The Editors of the Cambridge International Law Journal Blog endorses this statement by the Fellows of the Lauterpacht Centre for International Law condemning the aggression perpetrated by the Russian Federation against Ukraine. The events of the past month have sharply called our focus back to the acts of aggression taking place around the world. We condemn all abuses of international and humanitarian law and request that readers and contributors join the call by the Department of International and European Law at the National University of Kyiv Mohyla Academy for the international academic community “to raise their voices about the evils of war”. Please consider supporting the British Red Cross Ukraine Appeal and the UNHCR. Finally, the Ukrainian Institute, in London, has listed additional suggestions for people wishing to support Ukraine and Ukrainians.
Mohammad Shahabuddin is Professor and Chair in International Law & Human Rights at Birmingham Law School, University of Birmingham, UK. His research interests include history and theory of international law, international human rights with special focus on minority rights issues, postcolonialism and law, and Third World Approaches to International Law (TWAIL). He is the author of Minorities and the Making of Postcolonial States in International Law (2021) and Ethnicity and International Law: Histories, Politics, and Practices (2016), both published with Cambridge University Press. He is also the editor of Bangladesh and International Law (Routledge, 2021), a comprehensive analysis of international law from Global South perspectives with specific reference to Bangladesh. Shahabuddin is on the Editorial Board of the Asian Journal of International Law. He was an Expert Panellist at the 14th Session of the UN Human Rights Council’s Minority Rights Forum in December 2021. The following interview was virtually taken by Emraan Azad on May 9, 2022.
- What were the colonial experiences that led to the crisis of 1971 in East Pakistan (now known as ‘Bangladesh’)?
MS: A simple way of thinking about this, i.e. the coloniality or the colonial experiences involved in the whole situation, would be to think about the phenomenon of internal colonialism which is not really much discussed in colonial discourse. Before the partition of 1947, India and more specifically the Indian population as a whole had encountered British colonialism. The very partition of India as part of decolonisation is also a product of colonial rule in many ways. As I have argued elsewhere, the colonial policy of ‘divide and rule’ is only one way of thinking about the partition. The way colonialism itself operated in the Indian subcontinent had a great role to play beyond that divide and rule policy. The creation of India and Pakistan in a rather weird way, based solely on religious differences, could hardly be a realistic solution. However, this happened because of the colonial understanding of the nation and the role of religion in the making of the nation that defied the very act of partition and also defined the new state of Pakistan as an Islamic state. Back then, the logic was so powerful that this geographically weird arrangement did not bother anyone, and actually the elites of the then East Bengal were prominent spoke-persons for this model of Pakistan.
So, the point here I would like to make is very simple: the religious fervour was the direct outcome of coloniality, and colonial bureaucracy along with vested interests of local elites was responsible for this weird making up of Pakistan. Once this country was created, the glue of religion faded away very quickly. The defining line between us and them, Islam and Hinduism to create these two separate states quickly turned into something ethnic. There was a good number of reasons for that. The reason was the kind of internal colonial relations maintained by the ruling elites in West Pakistan, who in the independent country saw Bengal as “add on” to Pakistan. It also created pejorative ethnic relations vis-à-vis Bengali population in East Pakistan. And that of course led to discrimination.
In 1956, the leading newspaper Dawn from West Pakistan published data comparing senior military army positions and their allocations and distribution between West and East Pakistanis. If we look at the numbers, it is quite staggering. All senior positions disproportionately went to the people coming from West Pakistan. The same applied in case of civil service. For instance, in 1956 the number of the first class gazetted officers were 3769 from West Pakistan and 811 from East Pakistan. If we assess the sector wise distribution of resources, we will see the stark presence of discrimination between the two parts of Pakistan. In 1966, the rate of investment in defence in East Pakistan was 8.1% and 91.9% in West Pakistan. Similarly, 27.3% of the budget was allocated for education in East Pakistan and 72.7% for West Pakistan. We have all the indicators showing an industrial scale of discrimination.
