Responding to partisan journalism

One week after writing a post criticising an article in a Bangladesh newspaper, I now find myself writing about another article, from a very different perspective, this time published by a very well respected UK-based commentary website called Open Democracy.

Whilst my concern with the Daily Star article was that it misrepresented an Al Jazeera news report, and was part of a process of trying to silence independent reporting about the tribunal, my concern about the Open Democracy article was that a lot of it was based on a highly partisan view about what happened in 1971, the Jamaat-e-islami and the tribunal itself.

Anyone reading this article, without any background on the 1971 war and without knowing how the war crimes tribunal came about, would gain a completely wrong impression about this tribunal. It is not by job to 'protect' the tribunal - and as you will see, I don't disagree with all the points made in the article - but it is important that highly partisan accounts critical of the tribunal are corrected.

This is the link to the article, but I am also posting the text here. (NB: Below the text is a short discussion about two other articles - one written by the New York Times and another by the economist - published last year.)

Bangladesh war crimes tribunal: further bias is no answer
The role of the media in Bangladesh will not be improved by inaccurate and partisan critiques of the ICT

-----------

The article by Aisha Rahman, on Bangladesh’s war crimes tribunal involving offences alleged to have been committed during the country’s 1971 war of Independence, does highlight some legitimate concerns about the process of justice taking place in the country’s capital and how the media report it.

However, in the main it is a highly one-sided and inaccurate piece, failing to provide any proper reflection on the context in which the tribunal is taking place, or its operation.

Background to the tribunal
41 years ago, in March 1971 a war started in which the might of Pakistan’s military fought to stop the Awami League, a party representing the Bengali population in the eastern wing of the country which had just obtained a majority in the 1970 election, from taking power.

To say simply, as Rahman does, that ‘crimes were committed by both sides during the war,’ fails to reflect the contemporary reportage at the time, as well as subsequent respected histories.

Whilst it is true that freedom fighters, or at least those who supported them, were involved in some massacres particularly against the Bihari community (seen as opposing Bengali independence), it is also clear that it was the Pakistani military with the assistance of their local Bengali collaborators who were responsible for by far the majority of civilian deaths.

And though the Bangladesh government and indeed the tribunal itself almost certainly over estimate by a factor of about ten the numbers of those killed by the Pakistan military, the number of deaths does not need to be 3 million (the government figure) in order for there to be an unarguable case for accountability for these crimes.

Indeed the Bangladesh government is correct to say that it has an international obligation to hold trials relating to the commission of international crimes.

Moreover, this tribunal did not come out of nowhere. It is the culmination of strong national civil society protests for 20 years, which rarely received any international support, and which forced the current Awami League government into a position where it had little choice but to hold the tribunals. (Though of course the tribunals have now proved to be very politically convenient for it.)

Opposition on trial?
Rahman is correct to point out that all of the 8 men currently accused by the International Crimes Tribunal are, or were, leaders of one or other of the country’s two main opposition parties - two from the main Bangladesh Nationalist Party (BNP) and six from the smaller Islamic party, the Jamaat-e-Islami (JI).

However, to say that they were ‘targeted’ gives the distinct impression that they have been accused simply because they were opposition leaders. This is not true.

The support that the Jamaat-e-Islami gave to the Pakistan military in 1971 is well documented, not least at the time in the party’s own newspaper, the Daily Sangram. The paper also set out how the party established the Al Badr, a militia that supported the Pakistan military, from amongst its student wing.

To describe, for example, Gholam Azam, the leader of this party in 1971, as simply a ‘regional leader of a small political party opposing the secession of East Pakistan’ may well be a line that the defence lawyers will use, but it is no objective description of the role this man played in 1971.

It should perhaps be no surprise that the same men who supported the Pakistan military in 1971 continue to be members of opposition parties.

So, in this context, the attempted prosecution of these men is eminently reasonable.

Sufficiency of evidence
Of course, it has also to be kept in mind that finding sufficient evidence to prove a case against these men forty years on is by no means a forgone conclusion; exhortations made by Jamaat leaders, for example, to kill the ‘Indian agents,’ ‘miscreants’ and the like are not in themselves crimes against humanity as they would have to be shown at the very least to be directed against civilians rather than armed Bengali freedom fighters.

