The UN resolution 260 (iii) A of 9 December 1948 in its Article 2 defined genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and transferring children of the group to another group. Moreover, Article 3 of the resolution stipulates the following acts to be punishable: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; and complicity in genocide.
Political groups are often not included within this definition. In the case of Bangladesh, the ‘genocidal' aspect is still questioned as it was considered by some to be a secessionist movement or a ‘civil war' between East and West Pakistan, whereas in reality, an unarmed population was mowed down, which eventually rose up in resistance. It can be argued that it was a political genocide that sought to alter the ideology and politics of a nation. The ICJ held that the charge of crimes against humanity could be argued. However, the Bengali perspective is that the ethnic killing of Bengalis, both Muslims and Hindus, and of the professional group of intellectuals, places the war of 1971 within the ‘category' of a genocide, being a state-organized total or partial extermination of perceived or actual communal groups.
Recognizing Genocide and the International Committee of Jurists
The international alignments of the cold war prevented any discussion of the Bangladesh genocide in the UN. India, Russia, Poland supported Bangladesh but did not table any motion to hold Pakistan to account.
On his release from confinement, Bangabandhu Sheikh Mujibur Rahman, the leader of the majority party, the Awami League, sought the help of the UN in 1972 to set up an International Crimes Tribunal to try the Prisoners of War. That help did not come. Instead he was advised to set up his own tribunal with a neutral team, notwithstanding the fact that the Nuremberg Tribunal was stacked with members of the Allied powers. Beleaguered Bangladesh was being asked to apply higher standards!
An international committee of jurists headed by Niall McDermot was set up to examine the evidence from a legal perspective to assess if the charge of genocide can be applied. The ICJ submitted its report in June 1972, making a number of debatable pronouncements that need to be revisited and re-analysed in the light of new emerging evidence, which are likely to make their conclusions appear obsolete.
For example, the ICJ report argues that the intent of genocide of Bengalis may be difficult to prove in a court of law, but not that of Hindus. But as far as Pakistan military was concerned the Muslims of East Pakistan were really Hindus at heart and therefore dispensable. The slum dwellers and children killed were not party members, and yet were indiscriminately exterminated, fueled by hatred. Even significant numbers of political party supporters were not members of any political party. Intellectuals and students were not party members, but they were the future of a nation.
The ICJ lamented that there were no clear statistical figures of the numbers killed. However, in the last fifty years, 742 mass graves have been found with the remains of 1,000 to 10,000 bodies in each (accounting for 742,000-7,420,000 bodies).
The genocidal impact of Pakistan's war has not been fully accounted for. And it is hard to believe that the Pakistani generals had no knowledge of the implications of their actions. There were a million deaths in refugee camps. Pakistan's atrocities provoked fratricidal conflict between Bengalis and Biharis, again costing many lives. The rape of 200000 to 400000 women, girls and minors led to deaths, unwanted pregnancies, abortions and suicides. Daily, 2 girls went missing from every thana or police district accounting for some 400000 abductions.
The ICJ did not treat rape as act of wartime genocide. The International Criminal Tribunal for Rwanda 1994 ruled in 1998 that wartime rape was a genocidal crime (unctr.irmct.org), thus rendering the findings of the ICJ as partially redundant. The Rwanda Tribunal also revised the understanding of ‘intent' to include ‘knowledge' that a protected group was a target of destruction, and an ‘ulterior intent' to destroy a protected group. ICJ does not consider such nuances either, largely because such understandings had not yet been arrived at in 1972.
Clemency for POWs by Bangladesh
An additional hindrance to seeking justice for war crimes and genocide, could be the fact that Bangladesh agreed to a clemency for the prisoners of war on humanitarian grounds. The stark reality was that Bangladesh was weak, had no resources, faced a devastated economy and had millions to feed. The international community did not endorse any trials of war criminals. On the contrary, they pushed Bangladesh to seek recognition from Pakistan, in order to obtain recognition from other nations, particularly the Islamic world. Separately, Pakistan threatened to try the 400,000 stranded Bengalis in West Pakistan should the POWs be tried and drew up a list of 204 people for immediate action.
Bangladesh capitulated and agreed to offer clemency on the agreement that the prisoners would be tried for war crimes on Pakistani soil. That never happened. Instead, the Hamoodur Rahman Commission was set up to investigate how it was possible for such a highly trained, well resourced army to surrender within two weeks of the start of the Indo Pakistan war in December 1971. The report vindicated the position of Bangladesh to an extent. It conceded that atrocities had occurred and that the Niazi government had got derailed into looting, debauchery, and self-aggrandizement alongside ruthless and arbitrary killings and acts of violence. But the report did not go far enough to call it a genocide. Pakistanis loathed him, and respected him for his conclusions: some dubbed him a traitor, others held him to be brave.