To me, this is nothing short of internal colonialism, that the population in East Pakistan – at that time the majority in terms of demography – suffered in the hands of West Pakistani political and military elites. So, that is the coloniality I think your question is asking us to reflect on.
And when the Bengalis for legitimate reason resisted and the way the resistance was supressed by the Pakistani armed forces specially beginning from March 1971, reinforces the same colonial relations in the internal context. Atrocities against the Bengali amounts to an act of genocide, which is now well documented. Thanks to various civil society movements, including the Liberation War Museum and others in Bangladesh. Unfortunately, that has not been recognised as an act of genocide in the way we have seen the facilitation of recognition to other similar scenarios. It is quite heart-breaking!
- Did the Pakistan government commit an act of aggression against the people of Bangladesh?
MS: Yes, it did. Because the people in Bangladesh were resisting or voicing their legitimate concerns about the structural injustice and discrimination in each and every sector you can think of. There are more than enough data of those discriminatory practices in jobs, investment, and so on, and the Bengali population had every reason to resist such practices and they brilliantly did so. Hence, the response from Pakistan was nothing short of an act of aggression.
Remember also that the entire Pakistani argument was also based on territorial integrity which is one of the most sacred principles of international law. Zulfiqar Ali Bhutto in his speech at the Security Council on 15 December 1971, categorically accused the UN of “legalising aggression”. So, his version of aggression was the aggression of India in complete violation of international law and the territorial integrity of Pakistan. However, from Bangladesh point of view, we nascent country declared independence on 26 March 1971having followed a brutal genocidal night of 25 March 1971. It established an interim government in April, and launched an international campaign seeking support for its legitimate cause. So, for Bangladesh, everything happened then was an act of Pakistani aggression in violation of international norms of human rights and human dignity. These different versions are not reconcilable, because international law does not really permit it.
- How do you respond to the statement that the Bangladesh crisis in 1971 was a matter of “internal affairs” of Pakistan?
MS: To answer this question, let me reiterate again that territorial integrity is one of the sacred principles of international law and the current international system is very much based on this. But at the same time, human rights are also one of the fundamental principles of international system, mentioned several times in the UN Charter itself.
If we talk about international order and this obvious idea that it has to be always based upon territorial integrity – I think it is a false premise. And it is much truer in today’s world when we see this kind of reckless actions by certain powerful countries – be it Russia in Ukraine, the US in Afghanistan, the US and the UK in Iraq, Saudi Arabia supported by the US and the UK in Yemen – the stories remain the same. we cannot really talk about territorial integrity and celebrate it while completely ignoring human rights. The current international system as we know today following the second world war is an outcome of both these positivist ideas of sovereignty and territorial integrity. But at the same time, the idea of human rights following the experiences of the Holocaust reminds us what happens when a country declares that their version of sovereignty cannot be restrained by any superior rules of international society; that sovereignty cannot be curtailed by anything. This reckless hyper-positivist understanding of sovereignty is what led to the moment of the Holocaust. The creation of an international order of which India, Pakistan and Bangladesh are all parts of – today and back then – is a product of that comprise between human rights and sovereignty. Thus, the Pakistani understanding of aggression that whatever they wanted to do within their territory was a matter of internal affairs, had no place in international legal architecture. I am not talking about any moral position here. I am very much talking about international legal architecture that was created based on experiences of this sort of “internal matters” argument and it had no place back in 1945 since the creation of the UN. So, it would be wrong to claim that the international system that we have in place since 1945 is all about territorial integrity and sovereign supremacy and everything that happens within the boundaries of a country is an internal matter. It is not legally justified in cases of gross violations of human rights and genocide. Whether currently international law has an effective mechanism to prevent such awful events is a different question.
- Given the crisis of 1971, how do you evaluate the right to self-determination within the contest between territorial sovereignty and human rights concern?