Credible eye-witnesses of direct offences allegedly committed by these men have also not been easy for the prosecution to come by, and Rahman correctly points to some weaknesses in the evidence so far.

And of course, it may simply be found through the rigour of a trial, that the conventional history told about these men is not true.

It is also of course quite ridiculous for Azam to have been accused of, “responsibility for all atrocities committed across the country from March 25 to December 16, 1971” as the prosecution are alleging.

In their attempts to prove their case, the prosecution have appeared willing to turn history on its head, depicting the Pakistani military as mere collaborators of the Jamaat-e-Islami, who have instead become the primary offenders in the war.

Standards of the tribunal
So onto the tribunal itself.

Rahman is right to point out that Article 47A of the constitution, does suspend ‘constitutional rights … for the accused’. However, she fails to point out that most of these rights have been re-incorporated into the legislation and rules of procedure under which the tribunal is proceeding.

Perhaps the only significant ‘constitutional’ right that the accused currently lack is to be able to appeal any orders made by the tribunal, other than a verdict of conviction.

A significant question, of course relates to whether the tribunal should follow ‘international standards’ – when no other criminal court in Bangladesh follows them. It is a difficult question to answer, which Rahman’s article gets nowhere near to considering, whether war crimes defendents should be the only accused in Bangladesh who deserve international standards.

Whilst the Government and its supporters continue, very foolishly and despite all evidence to the contrary, to assert that the tribunal not only matches but even outclasses international standards ↑ , it is important to note that the judges of the Bangladesh tribunal have themselves made it clear that it is simply a ‘national’ tribunal prosecuting international offences.

It is true that a UN working group has criticised the Bangladesh government for its policy of ‘arbitrary’ pre-charge detention  – a conclusion which could probably be made about hundreds of other people languishing in pre-trial remand in Bangladesh. But Rahman is wrong to suggest that one of the tribunal judges ‘has [himself] provided evidence’ to the tribunal.

This refers to the fact that the chairman of the tribunal was part of the secretariat of an organisation which nearly twenty years ago was involved in the investigation of a number of those currently detained by the tribunal. However, there was no evidence that the chairman was in any way personally involved in undertaking any inquiries of any kind.

Of course, it is a rather different question whether it was wise for him to remain involved in the tribunal since his membership of the secretariat, however inactive, arguably does create an appearance of bias.

Again it is true, as Rahman mentions, that the Bangladesh government has unjustifiably prevented their international lawyers from coming to Bangladesh and assisting them in the court room. However the defence do have a very proficient and capable defence team – far better than the prosecution – and have every opportunity to cross examine witnesses and present their own case.

Media bias
Rahman’s article focuses on how much of Bangladesh’s media has submitted to the government cause, and the extent of its cheer leading for the accused convictions. And here, she is no doubt on stronger ground.

Even though the substantive matters of guilt and innocence are currently before for the tribunal, some of the most influential printed media in Bangladesh continue to talk about the men as though they were guilty and their convictions a foregone conclusion.

It is of course hardly surprising that this happens, when the prime minister Sheikh Hasina herself gave a speech in September 2011 to the UN General Assembly which said of the accused that ‘Their eventual punishment will strengthen our democracy, demonstrating that the state is capable of just retribution.’

Moreover, on the other side of the coin, the possibilities of journalists here in Bangladesh being able to write critical commentary about the tribunal are decreasing. The attacks on Al Jazeera and myself are tantamount to that.

Yet, I simply don't see how Rahman’s inaccurate and partisan article provides any better understanding of the background and legitimacy of the Bangladesh tribunals, than the biases of the media over here.

There is a world of difference between journalism raising concerns about aspects of the tribunal process and the kind of polemic written by Rahman that damns the tribunal ab initio and finds no legitimate reason to hold war crimes trials involving a war that resulted in the death of hundreds of thousands of people.

And as for me – a journalist working for a national newspaper in Bangladesh, who as Rahman has in fact noted was found in contempt of the tribunal for what was, in my view at least, a good piece of critical analysis – I write as a person who certainly cannot be described as an uncritical commentator on the tribunal.

