The Events in
The Secretariat of the International
Commission of Jurists
Part I: Introduction
Part II: Outline of Events in
Part III: Legal Position under Pakistan Law
Part VI: The Role of the United Nations
Part VII: The Role of India
In September 1971
an international conference of jurists convened in
'To enquire into the reported violations of human rights and the rule of law in East Pakistan since March 1, 1971, and, insofar as they are shown to be well-founded, to enquire into their nature, extent and causes and to report, with recommendations.'
The Indian Government and the provisional Government of Bangladesh agreed to cooperate fully with the Commission, but unfortunately the former Pakistan Government refused their cooperation, contending that the subject of the enquiry was a purely internal matter.
were due to leave for
However, as a great deal of valuable documentary evidence had been collected, together with some oral evidence, it was decided that the Secretariat of the ICJ should prepare this Staff Study covering the same ground as the proposed Commission of Enquiry .The scope of the Study was extended to consider the application of the right of self-determination of peoples, the role of the United Nations and the role of India.
This Staff Study
contains a factual account of the events which occurred in
The discussion of the legal issues deals with some highly controversial subjects, but whenever we have formed a view on these issues, we have thought it better to state our view clearly without equivocation. In doing so, we wish to stress that this is a Staff Study for which the Secretariat is alone responsible. It does not commit the individual Members of the International Commission of Jurists.
We have sought to make this Study as objective as possible but recognize that we have suffered from the disadvantage that the former Pakistan Government refused to cooperate in helping us to obtain evidence from their side. Nor have we had an opportunity to obtain the comments of President Bhutto upon our text, and in particular upon our references to him.
We wish to express our gratitude to all those who have helped us in the preparation of this Study. We wish to acknowledge in particular the assistance we have received from the following books: The Pakistan Crisis, by David Loshak, Heinemann, London, 1971; The Great Tragedy, by Zulfikar Ali Bhutto, Pakistan People's Party, 1971; The East Pakistan Tragedy, by L. F. Rushbrook Williams, Tom Stacey, London, 1971; The Rape of Bangladesh, by Anthony Mascarenhas, Vikas Publications, Delhi, 1971; the White Paper on the Crisis in East Pakistan, Government of Pakistan, 1971; Bangla Desh Documents, Ministry of External Affairs, New Delhi, 1971; and from articles and reports by journalists, in particular the following: Peter Hazelhurst, The Times, London; Martin Woollacott and Martin Adeney, The Guardian, London; Simon Dring and Clare Hollingsworth, The Daily Telegraph, London; Sydney H. Schanberg and Malcolm W. Browne, The New York Times and International Herald Tribune; Henry S. Hayward, Christian Science Monitor.
Niall MAcDERMOT, Secretary-General
International Commission of Jurists
A study of the East Pakistan crisis of 1971 calls for at least a brief summary of some of the events which led up to it.
The state of
The struggle for independence in the Indian sub-continent had been waged between the two world wars. At first, both Hindus and Muslims thought in terms of a federal state, but after the serious communal riots which accompanied the provincial elections in 1937, Mr. Jinnah, the Muslim leader, supported the demand for partition.
In 1940, the
Muslim League held a Conference at
'That geographically contiguous units be demarcated into regions which should be constituted with such territorial readjustments as may be necessary, that the areas in which the Muslims are numerically in a majority as in the North-Western and Eastern zones of India should be grouped to constitute independent states in which the constituent units shall be autonomous and sovereign.'
At that Conference Mr. Jinnah said that Hindus and Muslims could never evolve a common nationality.
By 1946, opinion
in the Muslim League had moved in favor of a single state of
'That the zones comprising Bengal and Assam in the North East, and the Punjab, North-West Frontier Province, Sind and Baluchistan in the North West of India, namely Pakistan zones where the Muslims are in a dominant majority, be constituted into a sovereign independent state, and that an unequivocal undertaking be given to implement the establishment of Pakistan.'
Efforts by the
British Government to maintain the unity of the sub-continent in a federal
state proved abortive. The 1946 British Cabinet Mission' suggested a three-tier
federation, with a central government responsible for foreign affairs, defense,
and communication, two regions, one comprising the predominantly Muslim
provinces and one the predominantly Hindu provinces each responsible for such
other matters as were assigned to them by the provinces, and provinces
with all residuary powers'.1 They proposed a constituent assembly to
draw up a constitution on this basis. At first the plan was accepted by both
the Muslim League and the Indian National Congress, but shortly afterwards Mr.
Nehru criticized the plan in terms which, it may be noted, were later
paralleled by the
When it became
impossible to achieve agreement on a single state, the British Government
resolved to give independence on a basis of partition. The state legislators
representing those parts of the Punjab and
British parliament passed the Indian Independence Act, 1947, and the two
separate states of
The name of
The new state of
At the time of
partition, millions of Muslims migrated from
majority of the population (55 %) lived in
Instead of setting
out to rectify the imbalance, the leaders of the new state appeared insensitive
to the aspirations of the Bengali majority. As early as 1948, in a speech at
Moreover, the disastrous conflict with India over Kashmir, which was of burning importance to the Western wing, was a remote issue to the Eastern wing, and the economic break with India which followed it had the effect of cutting East Pakistan off from their natural trading partners in the adjoining Indian provinces. East Pakistan became a captive market for the high priced goods of the new West Pakistan industry, and found that their area, whose jute and tea crops provided two thirds of the country's exports, received less than a third of its imports, less than half of its development funds and less than a quarter of its foreign aid.
The initial period
of parliamentary democracy in
The army, led by
General Ayub Khan, decided to take charge and there followed 13 years of
military rule, lasting until the fall of President Yahya Khan in December 1971.
The new military regime, aided by the civil servants, achieved a great deal in
tackling many of
From the time of
the new Constitution in 1962,
had first been largely eradicated under Ayub's presidency, became rife again.
Social inequality increased, with two thirds of the country's industrial wealth
and four fifths of its banking and insurance concentrated in the famous 22 west
wing families. After the
In 1969, faced with growing disorder, President Ayub Khan attempted to negotiate with opposition leaders on the basis of constitutional and economic reform. Political prisoners were released, including the former Foreign Minister, Mr. Bhutto, and the Awami League leader, Sheikh Mujibur Rahman, who was then being tried on the Agatarla conspiracy case. But the attempt failed. The army was not prepared to yield to the demands from the opposition parties of both wings for full democracy with direct elections, abrogation of the emergency regulations and of press censorship, and wide-spread nationalization. Still less would they grant the demand from the Eastern wing for substantial autonomy on the basis of the Awami League's Six Points. Rioting continued and the resultant breakdown led President Ayub Khan to hand over power to General Yahya Khan.
With the re-imposition
of martial law, order was soon restored. Confidence was established by General
Yahya Khan's declared intention to return the country as soon as possible to
civilian rule. Within four months of taking over, he ordered preparation of
electoral lists on the basis of universal franchise. In November he promised a
general election on October 5, 1970, to elect a constituent assembly, and
allowed the parties to start campaigning on January I. The elections were for
the first time to be held on the one-man, one-vote principle, which assured
On March 28, 1970, President Yahya Khan published the Legal Framework Order, laying down the conditions and procedure for establishing a new constitution. The essential conflict between the two wings is revealed by comparing the 'fundamental principles of the Constitution' contained in clause 20 of the Order with the Awami League's Six Points Both agreed that Pakistan should be a federal republic but the differences lay in the conception of the Central Government's powers The Six Points declared that the Federal Government should be responsible only for defense and foreign affairs; there should be two separate mutually convertible currencies or, if one currency, regional reserve banks to prevent the transfer of resources and flight of capital from one region to the other Fiscal policy was to be the responsibility of the federating units, who were to provide the central government with the necessary resources for defense and foreign affairs The regional governments were to be responsible for foreign trade and aid, and were to be empowered to maintain their own militia or paramilitary force The 'fundamental principles' in the Legal Framework Order proclaimed that 'Pakistan shall be so united in a Federation that the independence, the territorial integrity and the national solidarity of Pakistan are ensured, and that the unity of the Federation is not in any way impaired '. The provinces were to have. maximum autonomy, that's to say maximum legislative, administrative and financial powers 'but the federal government was to have adequate powers, including legislative, administrative and financial powers, to discharge its responsibilities in relation to external and internal affairs and to preserve the independence and integrity of the country,'
There was an obvious conflict here. The exclusion of foreign trade and aid from the purview of the central government as proposed by the Six Points, would deprive it of real control over foreign policy, and its inability to levy taxes directly would subject its defense program to a veto by the provinces The Awami league leaders never succeeded in showing convincingly how the Six Points would give the central government any real control over foreign affairs and defense.
In spite of these implications of the Six Points, President Yahya Khan allowed the Awami League to campaign on the basis of the Six Points He could hardly have been expected to foresee Sheikh Mujibur Rahman's astonishing victory in the subsequent elections, giving the Awami League an absolute majority in the Assembly He no doubt assumed that, when it came to the point, Sheikh Mujibur, whom he knew to be a realistic politician, would be prepared to compromise substantially on the issue of central government powers.
Owing to the
cataclysmic cyclone which ravaged the coastal district of East Bengal on the
night of 12/13 November, the elections were postponed until December When the
election was eventually completed, the Awami league had won 167 out of the 169
East Pakistan seats, and Mr. Bhutto's Pakistan Peoples' Party had won 85 of the
result was contributed to by the strong reaction of the people of East Pakistan
against what they believed to be the callous indifference and neglect of
President Yahya Khan and the
Under the Legal Framework Order, the President was to decide when the Assembly was to meet. Once assembled it was to frame a new Constitution within 120 days or stand dissolved. On February 13,
President announced that the National Assembly was to meet at
On December 22, the Secretary of the Awami League, Mr. Tajuddin Ahmed, claimed that his party having won an absolute majority had a clear mandate and was quite competent to frame a constitution and to form a central government on its own. Sheikh Mujibur Rahman, with greater realism, declared on January 3 that his party would not frame a constitution on its own, even though it had a majority. He refused, however, to negotiate on the Six Points, saying that they were now public property and no longer negotiable.
This was the crux
of the conflict. The majority party in the west, led by Mr. Bhutto, was
convinced that a Federation based on the Six Points would be a Federation in
name only. At best it would lead to a feeble Confederation, unable and
unwilling to maintain a tough policy towards
Khan, who had publicly described Sheikh Mujibur Rahman as the 'future Prime
Minister of the country' on January 14, seemed to be sparing no efforts in
seeking to find a way out of the impasse, but to no avail. In truth no
compromise was possible so long as both sides continued to regard the central
issue of economic independence for
willingness Sheikh Mujibur Rahman might have had to compromise on the Six
Points in other circumstances, his absolute electoral victory made it
impossible to do so. It was not that he was too weak to oppose the extremists
in his party; he had frequently done so before with courage and success. But to
renounce on the Six Points which were essential to achieve real autonomy,
particularly economic autonomy, for
There is some
evidence to suggest that by February 15, the military leaders in the west had
already reached a decision that the Bengalis should, if necessary, be
frustrated by force of arms from achieving the autonomy on which they were so
plainly bent. President Yahya Khan, as will be seen, continued to seek a
political solution, or at least went through the motions of doing so, but in
the mean time the military build-up of West Pakistan forces in
On February 19,
the army moved out of their cantonment at
On February 21, President Yahya Khan dismissed his ten man civilian cabinet and called in all five provincial governors and martial law administrators. The army had taken over full control.
On February 26, 27
and 28 the Awami League met in conference in
On February 28, Mr. Bhutto demanded that either the 120-day limit for the Constituent Assembly be removed or the opening session be postponed, declaring that if it was held on March 3 as planned, there would be a hartal (general strike) throughout West Pakistan from Preshawar to Karachi '.
President Yahya Khan responded in a broadcast the next day by postponing the Assembly indefinitely.
1 Gledhill, A., 1957, Pakistan, Stevens & Sons Ltd.,
2Op cit., p. 61.
3Rushbrook Williams, L., 1972, The East Pakistan Tragedy, Tom Stacey
4Loshak, D., 1971,
5Loshak, D., op cit., p.18.
(a) 1-25 March, 1971
postponement of the Constituent Assembly came as a shattering disillusionment
to the Awami League and their supporters throughout
Mujibur Rahman's reaction was to call a five-day general strike (hartal)
first the army tried to assert their authority and this resulted in
from March 3, the army were ordered to return to their cantonments and remained
there until March 25. The
from some serious riots in
'At Chittagong, violent mobs led by Awami League storm troopers attacked the Wireless Colony and several other localities, committing wanton acts of loot, arson, killing and rape. In one locality (Ferozeshah Colony), 700 houses were set on fire and their inmates including men, women and children were burnt to death. Those who tried to flee, were either killed or seriously wounded. Apart from those burnt alive, whose bodies were found later, over 300 persons were killed or wounded on 3 and 4 March.'1
to information received from foreign nationals in
March 3, President Yahya Khan invited 121eaders of the main political groups in
the newly elected National Assembly to meet at
his press conference on 2 March, Sheikh Mujibur Rahman stated that the Awami
League would hold a public meeting at Dacca on 7 March where he would' outline
a program for achieving the right of self-determination for the people of
Bengal'.2 This phrase was, of course, an allusion to the principle
of self-determination of peoples under the Charter of the United Nations. The
general expectation was that he would then declare the independence of
me make it absolutely clear that no matter what happens, as long as I am in
command of the Pakistan Armed Forces and Head of the State, I will ensure
complete and absolute integrity of
On 7 March. Sheikh Mujibur replied by putting forward four demands which had to be accepted before the Awami League would consider attending the National Assembly. These were:
(I) immediate withdrawal of martial law;
(2) immediate withdrawal of all military personnel to their barracks;
an official enquiry into army killings in
(4) immediate transfer of power to the elected representatives of the people (i.e. before the National Assembly met).
fifth demand was added later that reinforcements of army units from
The first four demands were in effect a demand that President Yahya Khan should accept the then status quo. According to the Awami League representatives these demands were never in terms rejected. It was clear, however, that for President Yahya Khan to have implemented formally the first and fourth demands would have amounted to a complete surrender. The second was already in force and the third was accepted in principle, though agreement was never reached on the form of the enquiry. The fifth demand, of course, was not accepted.