MS: When the UN Charter talks about self-determination, any international lawyer would tell you two things: self-determination in colonial context and self-determination in external context. However, putting self-determination in human rights instruments like ICCPR and ICESCR, creates complexity. Human rights would then mean less focus on territorial integrity and sovereignty, and more focus on real people and human beings. This is the tension between territorial sovereignty and human rights.
However, when this idea of self-determination came into being, it was very much seen in the colonial context. If there is a non-governing territory, it has an intrinsic right to self-determination. No one disputes this. There are plenty of international adjudications and the ICJ rulings. Very recently in the Chagos Island case, the principle was applied again. Today it is a jus cogens principle which creates an erga omnes obligation.
So far as minority groups within the colonial territories are concerned, the question arose: who this right belonged to at the moment of decolonisation? The understanding was that it belonged to the entire people. Why? Because those post-colonial elites were worried that if all constituent elements start asking for their own right to self-determination, then there will be no state at all. So, in the case of Congo, Belgium being the colonial ruler actively promoted a separatist movement by the mineral rich Katanga peoples so that Belgium could continue to have access to those minerals and also made preferential trade deals with Katanga. In the General Assembly, there was outcry against such actions of Belgium. There were Security Council and General Assembly resolutions condemning these actions and Belgium was literally asked by the UN to leave as soon as possible. So, all post-colonial elites made the point clear that the self-determination belonged to the people as a whole. That is why uti possidetis and that sort of things come into play.
When it comes to East Pakistan at the time, there is a concept called “remedial secession”. The idea is that international law does not give minority groups or subnational groups any automatic right to external self-determination. Self-determination belonged to Pakistan as a whole. Externally that would mean no other country can interfere in the internal affairs of Pakistan as per Article 2 of the UN Charter.
What about sub-national groups within the country? Here the principle is that any ethnic group as a whole has this right of internal self-determination which does not automatically mean a separate statehood. Within the confines of territorial integrity of the state (in this case, Pakistan), you can exercise certain privileges and autonomy. The Federal system of government allows for it. Because all those federal units enjoy a significant amount of autonomy in various places. That would be like power sharing and regional autonomy; these are all examples of internal self-determination short of outright secession or statehood which international law does not permit.
But the grey area is if this internal self-determination does not work, if the central government leaves you in a situation that allows for abuse you and results in gross human rights violation or threatens your very existence – which West Pakistan did against the Bengalis, then remedial secession is the way forward. Specially after March 1971, the kind of action West Pakistan took vis-a-vis East Pakistan did not leave the latter with any means other than secession. This would very much qualify as remedial secession but not being a part of international law. However, this is very much accepted in any international human rights discourse on right to self-determination.
This argument was made by leading international law expert Professor James Crawford back in 1971 on the legal status of East Pakistan: whether East Pakistan was a non-self-governing territory. There is a list under the UN for that trusteeship council list of non-self-governing territories. For obvious reasons, Bangladesh was not included. East Pakistan was very much part of Pakistan as a federal unit – however weird that might have looked. Officially, Bangladesh was not a non-self-governing territory. At the same time, in 1971, there is a powerful argument to revisit the very legal status of Bangladesh as a non-self-governing territory, given firstly, the ethnic composition and the focussed concentration of Bengali population; secondly, the lack of geographical proximity; and finally, the gross violation of human rights. As I have said earlier, West Pakistan’s response over a long period of time was very much like an internal colonial rule. All these to some extent put Bangladesh in a non-self-governing territory like scenario and gave the same a very strong standing to devise a renewed or revised legal status under the circumstances specially from March 1971. If that is the case, then you very much qualify for right to self-determination as part of the colonial context. Now that is a very theoretical argument. There is a normative argument too, which is that international law is not very much open about that positionality of remedial secession, as I said before. Because countries like India and others put forward some significant support in favour of Bangladesh in the form of humanitarian intervention at the very final days of the war as an exception to the general principle of non-intervention and territorial integrity. Again, India itself was nervous to do it in a very explicit way. Because there were similar cases within territorial confines of India. That was the problem why many countries even if they were sympathetic about Bangladesh maintained a distance. In the General Assembly, we did not see the outcry. Because most of the countries were thinking about their own backyard.
