‘It is not about the punishment, which is just a part or the consequence of the trial. It is about discovering the truth and bringing it to the present and future generations,’ says Irene Victoria Massimino Kjarsgaard, a high criminal court rapporteur and professor in the National University of Tres de Febrero in Argentina, to Fauzia Khan, a documentary filmmaker, in an interview taken in Dhaka in December 2016.
Let us start with your introduction.
Irene Victoria Massimino: I am a lawyer. I work as a high official in the Criminal Tribunal of Cassation, which is the criminal branch of the judiciary. I have already studied state crimes for about seven years as a researcher and professor at the National University of Tres de Febrero in Argentina. One of the main subjects of my study as a researcher is genocide. I am a member of the Association of American Jurists and had been secretary-treasurer of the International Association of Genocide Scholars [from 2015 to 2017; she has been a member on the IAGS Resolutions Committee since 2017].
What is the purpose of your visit?
Irene Victoria Massimino: I came here as a guest for the winter school that the Liberation War Museum has organised. I am giving lectures on genocide, the concept of genocide and share my experiences of Argentina and the challenges that we faced in 1970 of the national tribunal in cases of Argentina, Colombia and Chile.
The concept of genocide is a major area of your work. What does the word ‘genocide’ mean in legal terms?
Irene Victoria Massimino: It has come from the international convention to prevent the crime of genocide and punish the perpetrators in 1948 as a result of the genocide that took place against the Jews in Germany. The genocide was also targeted against the gypsies and homosexuals, but mainly the Jews. The concept has brought in a lot of discussions as the intent of the genocide is to destroy, in whole or part, any of the four groups protected by the convention: religious, ethnic, racial and national.
The definition has also brought about controversies among scholars and in trials that tried to bring justice to the people who suffered as victims of genocide. Controversies surfaced as the convention protects four groups of people and if it should protect other groups that exist or may exist in future. Criticism surrounded mainly such issues within tribunals, among scholars and in the academia.
In a session, you have talked about three kinds of crime — genocidal crime, war crime and crimes against humanity. Would you elaborate on them?
Irene Victoria Massimino: The difference between genocide and the other two crimes is mainly ‘intended to destroy a group’. A number of scholars and even part of the judiciary that have dealt with such crimes have decided that the issue should dwell on mass killings. I side with others who think that it is not only physical destruction, but also, importantly, the intention to destroy the cultural identity and the destruction of the identity of people.
So, perpetrators of genocide have the intention to destroy the identity of people; they say that the ‘other’ is incorrect. The holocaust could be a very good example because it killed, eliminated or neglected the Jews in Germany as the Jews were not Germans; they were the ‘other’. And this is what happens in genocide. It happened in many countries of Latin America in the 1970s.
And war crimes are the crimes committed within the context of conflict, which is defined in the definition of war — crimes committed against the principles of the Geneva Convention such as killing prisoners or torturing them. It is forbidden to kill prisoners of war; it is forbidden to kill civilians in a war. There are, of course, civilian casualties. We need to establish if civilian casualties fall within the war crimes.
Crimes against humanity is a broad concept. It implies systematic killing, systematic torture and systematic disappearances of people. The ‘intent’ is missing here and this makes crimes against humanity different for genocide. As crimes against humanity is a broad concept, they include many other crimes such as the violation of important principles of legality, which suggests that such crimes have to be specific. It cannot be subjected to interpretation because, then, there could be a risk of applying criminal law generally.
What are Argentine experiences of the trial?
Irene Victoria Massimino: We went through dictatorship in 1976–1983 when atrocious crimes were committed. Disappearances of people took place. The number of such people was, of course, much smaller than what happened in Bangladesh or in other places. It was about 35,000. But I always say that it is not about the number but about the destruction of the social fabric of a community and the destruction of the whole nation.
So all such crimes took place under the military or civic military dictatorship which were brought to justice for the first time in 1985. In 1985, it was the trial of a relatively small stature because the main perpetrators were brought to justice. Because of the political situation that time, when the military still had the political power, we were in a difficult economic time. We had high inflation. Decisions to try people below ranking military officials, controversies surfaced. Two laws were passed and two ordinances were promulgated, which prevented the trial.
In 1987, all the trials stopped and a period of impunity began. It happened in many countries that suffered from internal or external conflicts or where external intervention created internal conflicts as was the case in Bangladesh. The impunity period lasted till 2003. Civil society organisations, meanwhile, did a lot, held protests inside the country and empowered themselves. In 2003, the political situation gave us the chance to reopen the trial and the Congress annulled the two laws and the ordinances by enacting another set of laws. In 2005, the Supreme Court declared the previously enacted laws unconstitutional, allowing the reopening of the trial for the second time.