As from 7 March, the general strike was replaced by a 'return to normal. under what amounted in fact, though not in name, to a provisional government by the Awami League. The civil service, police. even the judges acknowledged the authority of their' directives'. The new governor, General Tikka Khan was unable at that time to find anyone prepared to swear him into office. Gradually the shops, banks and offices began to open again. Some acts of violence did of course occur but, contrary to the contention of the Pakistan Government in their White Paper3, the Awami League leaders were in general successful in maintaining the non-violent character of the resistance. Indeed, even in the White Paper the only killings alleged to have occurred between 6 and 24 March were:
(a) the killing
of a demonstrator by a shopkeeper whose shop was being attacked at
(b) the killing of two escaping prisoners by police at Comilla on 12 March, and
the killing of 3 people by the army when barricades were formed at Joydevpur on 19 March. (At the time, Bengali police estimated that about 15 civilians were killed by the army in this incident.4)
Not a single person is alleged to have been killed by mobs or by supporters of the Awami League between those dates.5
Awami League leaders were determined to maintain the policy of non-violence.
Several incidents bear witness to this. It is reported that order was restored
was, it is true, a non-cooperation movement going on at the time. ...It could
be said that the de facto government of the country was then in the hands of
Sheikh Mujibur. But to speak of a break-down of law and order is a great
exaggeration. There was both law and order. The non-cooperation, apart from the
one incident in
We do not suggest that there were no other acts of violence during this period. There is evidence to show that attacks were made on non-Bengalis in Rangpur during the week ending March 13, and at Saidpur on March 24, during which shops and properties were burnt and a number of people killed. But considering the state of tension which prevailed, the extent of the violence was surprisingly restricted. Students and Awami League supporters were, however, preparing themselves for an eventual armed conflict. Many accounts have been given on the Pakistani side of looting of arms and ammunition and preparation of petrol and hand-made bombs manufactured from stolen chemicals. While the army remained in their cantonments, they were subjected to a blockade by Awami League supporters, so that fresh rations and other civilian supplies were prevented from reaching them. This action added to the fury of the army attack when it came.
March 15 President Yahya Khan flew again to
to the Pakistan White Paper, by 20 March President Yahya Khan had provisionally
agreed to make a proclamation providing for an interim constitution until a new
constitution had been drawn up by the National Assembly. Under the interim
constitution, Yahya Khan was to continue as President and Head of State under
the 1962 Constitution with a Cabinet of Ministers selected from representatives
of the political parties of East and West Pakistan; the powers of the central
legislature were to be as provided in the 1962 Constitution save for' certain
limitations and modifications to be agreed upon with respect to the Province of
East Pakistan' ; Provincial Governors were to be appointed by the President and
Provisional Cabinets appointed from the members of the Provincial or National
Assemblies to aid and advise the Governors; martial law was to be revoked as
from the day the Provincial Cabinets took office, but if ever it appeared to
the President that a situation had arisen in which the government of a province
could not be carried on, the President was to be able to assume to himself the
executive government of the province. All this was to be subject to the
agreement of other political leaders and to the 'all-important question of
legal validity '. This referred to an objection raised by President Yahya
Khan's advisers that if martial law was revoked, the instrument establishing
the Central and Provisional Government would have no legal validity; 'a
constitutional vacuum would therefore be created in the country '. Considering
the number of constitutional irregularities which had already occurred in the
short history of the state of Pakistan8, this objection showed a
surprising degree of constitutional sensitivity. Mujibur Rahman's legal expert,
Dr. Kamal Hossein,9 was convinced that there was no validity in the
objection. He suggested, and it was agreed, that the opinion should be sought
of the leading
unexpected degree of progress which had been made in the talks led President
Yahya Khan to call Mr. Bhutto to
23rd March was 'Pakistan Day', and was provocatively declared in
On the same day his representatives produced to the President's advisers a draft proclamation going well beyond the proposals which appeared to have been provisionally agreed three days earlier and, in one important respect beyond even the Six Points. The Awami League draft, which is set out in full as an appendix to the White Paper 13 provided for:
1. martial law to stand revoked in a province from the day when the Provincial Governor (who was to be irremovable) took office, and in any event within seven days of the proclamation;
2. members of the National Assembly from' the State of Bangladesh , were to sit as a separate Constituent Convention to frame a constitution for the State of Bangladesh within 45 days, and members from the States of West Pakistan (Punjab, Sind, North-West Frontier Province and Baluchistan) were to do likewise for a constitution for the States of West Pakistan;
3 the National Assembly was then to 'sit together as a sovereign body for the purpose of framing a constitution for the Confederation of Pakistan' (not, as in the Six Points, a Federation), and the President was to be deprived of the power of veto which he had reserved for himself under the Legal Framework Order;
provincial government and legislature of
the face of them, these provisions would have ensured complete freedom for
When by March 20 a fair amount of agreement seemed to have been reached on an interim constitution, the Awami League representatives urged President Yahya Khan to bring over a statutory draftsman to draw up the necessary proclamation. President Yahya Khan kept pressing the Awami League to produce its own draft. Unwisely perhaps, they eventually agreed to do so. In the circumstances, and with no agreement secured from Mr. Bhutto, the Awami League could hardly have been expected to draft a compromise proposal. Their draft (which appears to have been based on their draft constitution prepared for submission to the Constituent Assembly) expresses their negotiating position. They claim that they put it forward, not in the belief that it would be accepted in full, but expecting it to lead to more specific negotiations. Moreover, they contend that at no stage were their proposals rejected by President Yahya Khan, who kept referring matters for discussion by the expert advisers on both sides. The Awami League representatives are now convinced that President Yahya Khan never had any intention of reaching an agreement with the Awami League, and was merely playing for time.
Others believe that President Yahya Khan would, for his part, have been ready to accept an accommodation with the Awami League but that agreement could not be achieved with Mr. Bhutto. For example, the Times correspondent, Mr. Peter Hazelhurst has written:
was Bhutto who finally brought the President to take the decision which set
to the White Paper, the talks broke down because the Awami League
representatives were not prepared to compromise on the essential features of
their proposed proclamation15, and because their proposals were
unacceptable to Mr. Bhutto or to the other party leaders from
is impossible to reconcile the accounts given by the two sides. Wherever the
truth lies, it can be said that the Awami League believed that the election
results, coupled with the complete support they had received from the people
and all organs of government in
The White Paper asserts that reports had become available of Awami League plans to launch an armed rebellion in the early hours of 26 March, and puts this forward as the explanation and justification of the army's action.18 According to the White Paper the operational plan was as follows:
Regiment troops would occupy
the remaining East Bengali troops with the help of the East Pakistan Rifles and the police would move to eliminate the Armed Forces at various cantonments and stations;
the East Pakistan
Regiment would occupy border posts to keep it open for aid, arms and ammunition
Indian troops would come to the assistance of the Awami League once the latter succeeded in occupying the key centers and paralyzing the Pakistani army.
The source of this information is not given, but it seems inherently probable, as well as being consistent with subsequent events, that there would have been a contingency plan of this nature. It must have been evident to all concerned that if the political talks broke down, the army would leave their cantonments and use force to restore the authority of the martial law regime and bring the' non-cooperation movement' to an end. The only alternative to surrender would then be armed resistance. Reports that the talks were foundering was common knowledge by the evening of March 24 and this resulted in outbreaks of violence in a number of centers on 25 March.
We do not feel able to accept that the army's action was caused by a discovery of an Awami League plan to launch an armed rebellion. Rather, it was caused by President Yahya Khan's decision to break off further negotiations and reassert his authority. The nature of the action taken was, however, influenced by the knowledge that it would convert the hitherto passive resistance into an armed resistance by defecting East Bengali troops and police and by those Awami League supporters and students who had succeeded in collecting arms.
The White Paper also asserts that' the action of the Federal Government on 25 March, 1971, was designed to restore law and order, which had broken down completely during the period of the Awami League's 'non-violent, non-cooperation' movement'.19 As has been seen, the charge that there had been a complete breakdown of law and order is not justified, at least up to 24 March. The break-down in law and order which then occurred was a consequence of the breakdown in talks, of the decision to reassert the authority of the army and of the armed resistance to that decision.
Crisis in East Pakistan, Government of
2Washington Post, 3 March 1971.
3Op. cit., p. 15.
4Martin Adeney, Venture, Vol. 23, No.5, p. 9,
5Op. cit., pp. 32-38.
6Op. cit., pp. 16-27.
8See Part III below.
Minister for Law in the
10Mr. Brohi later defended Sheikh Mujibur Rahman at his secret trial before a military tribunal after his arrest.
11Sobhan, R., op. cit., p. 323.
12The Crisis in
13Op. cit., pp. 47-59.
14Peter Hazelhurst The Times,
15Op. cit., pp. 25 and 26.
16The Awami League representatives assert that this was not suggested to them, even at this late stage. It now seems clear that the decision to break off the negotiations and to start the army 'crack-down' must have been taken at the latest on March 24. However, at a further meeting on the evening of that day, President Yahya Khan's advisers did not reject the proposals and agreed to telephone Dr. Kamal Hossein next morning with a view to arranging a further meeting on the next day to discuss its terms. This was the telephone call which never came.'
17See Part V below.
18Op. cit., p. 27. The alleged operational plan is set out on p. 40.
19Op. cit., Introduction.
(b) 25 March - 18 December, 1971
An American who was working in a rural area in the interior throughout the period from March to December, has written a powerful and passionate indictment of the Pakistan Army and auxiliary forces in these terms:
'For nine months
all human rights were completely suspended in
The military reign
of terror in
The first phase began in earnest on March 26th. The Army simply loosed a reign of terror against all Bengalis on the theory that if they were sufficiently savage and brutal, they would break the spirit of the Bengali people, and not only stop the rebellion but ensure that it would never happen again. In the beginning this reign of terror took place in and around the cities. Prime targets of the army were anyone who were or could be leaders; Awami League politicians, professors, students, businessmen. But any Bengali was fair game for any soldier. Although later on this general program of repression of everyone was toned down, it never completely ceased. And throughout the entire nine months in which at least a million died and millions more fled the country, the Army remained immune from censure or punishment. Rather they were highly praised by the President for their activities. Justice was completely dead throughout the country.
April the second phase, the concentrated persecution of the Hindus, began. By
the beginning of May it was obvious to observers that it was the Government's
avowed intention to kill or drive out of the country all of the eight to ten
million Hindus in
After the Army had clearly indicated that they were out to exterminate the Hindu population, the lower element among the Bengali Muslims began to take part in the terrorism. Their motive was both hatred for the Hindus, and greed. For the expulsion of the Hindus would enable them to take over their lands and possessions. To satisfy their greed they stooped to drive out their neighbors and let women and children suffer and starve and die. Local Muslim leaders and Union Board Chairmen ordered the Hindus in their area to get out within 24 hours, or they would call in the Army against them. Knowing that it was not an idle threat, the Hindus had no choice but to flee. In many areas, more harm was done to Bengali Hindus by Bengali Muslims than by the West Pakistan Army.
What was behind this persecution of the Hindus? After a month of repression it was evident that the military reign of terror was not succeeding as planned. The Muslim army resented the fact that they had to kill their Muslim brothers when so many Hindus were available. And there was a danger that the rebellion would succeed since the savagery of the repression had angered the entire nation. So the Army changed its tactics to make the Bengali revolt look like an Indian instigated rebellion. They attacked the Hindus as Indian agents and called on all Muslims to unite against the common enemy. They succeeded in getting many Muslims to collaborate with them out of greed, but the general run of Muslims were not fooled by the move. They knew well who the real enemy was.
The third phase of the Army program that of Collective Punitive Reprisals went into high gear when the freedom fighters began to return from training and started their work of sabotage and harassment of the military. This was the worst phase of all in its cruelty and injustice toward civilians. Whenever any act of sabotage occurred, the Army would immediately rush troops to the area. The freedom fighters would of course be long gone, so the Army would punish all the surrounding villages, burning and killing at will. No effort was made to look for the guilty. The Army pattern of slaughter in reprisal became so standardized that if a bridge or pylon was blown up during the night, the entire civilian population of the area would abandon their homes before daylight and flee into the interior. This prevented the Army from killing so many, but it did not stop them from looting and burning the homes. Day after day the sky was billowing with smoke as thousands of homes were put to the torch. ..
own personal experience underlines the complete indifference of the Army to the
question of innocence or guilt. When a train was blown up nearby, the local
doctor at first refused to go to the help of the victims because if the Army
should show up they would immediately kill everyone on the scene. I knew it was
dangerous and that his fear was reasonable, so I agreed to accompany him. When
we were still too far from the wreck to be identified the Army opened fire on
us. The fact that there was no evidence of guilt was of no consequence. We
saved our lives only by abandoning our boat and swimming to shore. In another
boat in the area a man was killed and his five year old son was fatally
wounded. The little fellow lingered for a month in our makeshift hospital, and
finally died in pain and in fear. During his long month of misery, every time
he heard a gunshot, he thought the Army was after him again and he would
whimper to his grieving mother, ' Mummy, will they shoot me again? Mummy,
please don't let them shoot me again '. These words from a five year old tell
more about the situation in
The final figures on all this horror, the full extent of the terrorism and of the denial of every human right will probably never be known. A million may have died, or two million or three. There may have been 10 million refugees or only five million. The exact number is really immaterial. It is definitely one of the most shameful episodes in the history of the human race; and it happened in the enlightened 20th Century. And it will happen somewhere again, if the Nations of the World take no steps to prevent it.'