Elusive Justice
Bangladesh has found its search for justice to be elusive. It had taken measures to try Bangladesh based war criminals from organizations which provided the auxiliary forces to the Pakistan army in East Pakistan, such as Razakar, Al-Badr and Al-Shams. It passed the Collaborators (Special Tribunals) Order, 1972 to establish a tribunal to prosecute local collaborators who helped or supported the Pakistan army during the Bangladesh Liberation War and the 1971 Bangladesh genocide. It also enacted the International Crimes (Tribunals) Act 1973 (Act No XIX of 1973) to provide for the detention, prosecution and punishment of persons responsible for committing genocide, crimes against humanity, war crimes and other crimes under international law. Trial preparations were initiated, but could not be completed.
In 1975, Bangabandhu was assassinated. The Collaborators Order was rescinded and all proceedings under that Order were dropped. The 1973 Act, which was a parliamentary statute was not. However, subsequent military dictatorships and governments were unable or unwilling to take on this task.
It was only in 2009 that the International Crimes Tribunal (Bangladesh) was set up as a domestic war crimes tribunal to investigate and prosecute suspects for the 1971 genocide. The War Crimes Fact Finding Committee identified 1600 suspects. Indictments were issued in 2010. By 2012 political stalwarts from two prominent political parties had also been indicted for war crimes. But the main offenders from the Pakistan army, could not be held to account.
Initially, in 2009, Bangladesh had received some offers of expertise from the UN and the EU to set up the Tribunal. However, after the trials commenced there were criticisms from Human Rights Watch and certain individuals that the process was not fair, transparent, or impartial. The student wing of the Jamaat-i-Islami, the Bangladesh Islami Chhatra Shibir, called for a national strike on 4 Dec 2012 to scrap the tribunal altogether. Their protest erupted into violence. However, public opinion polls supported the implementation of the verdict even though it found the ICT to be unfair.
The war crimes trials of domestic perpetrators revealed how turbulent the issue is, and why the government treads with care. In February 2013, the Shahbag movement erupted over the life sentence verdict on Quader Molla. It was feared that he would be released if a new government was installed. The retaliatory movement in May at Shapla Chattor, by Hefazat-e-Islam, was essentially a counter offensive against the Shabag youths. But it was couched in the garb of demands to protect Islam from atheist bloggers by means of a blasphemy law. In the list of demands were included: stop infiltration of alien -culture in the name of freedom of expression and the release of all arrested ulema and students. Nevertheless, 17 cases were tried and disposed in Bangladesh, providing partial relief to an old sore.
In Conclusion: What do we want now?
Various organizations have recognized the Bangladesh genocide: Genocide Watch, Lemkin Institute for Genocide Studies, and the International Coalition of Sites of Conscience. Political opinion in various parts of the globe agree. In October 2022, a motion was tabled in the US Congress by the Republican Steve Chabot and the Democrat Ro Khanna to recognize the Bangladesh genocide. We need others to follow suit.
We need closure as our moral and human right. We want ‘never again' to mean ‘never again'. We want to question a global policy of realpolitik that offers humanitarian aid to ease gross suffering but does nothing to stop the cause of that suffering. In the interest of our humanity, we want acknowledgement of all that have been done to us. We cannot ‘forgive and forget' without restoring respect for our own dignity. We want an apology. A majority population was mowed down by a minority military entity that was on the brink of handing over power to an elected civilian body. But instead, it illegally usurped power, flouted the constitution and embarked on a suicidal mission to change the nature and fabric of that population through systematic genocidal violence, rape and massacres. The world must send a signal that this must never happen again. To this end, the international community could help Bangladesh to form an International Crimes Tribunal to try key Pakistani figures. Despite its promise to Mujib, Pakistan has failed to try soldiers on its own soil in return for clemency. Bangladesh has the moral right to do so now to assert its dignity and rightful place in the comity of nations.
For me personally, as a genocide survivor many of whose friends and relatives perished, getting acknowledgement and closure is very important. This bitter history haunts us to this day for it has mired our politics and our perceptions. The army had come looking for my academic father. My mother had a shoot on sight order on her head for daring to speak out about the atrocities. We were internally displaced, we became refugees. It is a miracle that we survived. But we also owe a debt to those we have lost, and who believed in a beautiful golden Bengal. Therefore, we must keep alive the call for recognition of the 1971 Bangladesh genocide and put our house in order.
Tazeen M Murshid, DPhil, is a historian and an author.