The trial in Argentina was done keeping to domestic laws?
Irene Victoria Massimino: Yes.
How did you start? Was not Argentina ruled by military that time?
Irene Victoria Massimino: No. The military regime ended in 1983. The first trial was in 1985 that tried the juntas. That was a national tribunal keeping to a domestic law as well. In the second set of trial, the process began in 2003. And the tribunal was based on domestic laws. We have democratic government since 1983, but with ups and down. Yet, it did allow us to mobilise support for the trial and the process of justice.
The process is now in the federal system. The trial began in 2005 in federal tribunals. They respect the international conventions that we have signed. As we have the principle of non-retroactivity, we have to apply the law that was valid at that moment the crimes were committed.
Was it a special tribunal?
Irene Victoria Massimino: No, there was no special tribunal. The tribunal to judge the juntas was also an ordinary tribunal. Federal courts are located all over the country and each tribunal has two to 10 cases, which speeds up the process. The trial was divided in three parts although some say in four parts, but that was a procedural issue. In 2009, there were 200 witnesses and 19 accused. I would say that the legal procedure was quite inconvenient for that sort of trial.
What is your observation about the International Crimes Tribunal in Bangladesh?
Irene Victoria Massimino: Bangladesh has many of the challenges that we had. This is my second time in Bangladesh. When I came here first, I could attend the trial. For a couple of years, I had studied the whole process of justice in Bangladesh. I see many commonalities regarding the challenges.
I find that there are strong efforts to discover the truth that we had in Argentina. It is not about the punishment, which is just a part or the consequence of the trial. It is about the recognition of the victims’ efforts in the war of liberation in Bangladesh. It is about discovering the truth and bringing it to the present and future generations.
I always talk about what the International Crimes Tribunal of Bangladesh had done regarding sexual violence. In this respect, we are far behind in Argentina. Procedurally, we have not been able to bring sexual crimes to trial individually and specifically as victims had wished. We might do it in future. The Bangladesh tribunal has given inputs to the interpretation of genocidal rape. But the challenges are enormous. We must remember that genocide is a political crime and it has political consequences. Running the trial is also a political decision. I know that the Bangladesh tribunal was criticised a lot internationally. In Argentina, we were just ignored — neither criticised nor congratulated.
How would you evaluate the Bangladesh tribunal in the light of the Geneva Convention and other genocide tribunals of the world?
Irene Victoria Massimino: Such an evaluation cannot be made in the light of the Geneva Convention as the convention does not give any procedural rules to pursue judgements. The Bangladesh tribunal was set up by the 1972 act immediately after the genocide happened. It happened in the Nuremberg trials. It happened with other international tribunals. They were created after the wars. I think that it was probably the best option for Bangladesh to establish specific courts to investigate and try crimes committed during the liberation war. There was criticism but procedures, keeping to the international laws and the domestic laws, have been adhered to.
The International Crimes Tribunal, Bangladesh is trying people for genocidal crimes, crimes against humanity and so on using the domestic law. What is your opinion? Is this fine?
Irene Victoria Massimino: I think it is. It depends on the circumstances of each country. The International Criminal Court is only a subsidiary body. It can only act when national tribunals cannot and when national situations do not allow such trial. It is essential that national tribunals carry on such trials. I have always believed that international organisations may have interest but it can be different from the national interest. There are also issues of culture, history and language, for example. Many members of international tribunals do not speak the language of the people involved. It creates a distance between the tribunals and the whole process. I, therefore, believe that national tribunals are extremely important. We have seen it in the case of Argentina, Bangladesh, Chile and Guatemala.
There has been criticism as to why the trial is needed because the crimes happened long ago. Why do we need such trials?
Irene Victoria Massimino: Judicial claim for crimes never expires. There is no time limitation. The main thing is that we need justice, no matter how old the crimes are. We should go for justice immediately. But it sometimes becomes impossible because of political reasons. After 1971, the nation’s leader was killed. So, you had a strong political instability. In Argentina, there were coups and we had no democracy. There was instability. It was difficult to try the crimes at that time. But such difficulties should not stand in the way of justice in future. Some victims are still alive and they still look forward to justice. Some crimes are still committed. In Argentina, for example, children were abducted and the mothers were later killed. The children were given to the families usually related to the military and these children have not recovered their identity. It was the destruction of their identity, which is a crime being continued.