The author writes: 'At least in the beginning I could be considered an unbiased observer of events. But after watching them bringing in wounded children, and after visiting a few of the pillaged villages, and after being shot at myself, I probably lost a bit of my objectivity.' His account does not, of course, give -the whole picture. It says nothing of the attacks made on non-Bengalis. It makes no allowance for the fact that the army was combating an insurgent force which included several thousand rebel Bengali soldiers fighting under civilian cover with the help of the civilian population. It accuses all Pakistanis equally, whereas evidence shows that there were occasions when the army acted with restraint, and where individual officers or soldiers could not bring themselves to carry out their sanguinary missions in full. There may even have been some occasions, as the Pakistani army claim, when excesses by soldiers led to courts martial, but if so they were rare.
We have quoted
extensively from this document as it gives a typical account of the way the
army's operations appeared to the civilian population and describes the pattern
of the massive violations of human rights committed over a period of nine
months against the population of
The principle features of this ruthless oppression were the indiscriminate killing of civilians, including women and children and the poorest and weakest members of the community; the attempt to exterminate or drive out of the country a large part of the Hindu population; the arrest, torture and killing of Awami League activists, students, professional and business men and other potential leaders among the Bengalis; the raping of women; the destruction of villages and towns; and the looting of property. All this was done on a scale which is difficult to comprehend.
Khan returned to
It is impossible to estimate accurately the numbers of civilian killed in these 48 hours. All that can be said is that they are to be numbered in thousands.
The operation was carefully planned. No shooting began for nearly two hours. The army concentrated on surrounding and occupying strategic points and taking up their positions. The firing began a little before midnight and lasted throughout the night till 6.00 or 7.00 a.m. It was resumed the next day and continued intermittently through the following night and day.
One of the first
targets was the
Warning of the impending attack was received during the evening. The students erected some rather amateurish road-blocks at the entrances to the University campus. These students were unarmed. The attack on the campus started at about one o'clock in the morning. The first attack was directed at Iqbal Hall, which was the centre of the student wing of the Awami League. The army's fire is described as having come from 'all types of arms, mortars, tanks, cannon, machine gun fire and tracer bullets'. The noise was deafening and continued through the night until 7.00 a.m.
After Iqbal Hall, the attack was directed against Salimullah Hall and later at Jagannath Hall, where students belonged to Hindu and other minorities. These Hans were invaded and those students who could not escape were ruthlessly killed. The Halls were set on fire together with a number of other University buildings.
The only place from which any resistance was offered was Iqbal Hall from which came some small arms fire, but this stopped after no more than 35 or 40 minutes. The light nature of the resistance is borne out by the fact that the control centre was heard by several witnesses to enquire over the army radio of the officer leading the attack how many guns had been found in Iqbal Hall. The officer replied 'Only 50 rifles'. He was then ordered to add the number of all rifles and small arms taken in house-to-house searches throughout the city as the recorded number of small arms found at Iqbal Hall.
In addition to
attacking the student halls, the army raided the blocks of flats where the
University teachers lived. Anthony Mascarenhas, the West Pakistan journalist
who was officially attached to the Pakistan Army 9th Division and who later
Those who were able to talk to their assailants in Urdu were often spared. The wife of one lecturer who spoke fluent Urdu was told by a soldier that their orders were to kill everybody, but they found it difficult to carry out the order. Some were spared by pathetic entreaties made by their families.
Altogether ten university teachers were killed, including a renowned Professor of Philosophy; Dr. G. C. Dev. Estimates of the number of students killed vary but seem to have totaled some hundreds. The number would have been higher but for the fact that the University had been closed since March 7 and many students had gone to their homes. A mass grave was dug on the open ground outside the Jagannath and Salimullah Halls. Bodies were collected in trucks from Iqbal Hall and elsewhere on the campus and were thrown into the grave and loosely covered with earth bulldozed into the grave. Some witnesses speak of the sight of arms and legs sticking up out of the grave.
The libraries of the University Halls were burnt out. The Library of the British Council building on the campus was attacked in the mistaken belief that it was the University Library. An eight man Bengali police guard at the British Council premises were shot to death in a small room where they were hiding. A group of about 30 civilians from a nearby slum quarter who had sought refuge on top of one of the blocks of university teachers' flats were similarly wiped out.
Fearful as was the
attack at the University, the greatest slaughter was aimed at the poorest
sections of the community living in old parts of the town and in compounds of
lightly built huts of bamboo and matting scattered about the city. The raid on
the old town began shortly after midnight. Anyone seen on the streets was
killed and the sound of firing continued through the night. Twenty taxi drivers
who had been sleeping in their taxis on a rank in
The areas destroyed in this way included the Hindu temple to Kali Bhari and the two villages where some 2,000 Hindus lived on the Dacca race course; the Hindu areas of Chakri Putti; large areas of 'bustee' houses along the rail track in the old town and near the University, and numerous shopping areas or' bazaars'. Among those specifically mentioned are Riya Bazaar, Shankari Bazaar, Sakhri Bazaar, tile old timber market, Luxmi Bazaar and Shantinagar Bazaar.
After the first onslaught, the burning and killing continued for some days, directed more specifically against the homes of active Awami League leaders and against Hindus.
Shankhari Patti, a street in the old town, where the conch-shell craftsmen lived, was closed at both ends. Everyone was ordered to leave the houses. Hindus were separated from Muslims, and the Muslims were ordered to return to their houses. The Hindus were then machine gunned to death.
asked why Hindus were being killed were repeatedly told by way of justification
'Hindus are enemies of the state'. Many witnesses testify that the army seemed
obsessed with the idea that the movement for autonomy in
targets of the army during the crack-down were the East Pakistan Rifles and the
The Biharis were
not slow to join in the attacks on Bengalis. In Mohammedpur, which was
predominantly a Bihari area, the houses of Bengalis were raided by armed
Biharis on 26 March and the Bengalis were driven out of the area. In the early
morning of 26 March a message was intercepted passing over the army radio from
the army headquarters to unit commanders throughout the city, congratulating
them on the night's work. The message ended, 'You have saved
On 26 March the
radio of the Bangladesh Liberation Army declared
Thus the scene was
set for a brutal civil war, in which each side was convinced that the cause
they were fighting for was right. The
Pakistanis thought that a short sharp lesson would suffice to subjugate the
Bengalis. They certainly succeeded in the beginning at
Another writer has
described how within three days, the city was quiet too quiet. The regime
claimed that everything was returning swiftly to normal, that the miscreants
and the criminal elements had been taken care of. But that normality was no
more than the absence of activity, it was the normality of the graveyard. Tens
of thousands had fled
The nucleus of the
armed resistance was drawn from the Bengalis in the army and police force who
had escaped the army's attacks. In a number of towns these forces succeeded in
At Jessore the contingent of the East Bengal Regiment were called together and told they were to take a holiday; they were to give up their arms and go home. This they did, but as they left they were fired upon and some fifty killed. The rest dispersed but gathered again in secret and that night raided the armory and re-armed them. They managed to contain the rest of the troops in the cantonment for four days until their ammunition ran out, when they disappeared either to their homes or to join the 'Mukti Bahini' liberation forces.
At Dinajpur there was a three-day running battle between the local contingent of the East Pakistan Rifles and soldiers of the Punjabi regiment. The Punjabi troops were forced to make a tactical withdrawal from the town to await reinforcement.
Attacks on Biharis
There can be no
doubt that in many of these towns where there was a substantial Bihari
population, the Bengalis turned against the Biharis during the short period
they were in control and some terrible massacres resulted. Among the places
where this happened were
Anthony Mascarenhas has described the attacks on the non-Bengalis in these terms:
'Thousands of families of
unfortunate Muslims, many of them refugees from Bihar who chose Pakistan at the
time of the partition riots in 1947, were mercilessly wiped out. Women were
raped, or had their breasts torn out with specially fashioned knives. Children
did not escape the horror: the lucky ones were killed with their parents; but
many thousands of others must go through what life remains for them with eyes
gouged out and limbs amputated. More than 20,000 bodies of non-Bengalis have been found in the main towns, such as
One may doubt these figures which, like all figures of victims of atrocities, tend to be greatly exaggerated.
A description of
the indiscriminate killing during this period has been given by an American
engineer who was working on a construction project at Kaptai, near
March 1, we received word from some British friends in
On the night of
March 9, my expatriate staff and I decided to depart Kaptai. As we passed
We returned to Kaptai on March 23. There was a small Army garrison stationed at Kaptai. They were a part of the East African Rifles which was a regiment of Bengalis with mostly Punjabi officers and N.C.O.'s. The garrison was quartered in an old school building about 400 yards from our residences.
On the morning of March 26 around 9 a.m. we heard shooting coming from the school. I went to investigate and found a large crowd gathered there. Some of the crowd was shooting toward one of the upstairs school rooms. I was told that the previous night all Punjabis in the Army garrison (about 26 or 27) had been arrested and locked in the school-room. Now someone in the crowd was claiming that shots had come from the room. After removing a sheet of roofing several men with guns gathered around the opening and began firing into the room. After a few minutes they came down and began dispersing the crowd. I later learned that the commanding officer, who was under house arrest within sight of the school, was slowly beaten and bayoneted to death as his staff was being shot. The officer's wife, in a state of terror, asked the mob to kill her too. She was beaten to death. Their small son was spared and taken in by a Bengali family.
I met immediately with the local Awami League leader and the Power Station Manager, a Bengali named Shamsuddin. The Awami League leader said the people had been told to remain peaceful and that he had peace patrols roaming the area, but that he could not control the large mobs. Shamsuddin told me that the mobs had killed many Biharis the night before and thrown their bodies over the spillway of the dam. He said he just managed to talk the mob out of taking his three West Pakistani engineers but felt they were still in great danger.
When the East
Pakistan Rifles and Bengali irregulars began retreating from the fighting
pressure from implied threats, Shamsuddin had finally banded his three West
Pakistani engineers over to a mob after he was told they would not be harmed,
only held in jail at Rangamati. Shamsuddin agreed to hand over the engineers
provided two Bengali members of his staff be allowed to accompany the engineers
on their trip to the jail. This was agreed and they were taken away. Everyone
felt certain these men would be killed but they were spared. When I last heard
of them they were safe with their families in
An Army unit arrived in Kaptai on the morning of April 14. Except for those in our area Kaptai and surroundings were completely deserted. The unit consisted of a tank, two jeeps, a half-track and about 250 infantry. As they approached the tank fired blanks from its cannon and the soldiers fired intermittent bursts from their weapons. The object seems to be to lower the inhabitants with the noise. The army immediately began burning the shanties ('bustees') in which most of the people had lived. The bazaar and a few permanent type dwellings were also burned.
While his troops were searching the area, the commanding officer and his staff took tea in our residence. They congratulated and warmly praised Shamsuddin and his staff for their attempts to maintain order and for keeping the generating units in operation. The C.O. said that the Army's objective was to restore normality as quickly as possible. One of the officers told of a terrible scene they had come upon in a town about 10 miles from Kaptai called Chandagborna. About 40 to 50 women and children -survivors of previously killed Biharis - had been taken into a loft building where they had been hacked, stabbed and beaten to death. He said this grizzly scene had driven the troops to an almost incontrollable rage and he said it was fortunate that Kaptai was deserted except for us.
[Mr. Shamsuddin was later taken from the house by two
officer-in-charge appeared and questioned the soldier who had done the killing.
We later found this man was a Major. After questioning by the O.I.C. the
Major's weapon was taken and the Major was ordered immediately to
The Army's Attacks
It is clear that when the army regained control of these centers, the vengeance wreaked by them and the Biharis upon the Bengali population was horrific.
The army shot, killed and destroyed at sight on the least suspicion, and burnt down village after village, especially those inhabited by Hindus.
The army commander in one town was reported as saying: 'When people start shooting you shoot back. We killed them all. You don't go around counting the bodies of your enemies, you throw them in the rivers and be done with it.'5
Hariharpara village near
Italian missionaries at Jessore have described the mass killings there beginning on April 4. One of them was told by Pakistani soldiers that they had received orders to kill everybody. ' And they did it', he commented, 'men, women, babies. ..I cannot describe it. It was too terrible. ..' An Italian priest was walking down a street. Soldiers shouted to him to come over with his hands up. He did so and as he approached they shot him dead. Another priest who witnessed this said, 'They often did it that way '.7
Most of the estimates made on both sides of
numbers killed are, we believe, much exaggerated and wholly unreliable. The
figure of 250,000 quoted above as a
Mascarenhas reported that he was repeatedly
told by senior military officers in Dacca and Comilla, ' We are determined to
cleanse East Pakistan once and for all of the threat of secession, even if it
means killing off two million people and ruling the province as a colony for 30
years.' His evidence is particular value, not only because he heard such
remarks made by
'You must be absolutely sure that we have not undertaken such a drastic and expensive operation - expensive both in men and money - for nothing. We have undertaken a job. We are going to finish it, not hand it over half done to the politicians so that they can mess it up again. The army can't keep coming back like this every three or four years. It has a more important task. I assure you that when we have got through with what we are doing there will never be need again for such an operation.' 8
Statements of this
kind make clear that the atrocities committed against the population of
'What struck me was
the impression I got, a very hard impression, that this was a regular pattern.
It wasn't somebody venting his spleen, but he had clear orders to clean up. It
was the pattern of the killing. You killed first Hindus, you killed everyone of
the East Pakistan Rifles, the police, or the East Bengal Regiment you found,
you killed the students, the male students, and if you got a woman student you
probably did something else, the teachers. ..The teachers are supposed to have
been corrupted by the Hindus. It is the pattern that is most frightening. I
have seen the partition riots in
By the middle of May, the army was in full
control of the towns of
The Report of a World Bank Mission on East Pakistan dated July 8, 1971, described Dacca and other towns in early June 1971 as follows:
'The first thing
that strikes one -whether in
This is the
impression one gains by day. After dark the situation is more unusual still.
