That is the key question right now as we await to find out what are the new revelations that the Economist is apparently preparing to publish - that will presumably add further reasons to question the tribunal's fairness and neutrality.
As of now the civil society establishment, whatever misgivings they may have about various aspects of the current government, have been full square behind it's decision to both establish the tribunals and the process of the tribunals themselves.
There are many noble and principled reasons for this:
- terrible crimes were committed in 1971 by the Pakistan military, aided and abetted by their local collaborators;
- amongst those who supported the military - not just politically, but 'militarily' - were those who were members of the Islamic-minded parties of which the Jamaat-e-Islami were perhaps central.
- although there were some form of attempted accountability immediately after the war, many of the leaders of the Jamaat-e-Islami in 1971 had left the country or at least were not within the jurisdiction and so were not party to these mechanisms (which were in any case problematic).
- after 1975 and the assassination of the country's first president Sheikh Mujib, the Jamaat-e-Islami began to re-group so that by 1990, when the first proper democratic elections taking place, the party was able to obtain 17 seats in the parliament, holding the balance of power. Since 1990, their strength increased and their coalition with the Bangladesh Nationalist Party, three of the Jamaat's leaders - all of which were said to have been involved in war crimes during 1971 - were made leaders.
- to end impunity, and ensure accountability, trials of those alleged to have committed war crimes were necessary and in fact a legal obligation upon the government;
- the struggle for accountability has been a long one, with many political forces conspiring against it, that the trial process needed its support.
Yet civil society establishment's support for the tribunal has been pretty much unconditional. An alleged abduction of a Sayedee defense witness outside the tribunal? Not a peep. Exposure of investigation agency apparent deceit to the court about Sayedee's prosecution witnesses? No reaction.
The members of civil society establishment (if I may generalize here) have not separated out the their principled reason for supporting the holding of trials, on the one hand, from the actual process of the trials themselves, on the other. Their line of thinking seems to be as follows: because the trials should take place, nothing must get in the way of the completion of the process; whoever is criticizing the tribunals are really against the principle of accountability; so in order to ensure accountability, we must support the trials, whatever the criticisms may be.
This mindset includes those who in any other situation (not involving the Jamaat as the accused) will raise strong criticisms of other inadequate judicial and political processes taking place, sometimes at great risk to themselves. It is this civil society establishment, the strongest supporter in so many other situations of due process and proper accountability, which is blind to any concern about the war crimes tribunal.
Why have they taken such a hard line position in relation to the war crimes trials?
- there remains huge emotion relating to 1971. Many of the civil society's leaders fought in 1971 for independence, and saw at first hand terrible crimes being committed. After Sheikh Mujib's assasination, they also saw in front of their very eyes not just the reemergence of the Jamaat as a political force, but a much stronger force than they ever were before the war.
- this is not just about accountability for 1971, it is also about civil society establishment's widespread hatred of the Jamaat-e-Islami as a political force in Bangladesh. The civil society establishment is overwhelmingly secular, and see themselves as sworn enemies of everything that the Jamaat-e-Islami stands for. The trials therefore have another purpose - to weaken, if not destroy, the party.
- There is a common assumption that these men are guilty of the crimes alleged and that any defense they provide is simply an attempt to manipulate the judicial process. (Where they get this sense of absolute certainty is an interesting question to be considered another time.)
- the criminal justice process in Bangladesh is amenable to delay, corruption and manipulation which has resulted in the past in impunity for those alleged to have committed high levels of corruption and other crimes in Bangladesh. The powerful, accused of serious crimes, have again and again escaped accountability. This, they say must not happen in relation to these war crimes tribunals.
There are of course those amongst this establishment who are critical of aspects of the process - but they keep their views private. To make them public exposes them to the real risk of ostracism and abuse.
So how will this civil society establishment react to any revelations that may come from the Economist? Will they continue to assert their position that the trials must continue at all cost, that they will brook no criticism? Or will they recognize that the tribunals must meet some minimal standard of due process, as otherwise the process, however emotionally satisfying for them, may become yet another blot on the country's judicial system? Will they think that they must say something as otherwise they will be exposed to charges of hypocrisy and lack of principle? Will there be a point where they will say that however much we want accountability and the conviction of these men, the process must be a process that we can be proud of?
We will have to wait and see - but how civil society's establishment responds is the key to what will happen next. With this group of people on their side, however serious the revelations, I suggest that the government may be able to continue with the trial process without much of a hiccuped. Government and their supporter's accusations of an 'international conspiracy paid for the Jamaat' - which I am sure we will hear a lot of - play well here, and will allow the process to continue uninterrupted.
But without their support, the government may well have a problem.