Redress for sexual violence before the international crimes tribunal in Bangladesh: Lessons from history, and hopes for the future

Criminal Law Forum

Volumn 21, Issue 2, 2010, Pages 331-359

  D'Costa, Bina ^a   Hossain, Sara ^b  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

^b NONE   (Bangladesh)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954953381     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-010-9120-2     Document Type: Article

References (99)

1. The International Crimes (Tribunals) Act 1973 as amended by the International Crimes (Tribunals) (Amendment) Act 2009 (2009) (Bangl.) [hereinafter 1974 Act].
2. See Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997);
3. Christine Chinkin, Women's International Tribunal on Japanese Military Sexual Slavery, 95 AM. J. INT'L L. 335-41 (2001).
4. Susan Harris-Rimmer, Gender and Transitional Justice: the Women of East Timor (2010); Report of the Sierra Leone Truth and Reconciliation Commission, Truth and Reconciliation Commission, Sierra Lone, Witness to Truth (2004).
5. However, various other experiences of women - as freedom fighters themselves, as refugees and displaced from their land, as widows/single women, left behind to look after the families, as mothers who urged their men to fight for the nation - were largely silenced or perceived as not worthy of receiving much attention in the post- war Bangladesh, and have only begun to be discussed or documented in recent years.
6. Meghna Guhathakurta, Women's narrative from the Chittagong Hill Tracts, in Women, War and Peace in South Asia: Beyond Victimhood to Agency 252 (Rita Manchanda ed., 2001);
7. Amena Mohsin, The Politics of Nationalism: The Case of the Chittagong Hill Tracts Bangladesh (2d ed., 2002).
8. See also generally, Narir Ekattur, O Juddhyo Porobortee Kothyokahini [Women's'71 and Post-War Narratives'] (Ain o Salish Kendra ed., 2001) [hereinafter Narir Ekattur].
9. See generally, Bina D'Costa, Nation building, Gender, and War Crimes in South Asia (2010).
10. See Lynn Welchman & Sara Hossain, "Honour": Crimes, Paradigms and Violence against Women (2005) (for further exploration on izzat/honour).
11. See also Rubaiyat Hossain, Trauma of the Women, Trauma of the Nation: A Feminist Discourse on Izzat, a paper presented at the Second International Conference on Genocide, Truth and Justice, Jul. 30-31, 2009, unpublished manuscript (on file with authors) (for details on izzat/honour as a key factor in post-war Bangladesh).
12. Askin, supra note 2, at 39 (suggesting that sexual assaults and rape crimes are carried out for a multitude of reasons. While rape commited by a solider on his own might be considered an isolated act and therefore outside the scope of war, and systematic rape officially ordered by a superior may be considered as being within the scope of war, in reality, it will be difficult to distinguish these incidents. She also argues that if it can be established that though there is no oficial encouragement of rape, there is a pattern of superior officers 'look[ing] the other way', and considering Footnote 8 continued a single rape as a mere act of personal gratification, this situation could be compared to ordered and systematic rape).
13. See Narir Ekattur, supra note 5, at 10 (for comments by Hameeda Hossain).
14. See VIII Bangladesher Swadhinota Juddho: Dalilpatra [The Liberation War of Bangladesh: Documents] (H. R. Hasan ed., 1982-1985). We note that it included women's experiences. Also, during the justice advocacy of the Gono-Adalot explained later in the paper, some women's stories were published. However, analysed through the feminist framwork, these documents lacked a certain degree of gender senstivity. And another exception at least for a while, of this is Taramon Bibi who was an excombatant in Kurigram, fighting under sector no. 11. She was awarded an honorary title 'Bir Pratik' by the Awami League (Mujib) government in 1973, but there was no trace of her for years. In 1995, Bimal Kanti Dey, a researcher on freedom fighters located her, and she was given her award by the-then Prime Minister Khaleda Zia on December 19, 1995 (K.M. Golam Rabbani, Road named after Taramon Bibi in Kurigram, NEW AGE, Dec. 19, 2008). She still lives in dire poverty.