Most areas have curfews. In Sylhet it is 7.30 p.m. to 5.00 a.m.; in
People fear to venture forth and, as a result, commerce has virtually ceased and economic activity generally is at a very low ebb. Clearly, despite improvements in some areas and taking the Province as a whole, widespread fear among the population has persisted beyond the initial phase of heavy fighting. It appears that this is not just a concomitant of the army extending its control into the countryside and the villages off the main highways, although at this stage the mere appearance of military units often suffices to engender fear. However, there is also no question that punitive measures by the military are continuing; even if directed at particular elements (such as known or suspected Awami Leaguers, students or Hindus), these have the effect of fostering fear among the population at large. At the same time, insurgent activity is continuing. This is not only disruptive in it, but also often leads to massive army retaliation. In short the general atmosphere remains very tense and incompatible with the resumption of normal activities in the Province as a whole.'
The Report went on to describe the army destructions 'with a trail of devastation running from Khulna to Jessore to Kushtia to Padna, Bogra, Rangpur and Dinajpur', and then stated 'however, one similarity for all districts is that all remained very far from normal up to the time of our departure from East Pakistan on June 11'.
On 28 June, 1971, President Yahya Khan once again addressed the nation and announced plans for framing a new constitution. He admitted that 'normalcy in its accepted meaning can never return to a country without full participation of the people in its administration ...and this can happen only when the representatives of the people assume responsibility for the administration of the country '.
He promised that he would be able to achieve
this goal in a matter of four months or so, but in the meantime the slaughter
and destruction by the army continued. On the day of his broadcast to the
nation, an Associated Press dispatch from
Mascarenhas has also told of Hindus hunted and killed, and truckloads of human beings disposed of with a flick of a pencil.
It was to escape this terrible slaughter that
the refugees fled in millions to the safety of the Indian border. It is
estimated that the population of
The evidence of the massive and
indiscriminate destruction of villages is overwhelming. To give some precise
examples: the Anglican Bishop of
Faced with the mounting flow of refugees, the
Pakistan Government declared variously that they were lured into
Dr. Homer Jack, Secretary of the World Conference for Religion and Peace, particularly investigated these claims and found them all to be without foundation. 'All (the refugees) left their homeland because of killings, of lootings. They did not leave because of Indian promises, they heard none.' He talked to an Indian district magistrate about the allegation that the refugees were prevented from returning. The magistrate told Dr. Jack 'that he would love to have some or all of the 600,000 refugees living in his small geographical area leave. He said that the sooner they go back, the better, but none of them are going back.' On the figures given by the Pakistan Government. Dr. Jack had the following to say
'I obviously was
not in a position to count the refugees personally. Perhaps the Indian figure
is inflated, but more probably
Relief workers from the refugee camps deny
categorically the suggestion that the' refugees' included homeless Hindus from
Another feature on which very many accounts
agree is the wholesale rape of women and young girls by
While the guerillas were stepping up their
In some areas the brutality of the West
Pakistan police and Razakars was such that the people said that they wished
The Mukti Bahini
Despite General Yahya Khan's claim at the end
of July that all was normal in
The terrain of the country, the nearby sanctuary across the Indian frontier, and the support of the civilian population all served to make the circumstances ideal for guerilla warfare. Communications were easily severed by blowing road and railway bridges, and the main export industries of tea and jute were largely brought to a halt. Two expatriate tea planters disappeared at the beginning of June and there is evidence to show that one was murdered in Sylhet on June 14 as part of a campaign to dissuade expatriates from collaborating with the Pakistan Government.
When the Mukti Bahini regained control of a rural area, it was their practice to mete out rough justice against Razakars and dacoity who had pillaged and terrorized the population.
At the end of August President Yahya Khan tried to obtain the cooperation of the population by more peaceful methods. General Tikka Khan was replaced by a civilian governor, Dr. A. M. Malik, with a civilian cabinet. On 5 September, the President declared a general amnesty and many suspects were released. The President said he hoped the amnesty would 'remove all manner of doubt, fear and anxiety from the minds of those who may have committed offences during the course of and due to the heat generated by political disturbances in East Pakistan and gone outside the country or underground'. He invited men to return to their homeland and rejoin their families and resume their normal vocations.
After all that the army had done, it is not
surprising that there was virtually no response to President Yahya Khan's
appeal. In September and October guerilla activities increased still further.
The disorganized and undisciplined groups of insurgents developed into a more
effective and reasonably well organized guerrilla force.
One of the most dramatic of the guerrilla
successes was the damaging and sinking of ships in
The result of the
increased guerilla activities was an increased stream of refugees into
On 25 October
1971, President Yahya Khan invited the Secretary General of the United Nations
The successes of
the Mukti Bahini in
The War between
Meanwhile, on the
Indian frontier, firing from both sides had been increasing for some time. On
21 November, the Indian Government admitted to making raids with tanks into
East Pakistan during which they captured and brought back to
On 23 November,
President Yahya Khan declared a state of emergency following an alleged
four-pronged attack by
between Indians and Pakistanis became more frequent and widespread. They
continued until 3 December when the
There have been
many speculations why
On 7 December,
President Yahya Khan announced he had formed a coalition government with an
elderly East Pakistani at its head. This was Nurul Amin, an independent, who
was one of the two non-Awami League members of the Assembly elected from
The war which Mr.
Bhutto had said could not last for ever in fact lasted for twelve days. On 12
December, Indian parachutists landed near
On 15 December,
President Yahya Khan authorized General A. A. K. Niazi to take the necessary
measures to stop the fighting. On the same day Mr. Bhutto dramatically walked
out of the Security Council in
The Final Killings
population were throwing flowers on Indian troops, some of the Bengali
guerrilla forces started killing 'collaborators' and West Pakistanis.
Lt-General Jagjit Singh Aurora, General Officer commanding the Indian and
The prime target
of the Bengali forces were the hated Razakars. One incident which gained immediate
world wide publicity as it occurred in front of the television cameras, was the
stabbing to death at the Sports Ground of four Razakars. This was carried out
by one of the irregular guerrilla units who were not under the control or
orders of the
It must be
remembered that these incidents occurred in the immediate aftermath of a most
brutal civil war, and took place at a time when no government had yet been
These reprisal actions became all the more understandable when it was learned how large numbers of intellectuals and leading Bengali figures had been rounded up and put to death within the last few days before the surrender of the Pakistan army.
It is impossible to assess the precise number of those killed in this way between II and 14 December. Some have suggested as many as 2,000, others indicate some hundreds. Lists have been published giving the names of some of the victims. Nine university teachers have been named as killed, and at least another 15 were searched for but managed to escape. Eight journalists have been named as being among the victims.
These murders were perpetrated by members of Al Badr, a Bengali organization which came into being after 25 March, 1971, and which is believed to have been the action section of Jamaat-e-Islam, the extremist Muslim Party. Their goal was to wipe out all Bengalis who advocated independence and the creation of a secular state. It has been alleged that the AI Badr raid, were directed by a group of Pakistani officers, who are said to have approved the list of those to be assassinated.
The AI Badr raids were carried out at night, the victims being led away blindfolded at gun point, never to return. Many were taken to the Dacca College of Physical Education building. A janitor, at the College stated 'They brought in hundred, of people, all nicely dressed and tied up. We could hear the screaming all the time from the rooms.'
The victims were later taken in trucks to a deserted brickyard near Mohammedpur. The only known survivor, who managed to loosen the rope with which he was tied and escaped, has described how these prisoners were tortured before being taken out to be shot. The victims included women, one of whom was an editor who was found with two bayonet wounds, one through the eye and one in the stomach, and two bullet wounds. It is alleged that a heart specialist, Dr. Fazle Rabbe, had been cut open and his heart ripped out.
are alleged to have been committed in other parts of
1Simon Dring, of Daily Telegraph (
4Anthony Mascarenhas, Sunday Times,
5Malcolm w. Browne, New York Times, May 9, 1971.
7U.P.I. report, 13 December, 1971.
10See Part IV below.
11Statement by Dr. Homer Jack to the Sub-Committee to Investigate Problems Connected with refugees and Escapees, of the Committee on the Judiciary United States Senate, Ninety-Second Congress, First Session, September 30, 1971, p. 295.
Legal Position under Pakistani Law
Before considering the legality of the action taken by Sheikh Mujibur Rahman and the Awami League in March, 1971, it may be useful to consider the legal basis of the military regime headed by President Yahya Khan, and of his Legal Framework Order.
Martial law was first
Only 10 days later, Ayub Khan deposed Mirza and assumed the powers of President of Pakistan. The revolutionary nature of this seizure of power was recognized at the time by the Chief Justice of Pakistan, Muhammed Munir:
'If the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judged not by reference to the old Constitution but by reference to its own success ... The essential condition to determine whether a constitution has been annulled is the efficacy of the change. If the territory and the people remain essentially the same. ..the revolutionary government and the new constitution are, according to international law, the legitimate government and the valid constitution of the State. Thus a victorious revolution or a successful coup d'etat is an internationally recognized legal method of changing a Constitution.'1
Ayub Khan's presidency derived further authority from the elections held in 1962, when the martial law administration was replaced by the new 1962 Constitution with a National Assembly. With the breakdown of his administration in March, 1969, Ayub Khan dissolved the Assembly and called on General Yahya Khan to take over the power and authority of the government. The 1962 Constitution, from which Ayub Khan then derived his authority, empowered him to appoint Yahya Khan as Chief Martial Law Administrator, but it did not authorize him to transfer to him the presidency. On his resignation the Speaker of the National Assembly should have become Acting President, but the Speaker was an East Pakistani.
On taking power, General Yahya Khan issued a Proclamation purporting to abrogate the 1962 Constitution and appointing himself President with absolute powers under martial law. A few days later he issued the Provisional Constitution Order, under which he purported to bring back the 1962 Constitution subject to his own overriding powers. Section 29 of the Constitution provides that:
'(1) If at a time when the National Assembly stands dissolved or is not in session, the President is satisfied that circumstances exist which render immediate legislation necessary, he may, subject to this Article, make and promulgate such ordinances as the circumstances appear to him to require, and such ordinance shall, subject to this Article, have the same force of law as an act of the Central Legislature.'
The Section stipulates that the National Assembly must approve the ordinance either within a period of 42 days after the first meeting of the National Assembly or within the period of 180 days of the promulgation of the ordinance. This provision was not followed, as Yahya Khan continued to legislate by order without submitting his ordinances to the Assembly in accordance with Section 29 of the Constitution. That he was aware of this deficiency appears from Section 2 of the Legal Framework Order, 1970, which says 'This Order shall have effect notwithstanding anything to the contrary in the Provisional Constitution Order, the Constitution of 1962 of the Islamic Republic of Pakistan or any other law for the time being in force.
It follows that if the Constitution of 1962 is to be regarded as still being in force, the Legal Framework Order, 1970, was invalid. If the Order is to be regarded as valid, it can only be on the basis that President Yahya Khan had assumed absolute legislative as well as executive powers. This again was an unconstitutional and illegal act, and has since, been declared to be such by the Supreme Court of Pakistan.2
As has been seen, Sheikh
Mujibur Rahman responded to President Yahya Khan's postponement on March 1,
1971, of the Constituent Assembly by calling a hartal (general strike)
Dosso, PLD SC (Pak) 533 ff. The Supreme Court of Pakistan overruled this
decision on April 20, 1972, in the case of Malik Ghulam Jilani and Altaf Gauhar
2'There can be no question that the military rule sought to be imposed upon the country by General Agha Muhammed Yahya Khan was entirely illegal', per Chief Justice Hamoodur Rahman, ibid.
Legal Position Under International Penal Law
this part of the study the events in
the point of view of the
atrocities which were committed, and be it said the atrocities committed on
both sides, involved the commission of many crimes under the domestic law of
The International Bill or Human Rights
The question of specific offences under international penal law should be considered against the background of those documents which are coming to be known as the International Bill of Human Rights, as well as of the International Convention on the Elimination of All Forms of Racial Discrimination. While not they giving rise to any procedures against individuals in international penal law, these documents enshrine important principles of international law which are relevant when considering the specific offences. The International Bill of Human Rights comprises the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights, the Covenant on Civil and Political Rights and the Optional Protocol.1 While not in the form of a convention, the Universal Declaration of Human Rights is now widely regarded as forming part of international customary law, and although the two Covenants and the Optional Protocol have not received sufficient ratifications to bring them into force, the unanimous enactment by the General Assembly in 1966 makes them powerfully persuasive documents for interpreting the principles of human rights provided for in the Charter and in the Universal Declaration. The Declaration itself was proclaimed by the General Assembly as 'a common standard of achievement for all peoples and all nations'.2
goes without saying that many of the provisions of the Universal Declaration of
Human Rights were violated in the situation of hatred, violence and destruction
which prevailed in
It is to be expected that in a civil war there will be some derogation from the rights contained in the Universal Declaration. The limits of such derogation are laid down in Article 4 of the International Covenant on Civil and Political Rights, which provides that:
'In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.'
It is specifically provided in this Article that no derogation may be made under this provision from (inter alia) Article 6 (' No-one shall be arbitrarily deprived of his life '), 7 (' No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment '), 16 (' Everyone shall have the right to recognition everywhere as a person before the law ') and 18 (' Everyone shall have the right to freedom of thought, conscience and religion').
Although the interpretation of the words 'the extent strictly required by the exigencies of the situation' will always be relatively subjective, the systematic destruction of life and property carried out by the Pakistan army and auxiliary-forces may fairly be said to have been out of all proportion to the professed aim of maintaining law and order and establishing the authority of the Pakistan Government. Moreover, the killing and arbitrary arrest, detention and torture of members of the Awami League, of students and of Hindus, for no other reason than that they belonged to these groups, were clear violations of these principles.