The NYT and the Economist
I have been meaning to write about a coupld of international articles written by foreign journalists critical of the war crimes tribunal - in the Economist and the New York Times - which all paint the tribunal as a biased forum. And this post provides as good an opportunity as any to do so.

The Awami League and its surrogates will of course have you believe that these articles were written as a result of Jammat lobbying and through money paid to these journalists - which is of course a load of buncum. Yet that does not mean that the comments are necessarily fair.

The article in the New York Times had the following very forthright words:

'The tribunal is shaping up to be a travesty of justice. The government seems to be using the court simply to rubberstamp a predetermination that the accused are guilty. For most Bangladeshis, that truth has been established since 1995, when a self-appointed panel of eminent citizens, headed by the current justice minister, compiled “evidence” of war crimes against 16 individuals, including the seven men currently awaiting trial before the International Crimes Tribunal. ....  If, as is nonetheless expected, nearly the entire leadership of the Jamaat is convicted and hanged within two years, the Bangladeshi opposition will be conveniently weakened in time for the next parliamentary election in 2013.

Such a nakedly partisan exercise of justice would make it much harder for an accurate history of Bangladesh’s birth to ever be written.'

There are certainly some who might concur with this conclusion, however I think, at the time the article was written - and indeed still now - it was/is too early to come to any clear conclusions about the fairness of the trial (though it is true  the journalist only said that it was 'shaping upto be'). To say, 'The government seems to be using the court simply to rubber stamp a predetermination that the accused are guilty' assumes that the tribunal has no independence, and that is not a fair judgment. There are also many ways in which the tribunal's functions reflect the requirements of a legitimate trial, and these need to be taken into account by any foreign journalist when writing about the tribunal. One also certainly need to recognise that the tribunal was not just a government determined process, but emerged out of years of civil society campaigning and demands.

At around the same time, an article published in the Economist with the following strong critique:

'The tribunal could have been laudable. This was a horrific spell of history, and justice might have helped reconciliation. Instead, it risks being a travesty. The prosecutions look biased. One defence lawyer talks of a “climate of vendetta” against opponents of the prime minister, Sheikh Hasina. None of the chief perpetrators, Pakistani soldiers, will be in court. Nor will pro-independence militants be charged over smaller but still gruesome massacres of Biharis, migrants who sympathised with Pakistan.

The defendants seem to have been made targets because of their political role today as much as for earlier wrongs. Jamaat is an ally of the main opposition; some of the accused were ministers in Bangladesh’s previous government. Should they be convicted and hanged in time for the next election, that would handily weaken the opposition. Yet a nakedly partisan trial would only deepen historical wounds, not salve them.

Outsiders, including the American government who once advised the court, look increasingly wary. Human Rights Watch says that witnesses and lawyers are being harassed, and defence lawyers lack time to prepare. Lawyers are blocked from challenging the judges’ impartiality. They say that the tribunal chairman should go, because he presided over an earlier investigation and mock trial in 1994, which condemned the accused as war criminals. They complain, too, that foreign lawyers, in theory allowed in the “international” court, are in effect barred. As a consequence of these problems, says a British lawyer, the trial “lacks even the appearance of independence or impartiality”. Journalists attempting to report as much have been intimidated.

I find this analsysis more problematic as it takes a very strong position, without presenting the other side. So:

• it only quotes defence lawyers. Prosecution lawyers would no doubt argue that their witnesses were being intimidated by the Jamaat.
• unlike the NYT article there is no explanation about why the Pakistan military are not before the tribunal. There is a legitimate reason for that!
• the disproportionate killings by the Pakistan military/collaborators justify a focus on these crimes rather than the much smaller number committed by freedom fighters (and even US Ambassadaor for War Crimes at Large, referred to in the article, has said as much);
• lawyers were in fact allowed to challenge the judges impartiality;
• whatever might be said about the international lawyers, the  defence lawyers are very capable and far superior in ability to the prosecutors. The accused are being allowed to defend themselves.
• As I said in my 'open democracy' piece, I don't think it is fair to suggest that the primary reason for accused being detained is that they are members of the opposition. It should be no surprise that those who supported the Pakistan military in 1971, remains members of the opposition now against the Awami League.

I make these points, not to dismiss outright the Economist analysis, but rather, to argue that it really does need to present both sides of the coin before coming to its conclusions.