15. Hamood-Ur Rahman Commission Supplementary Report to the Commission's Official Inquiry into the 1971 India-Pakistan War, As Released by the Government of Pakistan, 13 (Arc Manor, 2007 (1974)) [hereinafter Supplementary Hamood-ur Rahman Commission Report].
16. Id., at 35-36.
17. Id., at 33 and 44.
18. Id., at 91-95.
19. See Suzannah Linton, Completing the Circle: Accountability for the Crimes of the the 1971 Bangladesh War of Liberation, in this edition of the CRIMINAL LAW FORUM (providing, inter alia, a broad overview of the background and efforts at accountability).
20. See Bangladesh-India-Pakistan Agreement on the Repatriation of Prisoners of War and Civilian Internees, Bangl.-India-Pak., Apr. 9, 1974, 13 I.L.M. 501 (1974), cited in Linton, supra note 15 at note 54.
21. See Trial of Pakistani Prisoners of War (Pakistan v India) (Application Instituting Proceedings) (Application of May 11, 1973), cited in Linton, supra note 15 at note 50. See also Convention on the Prevention and Punishment of the Crime of Genocide, art IV, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention].
22. S. M. Burke, The Postwar Diplomacy of the Indo-Pakistani War of 1971, 13 ASIAN SURVEY 1040 (1973).
23. Syeed Ahamed, The Curious Case of the 195 War Criminals, The D. Star, May 2010, available at http://www.thedailystar.net/forum/2010/may/curious.htm (last accessed May 25, 2010).
24. President's Order No. 8 of 1972 (1972) (Bangl.); Collaborators (Special Tribunals) Order (1972) (Bangl.).
25. George T. Curlin, Lincoln C. Chen & Sayed Babur, Demographic Crisis: The Impact of the Bangladesh Civil War (1971) on Births and Deaths in a Rural Area of Bangladesh, 30 POPULATION STUD. 88, 88-89, 93 (1976).
26. See also Ziauddin Ahmed, The Case of Bangladesh: Bringing to Trial the Perpetrators of the 1971 Genocide, in Contemporary Genocides: Causes, Cases, Consequences 95-115 (Albert Jongman ed., 1996).
27. Susan Brownmiller, Against Our Will: Men, Women and Rape (1975);
28. Rhonda Copelon, Gendered war crimes: reconceptualising rape in time of war, in Women's Rights Human Rights: International Feminist Perspectives 197 (J. Peters & A. Wolper eds., 1994).
29. Rhonda Copelon, Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law, 46 McGill L.J. 197 (2000);
30. Rita Manchanda, Where are the women in South Asian conflicts?, in Women, War and Peace in South Asia: Byond Victimhood to Agency 30 (Rita Manchanda ed., 2001).
31. See Brownmiller, supra note 23, at 84.
32. See Husain Haqqani, Pakistan: Between Mosque and Military 79 (2005) (For details on the auxillary forces).
33. See for details, Supplementary Hamood-ur Rahman Commission Report, supra note 11. See also various responses to it by the War Crimes Fact Finding Committee as noted in M. A. Hasan, 71 Massacre in Bangladesh and the Fallacy in the H.R.C Report, in Documents on Crimes Against Humanity Committed by Pakistan Army and Their Agents in Bangladesh During 1971 261-264 (The Bangladesh Liberation War Museum ed.,1999-2002).
34. See for details,VIII Bangladesher Swadhinota Juddho: Dalilpatra, supra,note 10.
35. D'Costa, supra note 6, at 121.
36. Faustina Pereira, The Fractured Scales: The Search for a Uniform Personal Code 6 (2002).
37. Bina D'Costa, Marginalized Identity: New Frontiers of Research for IR?, in Feminist Methodologies for International Relations 129 (Brooke A. Ackerly, Jacqui True & Maria Stern eds., 2006).
38. See also Nayanika Mookherjee, 'Remembering to Forget': Public Secrecy and Memory of Sexual Violence in the Bangladesh War of 1971,12 J. ROYAL ANTH. INST. 433-50 (2006).