Convention on the Elimination of Racial Discrimination
relevant document is the International Convention on the Elimination of All
Forms of Racial Discrimination, which
'...any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.'
Each State Party undertakes under Article 2 'to engage in no act or practice of racial discrimination against persons, groups of persons or institutions' and to ensure that all public authorities act in accordance with this obligation. There is a procedure under Articles 11 and 14 of the Convention for the consideration by a Committee of complaints ('communications') from State Parties or from individuals or groups claiming to. be victims of a violation of the rights set forth in the Convention. But the enforcement of the Convention by penal and civil procedures is a duty imposed on the State Parties. Under Article 5, the State Parties undertake to prohibit and to eliminate racial discrimination in all its forms, 'notably in the enjoyment of ... he right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution'. Under Article 6, State Parties undertake to 'assure to everyone within their jurisdiction effective protection and remedies through the competent national tribunals. ... as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination'.
The words 'race' and 'racial' do not have a precise scientific signification. lndeed, a study made by UNESCO came to the conclusion that biologically there was no such thing as 'race'.3 By using the terms 'race, color, descent, national and ethnic origin,' it is clear that the Convention was intended to cover the whole spectrum of group discrimination based on motivations of a racial nature in the broadest sense in which the term is used. In this sense, discrimination against the Bengalis as a group, with their historical, linguistic, cultural, social and physical differences from the people of West Pakistan, would seem to fall within the term racial discrimination.4 The Urdu-speaking non-Bengalis also constituted a distinct group, and the very fact that were termed 'Biharis' indicates that they were regarded as being of a different national or ethnic origin. Discrimination against them as a group would, therefore, also fall within the term racial discrimination.
of the actions of the
The Geneva Conventions of 1949 proved a landmark in international law by formulating categories of offences which are prohibited in armed conflicts 'not of an international character '. The laws of war as formulated in the Hague Convention applied only to international wars.
Article 3, which is common to all the Geneva Conventions must be regarded as the basic text in this field. It has the advantage of being accepted unquestionably as representing the minimum of humanitarian law. It has been recognized almost universally, since virtually all countries are Parties to the Convention.
This Article provides:
'In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.'
During the drafting of this Article some states sought to restrict its application to cases where the insurgent forces had attained a certain level of stability and authority, such as having an organized military force and an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention. These amendments were not accepted and in our view the opinion expressed in the Commentary of the International Committee of the Red Cross that the scope of this article must be as wide as possible is to be preferred. The obligation is absolute for each of the parties and the reciprocity clause in the original draft was deliberately dropped.5
there was never any period when
There is hardly a phrase of this Article which does not appear to have been violated on a massive scale by the Pakistani army and auxiliary forces throughout the period from 25 March to the surrender of the Pakistani forces on 16 December. The evidence indicates that breaches of these provisions also occurred, though on a lesser scale, in the attacks made by some Bengali units against Biharis and other non-Bengali civilians.
The massacre of unarmed civilians, the destruction of villages and parts of towns, the rape of women, the torture and intimidation of prisoners, the taking and killing of hostages, the frequent executions without trial, the failure to tend the sick and wounded, all these, wherever they occurred, and whether as acts of repression and intimidation or as punitive measures or as reprisals were inexcusable crimes, and often aggravated by an 'adverse distinction' founded on race or religion.
One of the weaknesses of the Geneva Conventions is that they contain no provisions for sanctions in the case of breaches of Article 3. The articles of the Convention which impose a duty to search out and bring to justice persons who have committed' grave breaches' (e.g. Articles 146 and 147 of the Fourth Convention relative to the Protection of Civilian Persons in Time of War) applies only to offences against persons or property protected by the Conventions, and this does not include victims of offences under Article 3. Nevertheless, the duties imposed by Article 3 remain, and it is submitted that an international court set up to try offenders under international penal law would have jurisdiction to consider charges brought for breaches of the Article.
The provisions of the Conventions will also apply in respect of war crimes committed during the period of the international war, i.e. between 4 and 16 December.
Both sides have accused the other of the crime of 'genocide' and in view of the scale of the killings this is hardly surprising. Genocide has become a highly emotive term, often used by laymen to describe any large scale massacre of civilians. To lawyers, however, the term has a more precise connotation.
Article I and the relevant parts of Article II of the Genocide Convention, 1948, read as follows:
'Article I. The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.'
'Article II. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ...
Convention was ratified by
Article III of the Convention provides that 'the following acts shall be punishable:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide ;
(e) Complicity in genocide.'
Under Article IV
Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.'
Returning to the definition of genocide in Article II, it will be seen that the essence of the offence lies in a particular intent, namely the intent to destroy in whole or in part a national, ethnical, racial or religious group as such. It is not, for example, enough to show that a large number of persons belonging to a particular group were killed or intended to be killed. It must be shown that they were to be killed 'as such,' i.e. simply because they belonged to that group. Moreover, the group must be a 'national, ethnic, racial or religious group '. To kill members of a political group as such is not genocide.
Many people in Bangladesh no doubt feel that the whole of the military action and repressive measures taken by the Pakistan army and their auxiliary forces constituted genocide, aimed at destroying in whole or in part the Bengali nation or people as a national, ethnic or racial group. All that need be said is that there may be difficulties in establishing this proposition in a court of law. To prevent a nation from attaining political autonomy does not constitute genocide: the intention must be to destroy in whole or in part the people as such. The Bengali people number some 75 million. It can hardly be suggested that the intention was to destroy the Bengali people. As to the destruction of part of the Bengali people, there can be no doubt that very many Bengalis were killed. We find it quite impossible to assess the total numbers, and we cannot place great confidence in the various estimates which have been made from time to time. However, it appears to be indubitable that the killed are to be numbered in tens of thousands and probably in hundreds of thousands. But this in itself is not sufficient to establish that the intent was to kill them simply because they belonged to the Bengali people as such.
the initial holocaust of the army crack-down in
does not mean, of course, that particular acts may not have constituted
genocide against part of the Bengali people. In any case where large numbers
were massacred and it can be shown that on the particular occasion the intent
was to kill Bengalis indiscriminately as such, then a crime of genocide would
be established. There would seem to be a prima facie case to show that this was
the intention on some occasions, as for example during the indiscriminate
killing of civilians in the poorer quarters of
As far as the other three groups are concerned, namely members of the Awami League, students and Hindus, only Hindus would seem to fall within the definition of' a national, ethnical, racial or religious group'. There is overwhelming evidence that Hindus were slaughtered and their houses and villages destroyed simply because they were Hindus. The oft repeated phrase 'Hindus are enemies of the state' as a justification for the killing does not gainsay the intent to commit genocide; rather does it confirm the intention. The Nazis regarded the Jews as enemies of the state and killed them as such. In our view there is a strong prima facie case that the crime of genocide was committed against the group comprising the Hindu population of
It will be noted that under the provisions of Article IV, 'constitutionally responsible rulers, public officials or private individuals' are liable to be punished for acts of genocide. Act of State cannot provide a defense. What is less clear is whether and to what extent the defense of 'superior orders' is available to a person charged with genocide. An article in the original draft expressly excluded this defense, but this article was rejected when the Convention was finally approved. Many authorities consider, however, that principle IV of the Nuremberg Principles is of general application. This provides that 'the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him'.
The question of whether the killing of non-Bengalis by Bengalis involved crimes of genocide involves difficult questions of law and fact in determining whether the necessary intent existed. It is to be noted that if these killings did constitute genocide, then it would seem that all massacres pursuant to communal violence are to be regarded as genocide. For our part, we find it difficult to accept that spontaneous and frenzied mob violence against a particular section of the community from whom the mob senses danger and hostility is to be regarded as possessing the necessary element of conscious intent to constitute the crime of genocide. Of course, the matter would be different if it could be shown that particular defendants as leaders of the mob possessed that intent and worked up the frenzy of the mob in order to achieve their purpose.
Customary Law: Crimes Against Humanity
violations of human rights which occurred in
International Military Tribunal at
'The Charter is not an arbitrary exercise of power on the part of the victorious nations, but. .. it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.'8
The principle that a sovereign is bound to a minimum standard of humanity in his treatment of his citizens has its basis in customary international law. The Preamble of the Hague Convention stated that in cases not covered by the laws of war, the victims of war were nonetheless protected by the principles of the law of nations 'derived from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience'. The doctrine of humanitarian intervention allowed a state to intervene forcibly in certain circumstances to prevent another state from treating its own nationals in such a way as to 'shock the conscience of mankind'. The United Nations Charter explicitly recognizes what earlier writers on international law accepted, that all people are entitled to respect for certain fundamental human rights by all governments, including their own.9
Charter of London, as only a four-power treaty, might have difficulty in itself
in claiming to establish international law, but after its inception nineteen
other nations acceded to it, and it was incorporated into the peace treaties
signed with many of the axis powers, thus bringing to quite a substantial
number the nations which formally agreed to its formulations. In 1950, the
United Nations General Assembly accepted as part of international law the
Nuremberg Principles as formulated by the International Law Commission at their
request.10 Finally a number of international treaties such as the
International Covenants of Human Rights and the Genocide Convention, as well as
the Universal Declaration of Human Rights passed by the General Assembly in
1948, embody many of the principles of Nuremberg within their provisions. Thus
the principles of
The Nuremberg Principles, as formulated by the International Law Commission, define war crimes as:
'Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.'
Crimes against humanity are defined as:
'Murder, extermination, enslavement, deportation and other inhuman , acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.'
A crime against peace is defined as
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).'
The Nuremberg Principles were formulated in relation to an international war situation and there has been much discussion as to how far they are applicable under customary international law to an internal war situation, i.e. to 'an armed conflict not of an international character '.
As far as 'crimes against
peace' are concerned, it is plain that the definition relates only to the
outbreak of an international war, and at least up to December 3. 1971, no
question arises of a 'crime against peace' in
The application of war crimes is less simple. The definition is in very general terms and includes crimes committed against civilian populations and property. Some writers take the view that the definition in terms of violations of the laws of war or customs of war limits war crimes to offences committed in international wars. In our view this restrictive interpretation fails to recognize the very wide scope which the United Nations plainly wanted to give to these principles, and they should be considered equally applicable in an internal war situation. The adoption of Article 3 of the Geneva Conventions itself shows that the international laws of war extend to internal war situations and accordingly 'war crimes' should, at the least, include breaches of Article 3.
The notion of 'crimes against humanity' has undergone a similar evolution. This is particularly well set out in the report of the United Nations Working Group of Experts commissioned to study the question of apartheid from the point of view of international penal law.11 The report prepared by the Reporter, Professor Felix Ermacora, is an important document.
In the Nuremberg formulation, there is some overlapping between war crimes and crimes against humanity, but crimes against an enemy civilian population were in general intended to be covered by the term 'war crimes' and crimes against a belligerent's own population by the term 'crimes against humanity'. The Nuremberg Principles, as stated, relate crimes against humanity to crimes 'in execution of or in connection with any crime against peace or any war crime.' There seems to be no reason in principle why the concept of crimes against humanity in international law should be confined to an international war, or indeed to a war situation at all. This is certainly the view which has been taken in the United Nations.
Since the United Nations have been dealing with the policy of apartheid, various decisions have condemned the policy as being incompatible with the principle of the charter of the U.N. and constituting a crime against humanity'.12 During its 26th session the General Assembly adopted a number of resolutions which are relevant to this issue:
'(a) Resolution 2775 F (XXVI), entitled 'Establishment of
its resolutions 95 (I) of 11 December 1946, in which it affirmed the principles
of international law recognized by the Charter of the International Military
'Bearing in mind the obligations of all States under international law, the Charter of the United Nations, the human rights principles and the Geneva Conventions,
'Noting further that under the aforementioned resolution crimes against humanity are committed when enslavement, deportation and other inhuman acts are enforced against any civilian population on political, racial or religious grounds.'
(b) Resolution 2784 (XXVl), entitled 'Elimination of all forms of racial discrimination" adopted on 6 December 1971, in paragraph 1 of section II 'Reaffirms that apartheid is a crime against humanity'.
(c) Resolution 2786 (XXVI), entitled 'Draft convention on the suppression and punishment of the crime of apartheid,' adopted on 6 December 1971, contains the following preamble paragraph: 'Firmly convinced that apartheid constitutes a total negation of the purposes and principles of the Charter of the United Nations and is a crime against humanity'.'
Perhaps the most authoritative statement that' crimes against humanity' are not limited to international war situations is contained in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity which entered into force on 11 November 1970. Article I of the Convention provides:
'No statutory lirnitation shall apply to the following crimes, irrespective of the date of their commission:
'(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nuremberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the 'grave breaches' enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
'(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nuremberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.'
it be accepted that the concepts of war crimes and crimes against humanity were
applicable to the hostilities in
A more difficult question is whether the reprisal attacks made by Bengalis against non-Bengalis, in particular between 26 March and mid-April, 1971, are also to be regarded as war crimes and/or as crimes against humanity. The scale of the crimes was of a lesser magnitude, but nevertheless was probably sufficient to qualify for consideration as crimes against humanity. A crime against humanity requires a certain magnitude of violence before it becomes the concern of the international community in that it must surpass 'in magnitude or savagery any limits of what is tolerable by modern civilisations'.13
As in the case of genocide, we doubt whether atrocities committed by unorganized mobs in spontaneous outbursts should be considered as crimes under international penal law. However, any individuals who knowingly incited a mob to violence could be held guilty of a crime against humanity.14 So also where the attacks were made by organized forces.
The remaining questions to be considered are those of individual responsibility under international law for violations of human rights, and where such responsibility exists, what proceedings fall to be taken against those responsible and in what form.
