required. Otherwise it was left to artists (George Harrison’s concert for Bangladesh), and eccentric journalists (John Pilger) and politicians (Edward Kennedy) to bring the suffering to the world’s attention. Today, with a population of 160 million, Bangladesh is regarded as an emerging market with approximately 6 per cent annual growth. Dhaka is polluted, with endless traffic jams, but it is also vibrant with coffee bars, art galleries and an ever-changing restaurant scene. Faced with innumerable problems the resilience of the people and their ingenuity stand out, causing many to now see it as a ‘laboratory for innovative solutions in the developing world’ and as a place where the future of an overpopulated and climate-changed world has in some ways arrived.¹³ This creativity occurs alongside great corruption and an elitist, patronage-driven State. While Bangladesh is said to be the beneficiary of globalization, this has come at the cost of tremendous social upheaval, including the mass movement from the countryside to cities. The rising middle class increasingly globalizes, looks to the latest Indian or Pakistani fa...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Notes on contributors
• Introduction: injustice, memory and faith in human rights
• PART I Moments of memory and injustice
• PART II Addressing injustice
• PART III Questions of faith
• Conclusion: Varosha, a memorial to conflict
• Index