39. D'Costa, supra note 6, Ch. 4. The treatment of women survivors of sexual violence in the immediate aftermath of the war have also won retrospective plaudits - particularly with regard to the immediacy of efforts to ensure medical emotional and financial support, and to locate employment or other livelihood opportunities, as well as to acknowledge and witness their experiences (Email from Marianne Scholte, Trauma Therapist (Apr. 28, 2010) (On file with the authors)). Marianne Scholte has been working with rape survivors primarily in Kosovo for years.
40. Narir Ekattur, supra note 5, at 35-107 (for various accounts of Birangona), 123-133,249-260 (for accounts on war affected women in general).
41. Marianne Scholte, Will the War Crimes Tribunal Bring Justice to Bangladeshi Women? (2010) FORUM (forthcoming). Email from Marianne Scholte, Trauma Therapist (Apr. 28, 2010) (On file with the authors).
42. Shaheeen Akhter, Ferdousi Pribhashini: Ekok Nari [Ferdousi Pribhashini: A Solitary Woman], in Narir Ekattur, supra note 5, at 57-79.
43. Interview taken by D'Costa on 25 December, 2004 (unpublished, on file with author).
44. Askin, supra note 2, 398 (introducing the idea that an act may constitute a 'reproductive crime', if it affects reproductive capacity in some way. Generally this will include becoming pregnant or losing the ability to reproduce. While anecdotes and analysis exist of women not being able to conceive after the war, it is not known how many women had lost their reproductive abilities due to rape during the war.
45. See Curlin et al, supra note 22, at 93.
46. See for details, Anne Tierney Goldstein, Recognizing Forced Impregnation as a War Crime under International Law: A Special Report of the International Program (Centre for Reproductive Law and Policy, 1993).
47. Salma Sobhan, National identity, fundamentalism and the women's movement in Bangladesh, in Gender and National Identity: Women and Politics in Muslim Societies 63 (V.M. Moghadam ed., 1994).
48. Brownmiller, supra note 23, at 82.
49. See D'Costa, supra note 6, at 192-201 (for the interviews with Dr Davis, Missionaries of Charity Sisters and other social workers, 1999-2002, taken by D'Costa).
50. See also, Sobhan, supra note 39, at 63-64
51. Nayanika Mookherjee, Available motherhood: Legal technologies, 'state of exception' and the dekinning of 'war babies' in Bangladesh, 14 CHILDHOOD 339-354 (2007).
52. See Linton, supra note 15 (for a close analysis of the legislation).
53. See for details, Askin, supra note 2, at 340-341. The definition of genocide is still very narrow.
54. See for example, Patricia M. Wald, Genocide and Crimes against Humanity, 6 WASHINGTON U. GLOBAL STUDIES L. R. 621, 621 (2007) (in which the author, who was a judge of the ICTY between 1999 and 2001, argues that the dividing line between genocide and crimes against humanity is very fine).
55. D'Costa, supra note 6, at 133-138.
56. 'War babies' is the term used in Bangladesh to describe children who are born during or after a conflict as a result of planned and systematic rape of women by foreign or 'enemy' men. Due to the nature of their conception, war babies experience stigma and prejudice.
57. See Mookherjee, supra note 41 (for a discussion in relation to the Bangladesh case).
58. The Abandoned Children (Special Provision) Order of 1972, P.O. No. 124 of 1973 (1973) (Bangl.).
59. Bina D'Costa, Victory's Silence, 21 HIM. SOU. ASIAN, 56-59 (2008).
60. Nilima Ibrahim's interview with Ain-O-Salish Kendra, 1997 (Unpublished, undated, on file with authors); Nilima Ibrahim's interview with D'Costa, October, 1999 (Unpublished, on file with author).
61. D'Costa, supra note 47, at 58.
62. Due to the circumstances of their conception, 'war babies' in Bangladesh experienced significant stigma and prejudice, and the continuing silence around their existence (ruptured exceptionally in events such as that at the Liberation War Museum some years ago, arranging for a public speech by a former 'war baby' now settled in Canada) means that it is unsurprising that they have now rarely, if ever, represented in various national celebrations of Bangladesh.
63. See for details, Partha S. Ghosh, Bangladesh at the crossroads: religion and politics, 33 ASIAN SURVEY 697-710 (1993).