We are not concerned with any political issues which may be involved in deciding whether particular individuals should be prosecuted in connection with the violations of human rights which have occurred. We are concerned only to examine what in international law is the liability of individuals to prosecution and what duty lies upon states who may decide to prosecute them.
The question whether and the extent to which individual persons are subject to international law is much disputed, but the one field in which it is now clearly established that individual persons are bound by international law is that of human rights. The Nuremberg Principles explicitly state that' any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment' (Principle I), that 'crimes against peace,' 'war crimes' and 'crimes against humanity' are 'punishable as crimes under international law' (Principle VI), and that complicity in the commission of these crimes is itself a crime under international law (Principle VII). Moreover, ' the fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law' (Principle Ill), and 'the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him' (Principle IV). Furthermore, ' the fact that internal law does not impose a penalty for an act which constitutes a crime under internal law does not relieve the person who committed the act from responsibility under international law' (Principle II).
In our view these principles are declaratory of principles of general application in international law, and apply in internal war situations as much as in international wars. The effect of these principles is that the individual officers and soldiers who carried out the 'kill and burn' missions and other crimes under international law are liable to be prosecuted and punished unless there was no moral choice open to them. Those who ordered the commission of the crimes are liable to prosecution. Equally, those who passed on the orders or who, knowing of these crimes or the orders for them, failed to prevent their being carried out when they had the opportunity to do so, are themselves guilty of 'complicity' in the commission of the crimes.
Form of Tribunal
What form of tribunals should be established for the trial of persons accused of these crimes? Clearly they may be tried under the domestic criminal law either before the normal criminal courts or before special tribunals established for the purpose. The persons charged have, of course, the right to a fair trial on the facts and law (Nuremberg Principles, Principle V). This should include the right to counsel of their choice, who may be an advocate from another country. The law under which they are to be tried must be law which was applicable at the time when and at the place where the offences were committed.
the Government of Bangladesh is entitled to hold any such trials under domestic
law before domestic tribunals, it is suggested that there are cogent reasons
why it would be preferable if those considered principally responsible for
these offences were tried under international law before an international
tribunal. If, as has been reported, senior Pakistani officers and officials are
to be tried, it would be easier to satisfy international opinion that they have
received a fair trial if the tribunal is international in character. In this
connection, it should be recalled that the International Military Tribunal at
that such a tribunal is established under
additional reason for preferring charges under international law arises in
relation to the crime of genocide. As we have seen above, it would not be
possible to charge persons with genocide under
1cf. Human Rights: A Compilation of International Instruments of the United Nations, A/CONF. 32/4 (1967), pp. 1-18.
2cf. Preamble to the Universal Declaration of Human Rights, G. A. Res 217A (III), 10 Dec. 1948.
3cf. Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination, 1970, pp. 41-42.
4cf. generally Coleman. Revue lIIternotionale des Droits de l' Homme, 1969, pp. 622-623.
5Commentary on the Fourth
Geneva Convention, I.C.R.C., 1958,
6cf. Oppenheim: International Law: A Treatise, 8th Ed., Vol. I, p. 750
782 U.N.T.S. 279.
8Judgment of the Nuremberg Tribunal, p. 216, quoted in Wright, The Law of the Nuremberg Trial in International Criminal Law, Mueller & Wise, eds. (1965).
9Wright, supra, p. 264-265.
11UN Document EICN. 411075, 15 February 1972.
12Ibid., p. 5.
13Opening speech of Justice Jackson, Chief U.S. prosecutor at Nuremberg, cited in Schwelb, Crimes against Humanity (1946), 23 B.Y.J.L. 178, 195.
14cf. the case of Julius Streicher, convicted at Nuremberg of crimes against humanity for inciting people through his newspaper, Der Sturmer, to murder and extermination of Jews; Woetzel, supra, p. 10.
15 See p. 55 above.
Right of Self-Determination in International Law
The principle of
the right of a people to self-determination seems self-evident, but there is no
more explosive issue in today's world. What constitutes a people? In what
circumstances can they claim the right? What is the extent of the right? Does
it include a right to secession? How is the right to be reconciled with the
principle of the territorial integrity of each
The problem was succinctly stated by U Thant in his 'Introduction to the Report of the Secretary-General' in 1971:
'I feel obliged to mention a problem which has been almost daily in my mind during my time as Secretary-General. I refer to the violation of human rights within the frontiers of a state. Theoretically, the United Nations has little standing in such situations - and they are all too common...
'A related problem which often confronts us and to which as yet no, acceptable answer has been found in the provisions of the Charter, is the conflict between the principles of integrity of sovereign States and the assertion of the right to self-determination, and even secession, by a large group within a sovereign State. Here again, as in the case of human rights, a dangerous deadlock can paralyze the ability of the U.N. to help those involved.'
The notion of the right of a people to self-determination amounts to a de jure recognition of a sociological phenomenon: the concept that certain human groups constitute' peoples' and that a people constitutes an entity having a legal personality or status analogous with that of a human person, and is accordingly entitled to certain rights and fundamental liberties which, like those of the individual, must be respected. In practice the sovereignty which, according to the principle of self-determination, should rest with peoples, is assumed by organs of the state, and in many if not most states of the world any attempt by a group within an existing state to assert the right of self-determination will be regarded as a form of treason. In consequence, the will to assert the right is often manifested by a violent challenge to an established power with a view to obtaining by force a change of status, the legitimacy of which will be sanctioned if and only if the use of force carries the day.
The concept of self-determination finds its origin in the modern concept of nationalism in which the sovereignty of the feudal Prince is replaced by the sovereignty of the people. This revolutionary and recent intervention arose from the evolution of ideas during the 17th and l8th centuries which were institutionalized in the French Revolution. The Declaration of the Rights of Man established the legal basis for these nationalist and revolutionary rights, the rights of peoples and of individuals. The socio-juridical transformation was radical. All the attributes formerly attaching to the person of the Prince were conferred on the 'sovereign people'. The new sovereign became a new socio-juridical entity, the Nation, in which was vested the sole authority to exercise the right of sovereignty.
If we consider the question in this original context, we are led to the conclusion that the right of a people to self-determination means, legally speaking, the right of people to constitute either alone or jointly with other peoples, a sovereign nation. This interpretation is confirmed by the Charter of the United Nations, whose Preamble opens with the words:
'We the Peoples of the United Nations. ..'. thus marking the difference between People and Nation. And by Article 1(2) of the Charter, one of the purposes of the United Nations is:
'To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ...'.
It is even more clearly stated in the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. Article I, which is common to both Covenants, reads:
'1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;
3. The States
Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and
The important principle is, therefore, established that the duty to 'promote the realization of the right of self -determination' is imposed upon all State Parties and not merely upon the colonial powers. This implies some limitation upon the absolute sovereignty of existing nation states.
Article 1 of the International Conventions on Human Rights follows the wording of Article 2 of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. Similar terms are to be found again in the important 'Declaration of Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations', which was approved by the General Assembly in 1970 by Resolution 2625 (XXV). This is the most authoritative statement of the principles of international law relevant to the questions of self-determination and territorial integrity. The conflicting principles are stated in the Preamble to the Declaration in these terms:
'The General Assembly,
Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security,
Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among states, based on respect for the principle of sovereign equality,
Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a state or country or at its political independence is incompatible with the purposes and principles of the Charter, ...'
The Declaration then proclaims 7 principles of international law relating to friendly relations and cooperation among states. One of these is 'The principle of equal rights and self-determination of peoples '.
Under this principle it is stated:
'By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with the provisions of the Charter.'
The form which self-determination may take is stated in these terms:
'The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.'
Finally, the duty of a state towards a people claiming the right to self-determination is stated as follows:
'Every state has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuance of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the charter.'
One cannot fail to be struck by the extremely wide scope of these provisions asserting the sovereign right of all peoples to self-determination. Moreover, it is the free determination by a people of the form of their political status, without external interference, which constitutes the exercise of their right to self-determination; a decision freely taken automatically leads to the acquisition of a status, and it becomes an infringement of international law for any state to attempt to deprive them of that status by forcible action, and if any state does so, other states should give support to the people asserting their right of self-determination.
Turning to the conflicting principle of territorial integrity we find it stated under 'The Principle of Sovereign Equality of States' that 'all states enjoy sovereign equality' and that sovereign equality includes as one of its elements:
'(d) The territorial integrity and political independence of the state are inviolable.'
This principle has to be given full weight when considering the extent of the right of self-determination of peoples. Not only does the general part of the resolution assert that 'each principle should be construed in the context of other principles', but under the principle of equal rights and self-determination of peoples it is expressly stated:
'Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.'
This courageous attempt to reconcile the two conflicting principles still leaves a number of difficulties. In the first part it says that the principle of territorial integrity is to prevail in the case of sovereign states conducting themselves 'in compliance with the principle of equal rights and self-determination of peoples'. This seems to recognize that a state may include more than one 'people' each of who is entitled to self-determination, but implies that self-determination is something which can be achieved within the framework of a larger state. Presumably what is contemplated is a reasonable measure of autonomy, perhaps within a federal state. If so, the term 'self-determination' in this passage has a different meaning from the passages quoted earlier which equate self-determination with freedom and independence. The final phrase makes clear that if a state is conducted in compliance with the principles of equal rights and self-determination of peoples, it must have a government representing 'the whole people belonging to the territory without distinction as to race, creed or color '.
This passage must also be considered in the
light of another principle not referred to in the Declaration of Principles. It
is a widely held view among international lawyers that the right of
self-determination is a right which can be exercised once only. According to
this view, if a people or their representatives have once chosen to join with
others within either a unitary or a federal state, that choice is a final
exercise of their right to self-determination; they cannot afterwards claim the
right to secede under the principle of the right to self-determination. It was
on this principle that the claim to independence of the southern states in the
American Civil War and of
Against the background of these legal principles, we propose to consider:
(I) whether the population of East Pakistan constituted a 'people' in the sense in which the term is used in the U .N .Charter and other relevant instruments of international law;
(2) if the answer is 'yes' whether the people
In considering these questions, we shall base our judgments on the texts already referred to, incorporating the general consensus of opinion of the Nations of the world on this subject, and we shall strive to interpret them in a restrictive sense, in view of the obvious dangers involved in adopting an excessively wide interpretation.
(1) Did the Population of
First, we must seek to establish, as best we can, what constitutes 'a people' having the right to self-determination. As we have seen, the Declaration of Principles of International Law is silent on this question, and equally, no guidance is to be obtained from the Charter of the United Nations or the two International Covenants on Human Rights.
It may be helpful to begin by examining what groups do not, or not necessarily, constitute a people. Clearly there can be many minorities, linguistic, racial or religious, which have legitimate rights as such, but which are not entitled to claim the right to self-determination. Regional groupings and regional loyalties may be very real and of great importance, without their populations constituting peoples
within the meaning of this doctrine. Again, a tribe is not to be regarded as such as a people, but rather as a group of clans. Successful nations achieve a real unity in diversity of many different elements. The right of self-determination is not intended to encourage separatism for every grouping which goes to make up the complex pattern of a historical nation.
The difficulties of the problem perhaps become clearer if one tries to establish a list of the characteristics possessed by a people, to establish as it were a composite picture permitting its identification.
If we look at the human communities recognized as peoples, we find that their members usually have certain characteristics in common, which act as a bond between them. The nature of the more important of these common features may be:
-racial or ethnic,
-cultural or linguistic,
-religious or ideological,
-geographical or territorial,
This list, which is far from exhaustive, suggests that none of the elements concerned is, by itself, either essential or sufficiently conclusive to prove that a particular group constitutes a people. Indeed, all the elements combined do not necessarily constitute proof: large numbers of persons may live together within the same territory, have the same economic interests, the same language, the same religion, belong to the same ethnic group, without necessarily constituting a people. On the other hand, a more heterogeneous group of persons, having less in common, may nevertheless constitute a people.
To explain this apparent contradiction, we have to realize that our composite portrait lacks one essential and indeed indispensable characteristic - a characteristic which is not physical but rather ideological and historical: a people begin to exist only when it becomes conscious of its own identity and asserts its will to exist. A modern example is the ancient Jewish people who have exerted their will to exist as a separate Israeli nation only during the present century. This leads us to suggest that the fact of constituting a people is a political phenomenon, that the right of self-determination is founded on political considerations and that the exercise of that right is a political act.
What is plain is that there is no single,
authentic answer to the question 'what is a people' ? All the official texts
ignore it, presumably owing to the difficulty of definition. In a matter where
passions are so easily aroused, this ambiguity is dangerous and can lead to
extremely grave consequences. We do not propose ourselves to attempt to
formulate any comprehensive definition. Rather, in the absence of any accepted
objective criteria, we propose to consider the question whether
Historically, the links between East and
Together these various factors constitute a strong body of presumptive evidence in support of the contention that there existed a distinct Bengali people. The only real common bond was the Moslem religion. It is important to remember, however, the profound hold which this religion has upon its adherents, the concept of an Islamic state being one in which the whole culture and civilization is permeated by Moslem ideology.
Turning to the last of the suggested
criteria, the conscious identity of themselves as a people and with the
political will to self-government, it was only in the later political evolution
of the state of Pakistan that one finds significant evidence that the people of
East Pakistan thought of themselves as a separate people. Long before the
The first landmark in the move towards
greater autonomy of East Pakistan was the 1954 elections, when the United Front
in East Pakistan won 97% of the seats, and routed the Moslem League which had
constituted the foundation of the unitary
In the 1970 elections the population had a further opportunity to express their views. The results of these elections, by their near unanimity, take on the force of a referendum. There can be no doubt that the principle which won that consensus of opinion was the single basic notion of autonomy, the religious question having played little or no part in the voting. As regards the juridical framework within which that autonomy might be realized, while there were some who believed that autonomy could never be achieved without secession, the great majority of voters were content to accept the Awami League proposals for autonomy within a federal constitution. What is of significance for our present purpose is that the electorate of East Pakistan showed that what they really hoped for was to be able at last to manage their own affairs as they wished, without having to receive orders from or render account to people whom they tended to see as a domineering and alien power whose attitudes and behavior had provoked resentment.