- Did international law (or say, international organisations) immediately respond to the crisis of 1971? What were the immediate responses of international law and how well did they work?
MS: As we see the pathetic situation in Ukraine meaning the way people in Ukraine have been the victims of big powerful countries’ realist politics and power game, it in many ways reminds me of the Bangladesh’s situation of 1971. The way the US and China sided with Pakistan. On the other hand, Soviet Union as an ally of India was very sympathetic to the Bangladesh cause, and this created a kind of deadlock in international politics. Given the situation, Bangladesh broke away from Pakistan at the very height of the cold war when the world was far more polarised than we see today, and in that sense, the creation of Bangladesh has been a success story in many ways.
Between March and December 1971, we do not see much movement at the UN. Quick search of the UN database of all resolutions that the General Assembly had adopted in 1971, would not tell us much about the Bangladesh situation. These brutalities were going on since March, but you don’t have much until December! The war got some serious attention at the UN level only in December. So, on 6 December 1971, the Security Council had to deal with this question. By that time, it was unfortunately seen as an India-Pakistan conflict. The Security Council tried to do something, but due to divergent vested interests of the permanent five equipped with the veto power, it could not do anything meaningful. However, the Security Council had adopted a very brief resolution titled as Resolution 303 (1971) of 6 December 1971, which said that, “[t]aking into account that the lack of unanimity of its permanent members at the 1606th and 1607th meetings of the Security Council[, the Council] has prevented it from exercising its primary responsibility for the maintenance of international peace of security.”
The resolution clearly said that due to the lack of unanimity of its permanent members the Security Council fails to perform the core responsibilities for which the UN was created to maintain peace and security. So, what did it do? The Security Council decided to refer the question contained to the General Assembly at its twenty-sixth session.
On 6 December 1971, the General Assembly adopted quite a long resolution in two parts titled as Resolution 2790 of the 26th session of 6 December 1971 which was all about refugees and tackling humanitarian crisis. There was no condemnation of action of the Pakistani army. It does not say anything about violation of territorial integrity of Pakistan as well. It simply focusses on humanitarian situation calling out all parties to do as much as possible for these unprecedented humanitarian catastrophes in the form of refugee crisis in India.
At that time, the Red Cross was very active. There were nearly 10 million Bengali refugees in India which was itself a poor country. The General Assembly resolution was all about helping India, calling upon all international agencies, organisations, and NGOs to do something about the unprecedented situation. In the middle of the war, it was talking and debating about creating an environment of repatriation as a solution so that people can go back to their country, but frustratingly without mentioning that a genocide was being committed in Bangladesh.
- Could international law have behaved differently in 1971?
MS: Not really. Because international law had done what international law does. It offers us a number of tools and leaves these tools to scholars, to policymakers, and to states to make the best out of it in the way they want. Pakistan and its allies made the best use of international law in the form of territorial integrity, sovereignty, and aggression. They could not make any more powerful argument by really making the entire international institutions muted so that the latter cannot do anything about it. At the same time, global civil society, India, Bangladesh government in exile, and scholars like James Crawford, Kamal Hossain, Rafiqul Islam, Subrata Roy Chowdhury and many other – they all made the best use of international law, by arguing for remedial secession as part of self-determination, by talking about humanitarian intervention, human dignity, and human rights – these are all parts of international law. The case of Bangladesh is a very powerful reminder that international law is what we want this to be. And at the end, Bangladesh became Bangladesh, not because of international law, but because of popular resistance, our self-dignity and self-belief. Then international law came forward and recognised us as one of the members of international community. That is the powerful reminder of the very nature of international law – and what to expect and what not to expect from it. And also to strategise our own actions accordingly. It also tells us a lot about how international law is very much embedded into global power politics.