64. See also Ahmed Ziauddin, supra note 22, at 94-115.
65. Suraya Begum, Masuda, Elijan, Duljan, Momena: kushtiar charjon grihobodhu, [Masuda, Elijan, Duljan, Momena: Four Housewives from Kushtia] in Narir Ekattur, supra note 5, at 82.
66. Shahriar Kabir, Gonoadaloter Potobhumi [The Narrative of the Peoples' Tribunal] (1993).
67. Begum, supra note 52, at 82-83.
68. The ICTY was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. The ICTR was established by the UN Security Council Resolution 955 on November 8, 1994. See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827; U.N. SCOR., 48th Sess., 3217th mtg.; U.N. Doc. S/Res/827 (May 25, 1993); 32 I.L.M. 1203 [hereinafter ICTY Statute]; Statute of the International Tribunal for Rwanda, S.C. Res. 955; U.N. SCOR 49th Sess., 3217th mtg., U.N. Doc. S/Res/955 (Nov. 8, 1994); 33 I.L.M. 1598 [hereinafter ICTR Statute].
69. See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, (Sep. 2, 1998); Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, (Dec. 10, 1998) [hereinafter Akayesu Trial Chamber Judgement]; Prosecutor v. Furundzija, Case No. IT-95-17/1-A, Judgment (July 21, 2000); Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (July 15, 1999); Prosecutor v. Kvocka, Case No. IT-98-30/7-T, Judgment (Nov. 2, 2001); Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment 437-438 (Feb. 22, 2001). The Prosecutor v Zejnil Delalic et. al., Case No. IT-96-21-A, Judgement, Appeals Chamber, 20 February 2001, para 229, 241, 383- 393 [hereinafter Celebici Appeals Chamber Judgement].
70. See also, Jennifer Park, Sexual Violence as a Weapon of War in International Humanitarian Law, 3 INTL. PUB. POL. REV. 14-16 (2007).
71. See Genocide Convention, supra note 17, art II; ICTY Statute, supra note 55, art 4. The ICTR in Akayesu has held that measures under Article II(d) may be interpreted to include 'asexual mutilation, the practice of sterilization, forced birth
72. Rome Statute of the International Criminal Court, art 68, Sept. 16, 1999, 2187 U.N.T.S. 90, adopted Jul. 17, 1998, entered into force Jul. 1, 2002) [hereinafter ICC Statute].
73. Rules of Procedure and Evidence of the International Criminal Court, PCNICC/2000/1/Add. 1, arts 71-73, adopted Sept. 3-10, 2002; entered into force upon adoption.
74. Code of Professional Conduct for Counsel, ICC-ASP/4/Res. 1, art 29, adopted Dec. 2, 2005, entered into force Jan. 1, 2006.
75. For example, in the Butare trial at the ICTR, on 31 October, 2001, the judges (William Sekule of Tanzania, Winston Maqutu of Lesotho and Arlette Ramaroson of Madagascar laughed at the witness who was a victim of multiple rapes. The judges neither apologised nor were reprimanded afterwards. Also, when the victim was cross-examined by the defense counsel Duncan Mwanyumba, she was asked offensive and insensitive questions such as 'Did you touch the accused's penis?: Were you injured in the process of being raped by nine men?'.
76. See Binaifer Nowrojee, "Your Justice is Too Slow": Will the ICTR Fail Rwanda's Rape Victims? (Policy Report on Gender and Development: 10 Years after Beijing Paper No. 10, U.N. Inst. For Social Dev., Nov. 15, 2005).
77. Binaifer Nowrojee, Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone's Rape Victims, 18 HARV. HUM. RTS. J. 85, 89 (2005).
78. Daniel Terris, Cesare P. R. Romano, & Leigh Swigart, The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, 19 (2007).
79. Truth and Reconciliation Commission, Sierra Leone, IIIB Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission 88-90 (2004) [hereinafter Witness to Truth].
80. Throughout this article, we use terms such as 'sex crimes', 'sexual violence' and 'sexual assault' interchangebly. These terms variously encompass rape, enforced prostitution, enforced impregnation, enforced maternity, sexual mutilation and genocidal rape.