It seems impossible to deny that the result
of the 1970 election established that the population of East Pakistan now
considered themselves a people with a natural consciousness of their own and
were claiming a high degree of autonomy within the federal state of
(2) Were the People of East Pakistan
Entitled in International Law to Assert a Right of
The starting point on this issue was the
decision by the elected representatives of what became East Pakistan to opt for
union with West Pakistan rather than for union with West Bengal within the
A strong case can be made out for saying that
the people of East Pakistan would have been entitled to claim independence
before the 1970 election on the grounds that the denial of 'equal rights' which
they had suffered since the institution of the state of Pakistan brought into
force their right of self-determination. Until the 1970 election, they had
never been allowed equal representation, the doctrine of 'parity' between the
two wings being itself a denial of equality. Bengalis were heavily
under-represented at all levels of the civil service and military forces. The
economic and social disparities were even more striking.
After the 1970 election the case for saying
The reason why President Yahya Khan would not
allow a constitution to be drawn up in accordance with the Six Points is clear.
He considered that in any constitution which would have resulted, the powers of
the central government of
We have already considered in Part III the
legality of the martial law regime under
It must also be remembered that the Awami
League had no mandate for independence, not did they claim to have one. They
had fought the election on the Six Points program of autonomy within a federal
constitution. It was only when the army made it clear by their crack-down that
they were not prepared to entertain a constitution on this basis that the Awami
League leaders proclaimed the independence of
Therefore, if the Declaration of Principles of International Law is accepted as laying down the proper criteria, it is difficult to see how it can be contended that in March 1971 the people of East Pakistan, or the leaders of the Awami League on their behalf, were entitled in international law to proclaim the independence of Bangladesh under the principle of self-determination of people.
It does not follow from this, of course, that
the action of the Awami League leaders in calling for armed resistance to the
army cannot be justified under the domestic law. As we have seen, the martial
law regime was illegal and the old constitution had broken down and was
completely discredited. It was necessary to draw up a new constitution for the
In our view it was not in accordance with the principles of the Charter of the United Nations for a self-appointed and illegal military regime to arrogate to itself the right to impose a different form of constitution upon the country, which was contrary to the expressed will of the majority. As the army had resorted to force to impose their will, the leaders of the majority party were entitled to call for armed resistance to defeat this action by an illegal regime.
1See Part III above.
The Role of the United Nations
The inaction of the United Nations Organization in
face of the
The events in
Violations of Human Rights
The earlier parts of this Study have shown that the
What authority does the United Nations have to deal
with gross violations of human rights? What procedures and organs could have
been utilized to deal with the human rights violations in
The United Nations Charter establishes as one of the Organization’s basic purposes 'promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion' (Article I (3�. In Article 56 'All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement' of these purposes.
On the other hand, Article 2 (7) states that except for enforcement measures by the Security Council' Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter. ..'. As a consequence of Article 2 (7), the United Nations for many years has avoided dealing with violations of human rights in specific states.
The General Assembly, however, in Resolution 2144 (XXI) of October 26, 1966, called upon the Economic-and Social Council and the Commission on Human Rights 'to give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to violations of human rights wherever they may occur'. The Commission on Human Rights in Resolution 8 (XXIII) of March 16, 1967, invited the Sub-Commission on Prevention of Discrimination and Protection of Minorities 'to bring to the attention of the Commission any situation which it has reasonable cause to believe reveals a consistent pattern of violations of human rights and fundamental freedoms, in any country, including policies of racial discrimination, segregation and apartheid, with particular reference to colonial and other dependent territories'. The Commission also authorized the Sub-Commission in making such a recommendation to prepare a report 'containing information on violations of human rights and fundamental freedoms from all available sources'. The Economic and Social Council approved these decisions by the Commission in Resolution 1235 (XLII) of June 6, 1967.
In addition, the Economic and Social Council in Resolution 1503 (XLVIII) of May 27, 1970, established procedures for the review of communications sent by individuals and groups alleging the violation of human rights. The Sub-Commission, which will make the initial review of the communications, in Resolution 1 (XXIV) of August 13, 1971, established the rules of admissibility of communications. These special procedures respecting the review of communications do not derogate from the general authority of the Economic and Social Council, the Commission and the Sub-Commission to study independently of these procedures situations which reveal a consistent pattern of violations of human rights on the basis of all available information.
The United Nations has decided, by virtue of these
resolutions, that gross--violations of human rights are not exclusively within
the domestic jurisdiction of states and, therefore, Article 2 (7) does not
apply. Any of the organs responsible for promoting human rights - the General
Assembly, ECOSOC, the Commission on Human Rights, and the Sub-Commission on the
Prevention of Discrimination and Protection of Minorities - had the authority
and the duty to consider the reports of human rights violations in
Threat to International Peace
In addition to the general exception to Article 2 (7), in cases revealing a consistent pattern of violations of human rights there is a specific exception in the closing words of Article 2 (7) : ' ...but this principle shall not prejudice the application of enforcement measures under Chapter VII. ' Chapter VII is entitled' Action with Respect to Threats to the peace, Breaches of the Peace and Acts of Aggression' and comprises Articles 39-51. Any action to be taken under Chapter VII must be taken by or under the authority of the Security Council.
Possible Action by the Security Council
Pursuant to its primary responsibility under Article 24 for maintaining international peace and security, the Security Council could have investigated the crisis under Article 34 as 'a situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuation of the. .. situation is likely to endanger the maintenance of international peace and security '.
Equally, any member of the United Nations could have brought the 'situation' to the attention of the Security Council under Article 35, or the Secretary-General could have done so under Article 99. If the Security Council had met to consider the situation, its first duty under Article 39 would have been to determine whether there existed 'any threat to the peace, breach of the peace or act of aggression' and is so, determine what recommendations to make or what measures to take to maintain or restore international peace or security.
The Security Council did not, in fact, meet until after international hostilities had broken out in December. Hindsight now establishes that there was a threat to peace, but no great foresight was required in order to recognize this threat at the time. Particularly was this so after the Secretary-General's Note to the Security Council of July 20, 1971, in which he drew attention to three features of the situation which previous experience had shown to present grave dangers to peace, namely:
(1) the violent emotions aroused by the persecution of religious or linguistic groups;
(2) the conflict between the principle of territorial integrity and self-determination of peoples; and
(3) the long-standing tension between
In his memorandum, the Secretary-General indicated the futility of treating the relief aspects of the situation alone and implied that the Security Council should undertake measures to prevent the outbreak of armed conflict:
'In the light of the information available to me, I have reluctantly come to the conclusion that the time is past when the international community can continue to stand by, watching the situation deteriorate and hoping that relief programs, humanitarian efforts and good intentions will be enough to turn the tide of human misery and potential disaster. I am deeply concerned about the possible consequences of the present situation, not on/y in the humanitarian sense, but a/so as a potential threat to peace and security and for its bearing on the future of the United Nations as an effective instrument for international co-operation and action. It seems to me that the present tragic situation, in which humanitarian, economic and political problems are mixed in such a way as almost to defy any distinction between them, presents a challenge to the United Nations as a whole which must be met. Other situations of this kind may well occur in the future. If the Organization faces up to such a situation now, it may be able to develop the new skill and the new strength required to face future situations of this kind. ...The United Nations, with its long experience in peace keeping and with its varied resources for conciliation and persuasion, must, and should, now play a more forthright role in attempting both to mitigate the human tragedy which has a/ready taken place and to avert the further deterioration of the situation.'1
It is difficult to resist the conclusion that if the
Security Council had met before December 1971 to consider the situation they
would have determined that it constituted a threat to the peace. (As no
international violence had occurred, it could hardly have determined that there
was a 'breach of the peace' or an' act of aggression' pace
If the Security Council had so determined it could, notwithstanding the domestic nature of the dispute, have taken under Chapter VII either non-military measures under Article 41 (including, severance of economic relations, of communications, and of diplomatic relations) or 'such action by air, sea, or land forces as may be 'necessary to maintain or restore international peace and security'.
Any such decision would, however, have required under Article 27 (3) an affirmative vote of seven members including the concurring vote of the permanent members. It was, of course, the impossibility of reaching agreement among the permanent members which was responsible for the inaction of the Security Council.
Even if agreement had been possible, it must be recognized that measures of the kind envisaged under Articles 41 and 42 are not necessarily best suited to achieving the objects which the situation called for, namely the protection of the different sections of the population of East Pakistan against gross violations of human rights, and the prevention of outside interference in the internal dispute, without supporting or favoring one side or the other to that dispute.
Before taking any action under Articles 41 and 42, the Security Council may also under Article 40 'call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable '. These could include such measures as sending a fact-finding committee, or observer groups, or a peace-keeping force. As this Article is in Chapter VII, such provisional measures could have been taken without the consent of the Pakistan Government, but in practice it is unlikely that any such force would be sent without the consent of the government of the country concerned and, in a case of this kind, of the leaders of the insurgent forces or liberation army.
The Security Council could also, under Article 36, have recommended 'appropriate procedures and methods of adjustment' with a view to the pacific settlement of the dispute or situation. The procedures and methods which the Security Council could have recommended under this Article would include procedures for negotiation or mediation as well as the measures open to it under Article 40.
Possible Measures by the General Assembly
The General Assembly has a general power under Article 10 to discuss any matters within the scope of the Charter and, subject to Article 12, to make recommendations to member states, to the Security Councilor both. (Article 12 bars the General Assembly from making any recommendation while the Security Council is exercising its functions in respect of the dispute or the situation; as we have seen, that limitation did not apply.)
There is also a similar power in respect of matters relating to international peace and security under Article II (2).
Under Article 14 'the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations '.
These purposes and principles include (Article I (3)), 'to achieve international cooperation. .. in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion'.
It may be noted in passing that the fact that Article 14 authorizes the General Assembly to act in this way indicates that a situation involving a gross violation of human rights within a state should not be considered one which is 'essentially' within the jurisdiction of the state concerned, if it impairs the general welfare or friendly relations among nations.
The General Assembly could, therefore, have made recommendations either:
(1) generally, under Article 10; or
(2) if they had determined that there was a threat to international peace or security, under Article II; or
(3) if they had determined that the violations of
human rights occurring in
The actions which they could have recommended under these Articles would include those open to the Security Council, such as a fact-finding committee or observer groups or a peace-keeping force.
It may be that the General Assembly could also have acted under Article 55, which provides that:
'With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
...(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.'
Under Article 56, 'all Members pledge themselves to
take joint and separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55 '.
Committee on the Elimination or Racial Discrimination
As was seen in Part IV of this Study, many of the violations of human rights committed both against Bengalis and Biharis appear to have fallen within the terms of the International Convention on the Elimination of All Forms of Racial Discrimination. A procedure is available for the consideration of' communications' from individuals or groups claiming to be victims of violations or from State Parties.
The Convention provides for a Committee on the Elimination of Racial Discrimination which consists of eighteen experts who serve in their personal capacity. The Committee reviews reports submitted every two years by the states parties to the Convention and may request additional information from the states parties. Furthermore, the Convention provides that 'if a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee'. If the dispute between the two states parties is not resolved, an ad hoc Conciliation Commission may be established which will investigate the situation and make 'such recommendations as it may think proper for the amicable solution of the dispute'.
No complaint was submitted to the Committee concerning
the events in
Opportunities for Discussion of the Situation in the United Nations
Apart from the power of any Member under Article 35 to bring the situation to the attention of the Security Councilor the General Assembly or the Committee on the Elimination of Racial Discrimination, ample opportunities in fact arose for discussing it.
The situation was first raised in the Social Committee of ECOSOC in July, and at the 51st Plenary Session of ECOSOC the United Nations High Commissioner for Refugees (UNHCR) reported on the refugee problem. The Council decided to refer the report to the General Assembly without debate.
On August 16, 1971, a representative of the International Commission of Jurists, speaking on their behalf and on behalf of 21 other non-governmental organizations, requested the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities to examine the situation in East Pakistan and to make recommendations to the Commission on Human Rights on measures to be taken to protect human rights and fundamental freedoms in East Pakistan. After a short debate the matter was closed without any conclusion being reached.
The matter was also raised by
In the Introduction to his report to the General
Assembly, the Secretary-General stated his belief that the United Nations had
to take some action with regard to the situation in
The Third Committee of the General Assembly, which
handles the social, cultural and human rights items, decided to consider the
humanitarian aspects of the
The representative of
'At the heart of the problem
was the desire of the people of East Pakistan for greater control of their own
affairs -a problem that could only be solved by negotiations between the Government
of Pakistan and those who had been freely elected by the people of
The resolution finally adopted by the General Assembly
(Resolution 2790 (XXVI), December 6, 1971) 'Urges all Member States in
accordance with the purposes and principles of the Charter of the United
Nations to intensify their efforts to bring about conditions necessary for the
speedy and voluntary repatriation of the refugees to their homes' and notes
that the return of the refugees 'requires a favorable climate which all persons
of goodwill should work to bring about in a spirit of respect for the
principles of the Charter of the United Nations'. The wording of this
Resolution illustrates the cautious and unrealistic attitude in which most
member states viewed the situation in
Security Council and General Assembly Attempt to Stop the lndia-Pakistan War
The Security Council finally became seized of the
situation in the Indian subcontinent on December 4, when nine members called
for a meeting on 'the deteriorating situation which has led to armed clashes
'It is entirely clear that if the military administration of Pakistan had not interrupted the talks with the lawful representatives of the Pakistani people and had not carried out its mass repressions, the Security Council and the world community would not have to be dealing with consideration of the question of the domestic crisis in East Pakistan and its international consequences.' 5He asserted that: 'Under the Charter the Security Council unquestionably has the right to examine the causes of the emergence of dangerous situations that, threaten international peace and security. The Security Council likewise has the right to call upon a State or States to take steps to eliminate the causes involved and to adopt measures to prevent such cases from aggravating the international situation and resulting in the threat of direct military conflict.' 6After the Soviet vetoes, the Council referred the matter to the General Assembly under the 'Uniting for Peace' resolution.