It does not matter how old the crimes are. It is about history. It is about justice. It is about finding the truth. Even if the trials had been immediately done after the crimes, in Bangladesh, Argentina or in Chile, there would have been opposition. Here, the Pakistani army committed genocide with local collaborators. These collaborators certainly have other people who sympathise with them. It was the same in Argentina; perpetrators have their sympathisers among civilians. They opposed the trial as they do now. I do not see time being a problem. I see time being a problem for impunity as perpetrators die, evidence is lost and victims die without justice.
Say something more about the Argentine situation. Who were the people who disappeared?
Irene Victoria Massimino: As is known across the world, the Cuban revolution succeeded in 1959. It was a socialist-communist revolution or Marxist-Leninist as Fidel Castro used to say. Cuba had been in a good shape with socialism in many ways. It was a success in terms of equality. In a year and half, there was no illiteracy. Many Latin American countries witnessed that. There was repression in other countries. One commonality among the countries in Latin America, as was the case with Argentina, was landed property. The ownership of the land lay in the hands of a very few people. And the gap between the rich and the poor was one of the highest in the world. Latin America was the most unequal region, having the highest difference between the rich and the poor. The success of the revolution, on the one side, and oppression, on the other, brought about the revolutionary spirit which started to create armed factions within different political parties.
Against the backdrop of the success of the Cuban revolution and socialist-communist ideas in Latin America, the United States started supporting a plan called ‘the national security programme.’ I have just found out that the United States declassified a lot of documents of Plan Congo, which is a transnational organisation, on the prosecution of the leftist.
The persecution of the leftist finally led to dictatorship. And the dictators had plans to eliminate, what they called ‘subvert, anyone who is Marxist, leftist, Leninist, socialist or communist’. And not only did the party members disappear, everyone who was subversive in the eyes of the perpetrators also did. Anyone whose phone number was, for an example, found in the notebook of someone who is a member of the Communist party was persecuted. In the case of Argentina, this process was called the national organisation process — the reorganisation of society under western and Catholic values. It was, thus, an idea of changing the identity of the whole nation. The process began with abduction and ended in disappearance through torture. The idea of disappearance, which happened all over, became quite normal for the Argentine case.
I see some similarity between Argentina and Bangladesh. Many in Argentina disappeared. In the 1971 war, many of our people also disappeared. What is your observation about this?
Irene Victoria Massimino: You talk about similarities but I have to tell you about main differences. Because similarities are there in the way of killing, torture, and the persecution of the intellectuals. Today is the day when the intellectuals were killed. It is a day to honour them. In Argentina, intellectuals were persecuted as well. In Chile, famous singer Victor Hadlof, for example, was killed. Many of his protest songs were perceived as socialist, talking about equality, freedom and anti-colonialism. Many of our intellectuals were persecuted. We do not have specific days. The days are not remembered as they are in Bangladesh, where the intellectuals were taken to a killing field and were killed. But in Argentina many had to flee the country as books were burnt, songs were prohibited and gathering was forbidden. This is where I find similarities. The atrocity is similar. And probably the biggest difference was in the number of people being killed. The number of people killed amounted to about three million here. This is an enormous figure, so was the consequence. The distortion of social issues was enormous and so was the destruction of identity, which is very clear in the Bangladesh genocide. And I think that the sexual violence here was quite atrocious as well. Sexual violence was perhaps not that widespread, but it was quite common as well.
In your lecture, you have referred to social movements. Why are social movements important for the trials?
Irene Victoria Massimino: Crimes of the sort of genocide, war crimes, crimes against humanity or human rights violation are always committed by state. If you do not have the will and the power of social movements, it is very difficult for the state to decide on carrying out the trial or pursuing justice. I think unless you have the strength of people, it would be really difficult to pursue justice or to have the state decide on the trials of its own perpetrators. It pushes the process of justice.
Are trials in your country still going on?
Irene Victoria Massimino: Yes, our trials are still going on. I do not know how long it would take, but files are still being opened, new claims are made and fresh investigations are started.
The Bangladesh genocide is not much mentioned in the history of genocides. How do you see this?
Irene Victoria Massimino: My observation is always critical of this. I think some countries are ignored. I was asked a similar question a few days ago: why do people not talk about the Bangladesh genocide? Why is it not known more worldwide? Some cases of death matter more than others. We see a number of attacks taking place in Europe and the Middle East. And nobody in the Middle East protests at the attacks. Everybody highlights the incidents that take place in Europe. If the number of death mattered, it is greater in number in the Middle East than it is in Europe. The cases in the Middle East come in focus only when there is an economic or military interest.
Such is the case with powerful nations such as the United States, which opposed the independence of Bangladesh. For the United States, Bangladesh has no political or economic importance and you are, therefore, ignored. I think that we, the developing countries that have suffered such violence and external intervention, must share our experiences for the world to know.
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