Despite the frequent killings of civilians along the Indo-Bangladesh border -- one of the deadliest international borders -- by Indian Border Security Forces (BSF) over the past few decades, there have been no meaningful efforts to ensure accountability and justice for those victims.
According to Odhikar, at least 1,236 Bangladeshis were killed by the BSF between 2000 and 2020. It is often alleged that the impunity enjoyed by the BSF is a key factor for the aggravation of this situation. Hence, there has been a renewed call for justice and accountability in international law for the victims of border killings in recent times, especially after the Swarna Das incident.
Given the lack of an effective accountability mechanism in India’s legal system, as demonstrated by the Felani murder case, different international legal forums could provide a viable alternative for ensuring justice. It is pertinent to note that actions that may be deemed lawful under domestic law can still constitute a breach of international law.
In the context of breaches of international law norms, two categories of responsibility may arise: (i) State responsibility and (ii) individual criminal responsibility. These are not mutually exclusive and may coexist in a specific situation.
With respect to state responsibility, the incidents of border killings most likely violate the victims' right to life. This right is protected under Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which both Bangladesh and India are parties.
The right to life imposes on states the obligation to refrain from the arbitrary deprivation of life, to protect individuals from threats posed by non-state actors, and to conduct thorough, impartial, and effective investigations into violations. The deprivation of life through the use of force is considered arbitrary unless it is necessary, proportionate, and all non-lethal alternatives have been exhausted.
Based on the narratives of border killings reported in the media and other sources, it is reasonable to assume that India bears international responsibility for these killings due to its violation of the victims' right to life. It is well established in international law that a state may be held responsible for border killings committed by its agents under the ICCPR, even if such killings occur beyond its territory.
As a matter of fact, the existence of a breach of international norms does not automatically grant access to international courts, unlike in domestic legal systems. To access such courts, states must secure the specific consent of the defaulter state.
It has been argued elsewhere that the International Court of Justice (ICJ) may have jurisdiction over the Indo-Bangladesh border killings. The ICJ can exercise jurisdiction in disputes based on four grounds: (i) special agreements, (ii) compromissory clauses, (iii) the Article 36 optional declaration, and (iv) forum prorogatum. Unfortunately, no such jurisdictional basis exists between Bangladesh and India, and given India’s stance, it is unlikely one will be established in the future. Therefore, it is evident that the ICJ does not have jurisdiction over the Indo-Bangladesh border killings.
Regarding individual criminal responsibility, these killings could potentially constitute international crimes under the Rome Statute of the International Criminal Court (ICC). While Bangladesh is a party to the Rome Statute, India is not. In the present context, border killings might fall under the Rome Statute's definition of crimes against humanity of murder. However, establishing ICC jurisdiction presents three challenges.
Should India continue to justify its actions on fallacious grounds without addressing its accountability issues, the strains on Indo-Bangladesh relations will only deepen
First, the alleged crimes must occur wholly or partially within the territory of Bangladesh. Second, the crimes must be part of a widespread or systematic attack against civilians. Third, the actions must be attributable to individuals, whether through individual or command responsibility.
In light of the scope of the killings, fitting these incidents within the ICC’s framework poses significant challenges. However, it warrants further investigation to reach a definitive answer.
Given the limitations of these mechanisms, it is worth exploring other, albeit more limited, options. The UN Human Rights Council (UNHRC) appears to be the most appropriate forum for raising the issue.
First of all, Bangladesh and other states could highlight the border killings during India’s Universal Periodic Review (UPR) consideration. Despite India’s consistent violation of Bangladeshi citizens' right to life, the earlier government of Bangladesh did not raise this issue during India’s UPR cycles at the UNHRC.
Furthermore, the national report, UN information compilation, and stakeholders' summaries from all four UPR cycles were virtually silent on this matter. Bangladesh should not miss the opportunity to address this issue during India’s fifth UPR session in November 2027. At the same time, Bangladesh should also lobby other UN bodies and States to raise the matter before the UNHRC.
Additionally, Bangladesh could propose the establishment of an investigative mechanism under the auspices of the UNHRC or advocate for the appointment of a special rapporteur to investigate the border killings. While such mechanisms may not offer the same level of accountability as formal justice mechanisms, they can help establish the victims' right to truth and act as a deterrent factor against further killings. These efforts may also aid in eventual local and international accountability processes.
Considering that the Indo-Bangladesh border is the fifth longest in the world, interactions between people on both sides will likely continue despite the looming threat of fatal consequences. Needless to say, the arbitrary killings of Bangladeshi citizens by Indian forces are fostering a climate of tension and insecurity.
These border killings now pose a greater threat to Indo-Bangladesh relations than ever before, as evidenced by Bangladesh’s reactions following the recent murder of Swarna Das. It is high time that India comes forward with a proposal to resolve this issue on a permanent basis.
In the spirit of good neighbourliness and mutual understanding, both countries should explore the possibility of establishing a joint investigative mechanism. This mechanism should be empowered to investigate border killings in accordance with both international and domestic law and propose appropriate reparations for the victims. Such a mechanism is likely to be more effective than international courts, given that the procedures of such courts are often time-consuming and uncertain.
It is encouraging that the Bangladeshi government has recently taken a more pro-active stance on this issue, providing hope for the victims. It is now time for India to respond constructively. Should India continue to justify its actions on fallacious grounds without addressing its accountability issues, the strains on Indo-Bangladesh relations will only deepen, hindering efforts to foster good neighbourly relations between the two countries.
Quazi Omar Foysal is an international law expert, currently working at American International University-Bangladesh.