The human suffering of 1971 should inspire the protection of human rights in the present and in the future
In 1971, the concern of the international community during our War of Independence was largely focused on refugees and calls for a political solution. International criminal law was dormant during the Cold War, and witnessed a renaissance only after the breakup of the Soviet Union.
In 1971, a clear reference to international law was made in the Instrument of Surrender on December 16, which referred to the Geneva Convention to ensure proper treatment for prisoners of war (PoWs).
Pakistan filed a case against India in the International Court of Justice in 1973 as a pressure tactic to secure the return of 195 senior PoWs accused of war crimes by Bangladesh. Pakistan withdrew the case after the United Nations launched repatriation operations across the sub-continent. This operation resulted in the repatriation of thousands of Bengali families stranded in Pakistan.
The 1974 tripartite agreement between India, Pakistan, and Bangladesh allowed the repatriation of 195 senior PoWs to Pakistan. Despite clemency, the text of the tripartite agreement declared that the PoWs were involved in “war crimes, crimes against humanity, and genocide” in the eyes of international law, including “relevant provisions of the UN General Assembly resolutions.” At the time, the tripartite agreement was seen as a confidence-building measure towards regional peace.
Jurists often refer to the law-making process to establish what the framers of a law had intended. The delegations to the tripartite conference were headed by Dr Kamal Hossain of Bangladesh, Sardar Swaran Singh of India, and Aziz Ahmed of Pakistan. It would be prudent to determine the specific UN resolutions in the minds of the drafters of the tripartite agreement.
The United Nations General Assembly recognized genocide as a crime under international law in 1946. UNGA Resolution 96 (I) was inspired by the process to hold the perpetrators of the Holocaust to account. UNGA Resolution 96 (I) included “religious, racial, political, or any other grounds” as criteria to qualify as a protected group that may be vulnerable to genocide.
The Genocide Convention was adopted by the General Assembly in 1948. It came into force in 1951. The state of Pakistan, which at the time included Bangladesh, signed the Genocide Convention on December 11, 1948 and ratified the convention on October 12, 1957. Therefore, Pakistan has been under a treaty obligation to prevent genocide and to punish any perpetrators of genocide.
Under Article 2 of the Genocide Convention, protected groups include “national, ethnical, racial, or religious” groups -- these criteria are evidently reworded from the text of UNGA Resolution 96 (I). Academics have scrutinized the importance of self-determination in defining a protected group, particularly a national group. The framers of the Genocide Convention agreed to omit “political” grounds in exchange for adding ethnic groups as part of a trade off with communist countries.
The elements of the crime of genocide against a protected group include facing elimination “in whole or in part” -- conditions that include mass killings, serious bodily or mental harm on a mass scale, the deliberate infliction of life conditions to bring about a physical destruction of the group, birth control, and the forced transfer of children to other groups.
The fourth Geneva Convention is highly relevant to the Liberation War. Pakistan signed this convention on August 12, 1949 and ratified it on June 12, 1951. Article 3 of the convention concerns non-international armed conflicts and states that persons not involved in hostilities should be “treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth” and that they should not be subjected to “violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture,” “taking of hostages,” “outrages upon personal dignity, in particular humiliating and degrading treatment,” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.”
India’s entry into the Liberation War on December 3, followed by Bhutanese and Indian recognition of Bangladeshi sovereignty on December 6, clearly transformed the situation into an international armed conflict. UNGA Resolution 2793 described the hostilities between India and Pakistan as an “immediate threat to international peace and security.” The resolution also emphasized the protection of civilians.
Therefore, all international humanitarian law treaties were relevant to the conflict and were applicable to all warring sides. The massacre of unarmed intellectuals and civilians in the final days of the war was a manifest violation of the law of armed conflict.
There has to be legal and academic scrutiny of this war from the perspective of international law. The human suffering of 1971 should inspire the protection of human rights in the present and in the future.
Umran Chowdhury works in the legal field.