On December 7, the General Assembly promptly adopted
by a vote of 104 in favor, 11 against, with 10 abstentions, a resolution
calling for an immediate cease-fire and withdrawal of troops. The overwhelming
vote reflected the disapproving attitude by most states to the secession of
'From the very start, as jar back as April of this year, there was an imminent threat to international peace and security, justifying prompt action by the Security Council. There could have been recourse to the various alternative means contemplated in and provided for by Article 33 of the Charter. Why, then, did the Security Council adopt the Nelson touch, and avert its gaze from the clouds that were gathering over the eastern portion of the subcontinent? It will be the historian's task to seek the answer to that question, in order to save this Organization from a similar dereliction of duty in the future.' 7
' ...all of us together, as Member States of the United Nations, also bear our share of responsibility for insufficient engagement and commitment in defining and ascertaining the real causes of the crisis, and for failing to take effective measures to overcome them in time. Here I have especially in mind the passive attitude and immobilize of the Security Council when it received the memorandum of the Secretary-General of 20 July, in which the Secretary-General pointed out that the developments in the Indian subcontinent constituted a danger for peace in that area.' 8
The Lessons of
The inability of the United Nations to have any
significant impact on the events in
1Italics added. UN document S/10410, pp. 2, 3-4.
2A/C.3/SR.1877, November 19, 1971, pp. 13-14.
3A/C.3/L.1885, November 18, 1971, paras. 3 and 4.
4A/C.3/SR.1879, November 22, 1971, p. 3.
5S/PV.1606, December 4,1971, p. 133-135.
6lbid., pp. 127 and 128-130.
added. Ambassador H. S. Amerasinghe (
L. Mojsov (
9S/PV. 1611, December 12, 1971, p. 11.
10General Assembly Resolution 2734 (XXV), Declaration on the Strengthening of International Security, December 16, 1970, para. 22.
The Role of
The Rules of Good Neighborliness
As the violence spread in East Pakistan the flood of
refugees fleeing from that violence took on such vast proportions that it
created a formidable problem for
It should be borne in mind that according to the terms
of Article 2 of the Charter India, like Pakistan and all other Member States of
the United Nations, was bound to settle its international disputes by peaceful
means and to' refrain in its international relations from the threat or use of
force against the territorial integrity or political independence-of ally
State'. Moreover, in accordance with international customary law
We will consider first the legality of the assistance
Assistance to Insurgents
If India's actions had been limited to receiving and
offering shelter to the Bangladesh leaders claiming to constitute a 'government
in exile' granting them certain practical facilities such as the use of its
radio services for broadcasts intended for Bangladesh, and even building up
troop concentrations along its frontiers with Pakistan, they would not have offered
very serious cause for protest on the part of Pakistan. The right of sanctuary
for belligerents is recognized in customary law, and as to the radio
broadcasts, the mass media of a neutral nation may be permitted to take
whichever side in the controversy they may select. It may be that the radio
More serious, however, from the point of view of
international law, is the military assistance given by
If the people of East Pakistan had been justified in
international law in asserting their independence under the principle of
self-determination, then by virtue of Article 2 of the United Nations Charter
they would have been entitled to seek and to receive support in accordance with
the aims and principles of the Charter, and India, like all other states, would
have had a duty to 'promote the realization of the right of self-determination'
(U.N. Resolution 2625). We have already expressed the view, however, that it
cannot be established that the principle of self-determination of peoples
applied to this situation, and
In any event, any such assistance in promoting a right of self-determination must be 'in accordance with the provisions of the Charter'. The Declaration on Principles of International Law approved in Resolution 2625 states (in the section dealing with the principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations) that
'Every state has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another state.'
'Every state has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.' (our italics)
On the face of it, certain of
In these circumstances, what was the justification for
the preventive attack, or 'pre-emptive strike' by the
We find it difficult to see how the military action
While it is difficult to establish accurately the
exact moment at which the Indian troops came into action, it seems that there
was an interval of about two days between the Pakistani preventive attack and
the Indian retaliation. A surprise attack of this type certainly offers
sufficient justification for retaliation, and probably is sufficiently grave to
constitute a casus belli. Various writers have speculated upon the motives
It would be unwise to embark on a judgment of either
party based on their supposed intentions. We restrict ourselves to the facts.
In our view the circumstances, technically, justified a declaration of war and
This is a dangerous doctrine, and would set at naught
all the principles of international law enjoining neutrality on third-parties
in a civil war situation. All that a neighboring country would need to do would
be to grant recognition to the rebel forces in order to justify her
intervention in their support. It becomes necessary, therefore, to look further
into the circumstances in order to determine what justification, if any, there
In the Name of Humanity
Neither the military operations, nor the political
developments which followed, offer support for the allegation that
We have already rejected the proposition that
We may also recall the 1950 treaty between India and
Pakistan, by which the two contracting parties solemnly guaranteed for all
citizens within their respective territories absolute equality regardless of
religious distinctions, and security in respect of their lives, culture,
property and personal dignity.2 This treaty is important because it
gives India a direct interest in the way in which Pakistan treats its Hindu
minority, and it means that Pakistan cannot claim that this is a question
falling solely within its domestic jurisdiction. The treaty officially recognized
the real character of the problem as an international, and not merely an
internal, affair. There can hardly be any doubt that the large-scale and
systematic discrimination and persecution of which the Hindus were victims from
March to December 1971 constituted a violation by
Closely linked with the preceding problem is that of
the refugees, which again has both national and international aspects. No exact
figures are known.
One can get some impression of the scale of this migration, or 'civil invasion' as Mrs. Indira Gandhi fairly called it, by comparing it with the total estimated number of refugees in the world. These were estimated in 1959 at about 15 million and in 1979 about 17.6 million, which would give an average annual increase of something less than 200,000.3 When one realizes that the 'tidal wave' of refugees into India probably raised the world figure, in a little over six months, from 17.6 million to about 27.6 million and that only a single country was affected, one begins to understand what the impact on that country must have been. Quite apart from the social and political repercussions provoked by this flood of destitute humanity pouring into an area already over-populated, with large numbers living in great poverty, the sheer cost of harboring the refugees until the end of December 1971 has been estimated at over 500 million dollars. About half of this was provided by international assistance, but there was no assurance that this level of international aid would continue, still less that it would increase.
It is probable that the effect on the Indian economy
was such as to disrupt, possibly even to halt for several years, the normal
economic development of the whole country. The World Bank estimated that if the
refugees had remained on Indian soil for a further three months, the cost of
that further period might have amounted to 700 million dollars. We find neither
historical precedent nor juridical definition applicable to this situation.
It was not an 'armed attack' in the sense of the Charter, nor even a
provocation on the part of
This problem of the refugees
involved a further and far from negligible problem of a humanitarian nature.
Indeed, it is in this realm of humanitarian law, in the widest sense of the
This brings us to the traditional doctrine of humanitarian intervention which Sir Hersh Lauterpacht, in the last edition of Oppenheim's International Law4 defines as follows:
'... when a State renders itself guilty of cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible.'
And Professor Borchard5 defines more clearly the form that such intervention may take:
'When these human rights are habitually violated, one or more states may intervene in the name of the society of Nations and may take such measures as to substitute at least temporarily, if not permanently, its own sovereignty for that of the state thus controlled. Whatever the origin, therefore, of the rights of the individual, it seems assured that these essential rights rest upon the ultimate sanction of international law, and will be protected, in the last resort, by the most appropriate organ of the international community.'
has been described by Professors McDougal and Reisman as 'a venerable
institution of customary international law ...regarded as accepted law by most
contemporary international lawyers'.6 It was accepted by both
Grotius and Vattel, and it has been invoked many times since. Examples are the
armed intervention by
The unilateral use of this ancient and respected doctrine, which is the expression of a profound and innate sense of justice corresponding to the natural feelings and reactions of the average person, is nevertheless questionable from two points of view. First of all it may open the door to all sorts of abuses and risks and be used as a pretext for acts of aggression: The justification for it is liable to be subjective, whereas one would wish to see the reasons for a humanitarian intervention established objectively. Secondly, it is reasonable to suggest that as a result of the creation of the United States Organization (and possibly of Regional Organizations such as the Council of Europe) there has been a transfer of authority and responsibility and that henceforth humanitarian intervention is a matter to be dealt with by international bodies rather than individual nations. By virtue of Article 39 of the Charter it is in the first instance the responsibility of the Security Council to' determine the existence of any threat to the peace ... and ... decide what measures shall be taken.' This means that it is for the Security Council to decide whether or not a collective humanitarian intervention is called for or, in certain cases, to authorize action on the part of an individual state, and the Member States are bound to accept this decision and to assist in its implementation. The General Assembly, for its part, may make recommendations in accordance with Article 55 of the Charter concerning the, universal respect for, and observance of, human rights and fundamental freedoms for all', and indeed Article 56 translates this general obligation into a specific duty for each of the Member States, who, pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of (these) purposes '.
Some authorities have argued that the right of unilateral intervention has been completely supplanted by these procedures for collective humanitarian intervention under the United Nation.7 But what if violation of human rights on a massive scale are not even considered in the United Nations to see whether they constitute a 'threat to peace', and if international organizations offer no redress or hope of redress? Must everyone remain impassive in the face of acts which revolt the human conscience, paralyzed by considerations which are primarily of a procedural nature or even - which is worse - by procedural obstruction? When it is clear that the international authorities cannot or will not discharge their responsibilities, it would seem logical to resort again to customary international law, to accept its rules and the validity of the doctrine of humanitarian intervention. At the same time, to avoid the obvious dangers implicit in this doctrine, it is suggested that, before unilateral humanitarian intervention by a single nation can be justified, the following requirements should be satisfied:
In our present world it is
only in quite exceptional circumstances that unilateral action on the part of a
state can be considered as legally justified on the basis of the doctrine of
humanitarian intervention, particularly if that action involves the use of
force on a scale of some magnitude. Unilateral action is likely to be arbitrary
and to lack the disinterested character which humanitarian intervention should
possess. In the situation with which we are concerned, and on the basis of the
rules we have laid down, India might be accused of not having pursued all
possible peaceful means of solving the problem since she did not submit the
matter to the Security Council - a step, we may add, which no Member State of
the United Nations saw fit to take. Such a reproach may seem somewhat
unrealistic, since it was plain to all that there was no prospect of the
Members of the Council reaching an agreement capable of offering any
possibility of an effective solution, and nothing could have been worse than a
show of decision which would have paralyzed action without providing a positive
solution. In our view the circumstances were wholly exceptional; it was
becoming more and more urgent to find a solution, both for humanitarian reasons
and because the refugee burden which India was bearing had become intolerable,
with no solution or even any hope of a solution in sight. Events having been
allowed to reach this point, it is difficult to see what other choice
129 British and Foreign State Papers 1129, 1138 (remarks of Mr. Webster, April 24, 1841).
2131 United Nations Treaty Series 3 (8 April, 1950).
3U.S. Committee for Refugees, World Refugee Reports 1969 and 1970.
4Oppenheim, L., 1962, International Law, 8th ed., Vol. I, p. 312 (ed. H. Lauterpacht).
5Borchard, 1922, Diplomatic Protection of Citizens Abroad, p. 14.
6International Lawyer, Vol. 3, No.2, p. 438.
7e.g. Jessup, Modern Law of Nations (1949), p. 170; Ganji, International Protection of Human Rights, 1962, Geneva, p. 44; Thomas & Thomas, The Dominican Republic Crisis 1965, Hammarskjold Forum, 1967, p. 20; the contrary view, namely that the right or unilateral humanitarian intervention remains unaffected, is stated by McDougal & Reisman, International Lawyer Vol. 3, No.2, p. 444.
8cf. Ganji, op. cit.. pp. 14, 15 and 38.
Summary of Conclusions
The following is a summary of the principal conclusions in this study:
(1) During the civil war
from 25 March to 3 December and during the international war from 4 to 18
December, massive violations of human rights occurred in
(2) These violations involved the indiscriminate killing of civilians, including women and children; the attempt to exterminate or drive out of the country a large part of the Hindu population of approximately 10 million people; the arrest, torture and killing without trial of suspects; the raping of women; the destruction of villages and towns; and the looting of property. The scale of these crimes was massive, but it is impossible to quantify them. Figures given by both sides tend to be greatly exaggerated (Part II (b)).
(3) In addition to criminal offences under domestic law, there is a strong prima facie case that criminal offences were committed in international law, namely war crimes and crimes against humanity under the law relating to armed conflict, breaches of Article 3 of the Geneva Conventions 1949, and acts of genocide under the Genocide Convention 1949 (Part IV).
(4) Persons who have
committed or were responsible for such crimes are liable to be tried under
international law by an international court. If, as has been reported, the
(5) The martial law regime
of General Yahya Khan was unconstitutional and illegal under domestic
(6) The Awami League leaders
were not entitled in international law to proclaim the independence of
(7) They were, however, justified under domestic law in using force to resist the attempt by the self-appointed and illegal military regime to impose a different form of constitution upon the country to that approved by the majority of the people in a fair and free election (Part V).
(8) The United Nations failed to use its available machinery to deal with the situation either with a view to terminating the gross violations of human rights which were occurring or to deal with the threat to international peace which they constituted (Part VI).