81. See Askin, supra note 2, at 11-12.
82. It is important to note that gender-based crimes may be commited against men as well as women. While sexual violence against men and boys is generally understood as encompassing rape and sexual assault, the ICTR has noted that it 'is not limited to physical invasion of the human body and may include acts that do not involve penetration or even physical contact'. If a victim's sexual or reproductive health or identity is affected, for example by various kinds of sexual humiliation such as castration and other forms of enforced sterilization; other forms of sexual mutilation; genital violence (for example beatings of the genitals or the administration of electric shocks to the genital area, which occurred during the Bangladesh war) these could also form the basis of gender-based crimes. See for details, United Nations Office for the Coordination of Humanitarian Affairs Research Meeting, Use of Sexual Violence in Armed Conflict: Identifying gaps in Research to Inform More Effective Interventions, Jun. 26, 2008, available at http://www.ochaonline.un.org/ OchaLinkClick.aspx?link=ocha&docId (last accessed Mar. 30, 2010).
83. Karen Engle, 'Calling in the Troops': The Uneasy Relationship Among Women's Rights, Human Rights, and Humanitarian Intervention, 20 HARV. HUM. RTS. J. 189 (2007);
84. Julie Mertus, Shouting from the Bottom of the Well: The Importance of International Trials for Wartime Rape of Women's Agency, 6 INT'L FEM. J. POL. 110 (2004).
85. See Witness to Truth, supra note 64, at 85-95 and Harris-Rimmer, supra note 3, at Ch. 1.
86. Firdausi participated in this Tokyo Tribunal and shared her experience, even though she was not a victim of Japanese war atrocities during World War II.
87. Sahil Nagpal, Bangladesh bars war crimes suspects from travelling abroad (Mar. 22,2009), available at http://www.topnews.in/bangladesh-bars-war-crimes-suspects- travelling-abroad-2142805 (last accessed May 25, 2010).
88. Among the celebrated Bangladeshi cases are the following examples. In 1994, 9 persons were convicted of abetting suicide, following their involvement in carrying out an extra-judicial sentence of pelting with stones of a woman called Nurjehan further to a traditional dispute resolution process in Chattokchara, Sylhet - see Meghna Guhathakurta Dossier 25: Women, Politics and Religion: The Scenario in Bangladesh" in Women Living Under Muslim Laws, available at http://www.wluml. org/node/461 (last accessed 1 June 2010). In 1997, three police officers were convicted of the rape and murder of Yasmin, a domestic worker, in Dinajpur, Bangladesh
89. see Moinul Haque (Md) and another v. State (2004) 56 D.L.R. 8 (Bangl., S. Ct. Appellate Div.); HUMAN RIGHTS IN BANGLADESH (Hameeda Hossain ed., 1998);
90. Ain o Salish Kendra, Dhaka, available at www.ask.bd.org (last accessed 1 June 2010;
91. Tahmina Shafique, Yasmin's Legacy, NEW AGE XTRA, Oct. 2008, 23-27, available at http:// www.newagebd.com/2008/oct/17/oct17/xtra_inner3.html (last accessed 1 June 2010); Rajib Kamrul Hasan v. The State, (2001) 21 B.L.D. 46 (Bangl., S. Ct. Appellate Div.). In 1999, several men were convicted of the gang rape and then enforced nude photography of Smritikona Biswas in Barisal - see Al-Amin v. State (1999) 51 D.L.R.
92. Code of Criminal Procedure 1989, Act V of 1898 (Bangl.).
93. Penal Code 1860, Act XLV of 1860 (Bangl.).
94. The Suppression of Violence Against Women and Children (Amendment) Act, 2003 (Bangl.).
95. See for details, Nowrojee, supra note 62 at 99-102.
96. For relevant scholarship, see generally, Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (2000);
97. Robert I. Rotberg & Dennis Thompson (eds), Truth v. justice: the morality of truth commissions (2000).
98. For an overview, see Helen Scanlon, Militarization, Gender and Transitional Justice in Africa, 10 FEM. AFRICA 31 (2008).
99. D'Costa, supra note 31, at 129.