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Introduction
A number of international law concepts, including the crime of genocide, right to self-determination, humanitarian intervention, etc. were put to a severe test over the struggle for national liberation of Bangladesh in 1971 (Rahmatullah Khan, in Mohammed Ayoob et al (eds), p. 85). Garry J Bass points out, “this case (1971 Liberation War) is crucial for what it shows about the weight given to international law and the United Nations by India, the world’s largest democracy, emerging as a major actor in a new Asian century – when the future of international law and global order will be determined in large part by rising Asian great powers, above all China and India.” (Bass, p. 228).
Apart from international crimes committed within the territory of East Pakistan (now Bangladesh) in 1971, a major issue in this regard was the mass influx of refugees from Bangladesh to India. In the campaign of terror by the Pakistan army against the Bengali civilian population in Bangladesh, millions of persecuted Bengalis sought refuge in the neighbouring countries. India opened its border and sheltered maximum number of Bengali refugees in its 50 camps (mostly in the West Bengal province), each equipped to accommodate 50,000 refugees, run by officials from the central government of India (Luthra, pp. 2467-2472).
Background of the Refugee Crisis in 1971
From March 1971 onwards, each day around 10,000-50,000 Bengalis sought refuge in India. By the middle of June 1971, there were some 5,330,000 Hindu refugees, as against 443,000 Muslims and 150,000 from other groups (Pakistani Division, Ministry of External Affairs, India, Refugee Statistics, cited in Bass, fn. 202, pp. 255). India claimed that the number of refugees was 9.89 million, of whom 6.8 million stayed in official camps and further 3.1 million with relatives or friends in India (Mukherji, p. 365). Another 50,000 people originated from the Hill Tracts of East Pakistan fled to Burma (now Myanmar).
The prime targets of elimination in 1971 by the Pakistan Army were the Hindus, political leaders and supporters of Awami League, Bengali intellectuals and whoever then supported the right to self-determination by the Bengalis. Later, it was found that between 70-90% of these refugees were Hindus (Kabir, p. 84).
Thousands of people died on the march to India (Lockerbie, p. 48). Usually, houses vacated by refugees were plundered after they had left. The refugees continued to be robbed on their way to the border. Like in a remote area called Baghachera, the Peace Committee – set up by the Pakistan government on 10 April 1971 with an aim to assist the military forces in conducting military operations – collected “a toll from refugees of one rupee per person, five per bike and ten per bullock cart” (Gerlach, fn. 7).
Treks of refugees or individuals were attacked by Pakistani troops, particularly at river crossings. Observers in the camps found “many refugees with gunshot or bayonet wounds” (ibid, p. 138). For instance, on 20 May 1971, an estimated 10,000 people, including children, gathered to flee to India through any available border route, were killed by Pakistani forces in the small town Chuknagar in Khulna district.
India’s Legal Positioning in the War
India had endured the ordeal of sheltering some ten million Bengali refugees, but clearly stated to repatriate them once the war ends (The New York Times). India did not want to be bound by the international regime’s commitments to refugees, so this decision was a manifestation of its voluntary exclusion from its obligations (Datta, p. 60). India called them refugees and engaged with international regime in search of assistance, and to manoeuvre for a political solution that would end with a friendly, non-aligned neighbour in the east (Kapoor, p. 187).
The Bengali population fleeing from Bangladesh crossed the border and were registered under the Foreigners Act of 1946 in India. The Indian government considered their stay would be temporary and they would not be permitted to work, which, however, many violated this. Bengali refugees had less freedom of movement and provided with food rations on their registration in the refugee camps (Gerlach, p. 136).
In 1966, India had accepted the principle of non-refoulement via the Bangkok Principles. The government was committed not to send refugees back to certain persecution, nor would it allow the international community to excuse the crisis on grounds of India’s non-accession to the UN refugee treaties (Kapoor, p. 198).
The increased guerrilla activities were initiated due to an on-going stream of refugees into India (ICJ Report, p. 42). India’s support for the armed insurgency against West Pakistani military rule also extended to relief to refugee camps aiding. As the number of Bengali refugees increased in the borders shared with India, Prime Minister Indira Gandhi made a calculated decision to fully assist in the war of Bengali independence against West Pakistan as a way of humanitarian intervention. The camps provided a supply for recruits to the guerrillas known as Mukti Bahini, a Bengali uprising from inside India’s borders, and also served to take care of the insurgents’ dependants (Kapoor, p. 197). The Indian Ministry of Defence’s account of the aid provided to the guerrillas claims that the defeat of the guerrilla force and the ‘freedom movement’ would hinder the return of the refugees (ibid). The 1972 report of the International Committee of Jurists (ICJ) acknowledged the inadequacy of the international community’s response to the crisis. In fact, it points out that humanitarian reasons and the economic burden of the refugees explained India’s position.
The Role of the United Nations
By the end of April 1971, India’s Permanent Representative at the United Nations requested help for refugee relief. India’s proposals for the UN’s role in the conflict involved restoration of human rights to the people of East Pakistan by their government, international assistance for refugees, persuading political normalisation in East Pakistan, that the government of East Pakistan be held responsible for the refugees, and that the Secretary General keeps the problem under constant review.
The situation was first raised in the Social Committee of ECOSOC in July, and at the 51st Plenary Session of ECOSOC the UNHCR reported on the refugee problem. The Council decided to refer the report to the General Assembly without debate (ICJ Report, p. 82). In his report to the General Assembly, the Secretary-General stated his belief that the UN had to take some action against the situation in East Pakistan, but he did not specifically suggest any action by the General Assembly (ibid).
Later, the UN Secretary-General U Thant designated the United Nations High Commissioner for Refugees (UNHCR), Prince Sadruddin Aga Khan, as focal point for all UN agencies for refugee relief efforts in response to India’s request. In following months, the UNHCR and some other international organizations started working in the refugee camps for assisting Indian government to provide basic necessities to the Bengali refugees until the war was over.
Bangladesh gained its independence on 16 December 1971. By 6 January next year, around one million refugees had already returned to the independent state Bangladesh, by late January six to eight million, and by late February over nine million. As the UN estimated, by the middle of February, approximately 8 million had crossed back into Bangladesh (UNHCR).
Conclusion
Throughout the liberation war movement, India was quite miserably overwhelmed by the responsibility of trying to look after so many refugees in its refugee camps. Hence, the Indian government – as a matter of justification – enabled its military options in favour of Mukti Bahini to stop the atrocity crimes which were started and continued to be committed by Pakistan. (Cheema, pp. 10 & 12). However, the role of India and its intervention in this war had been a debated issue in international law, as popularly argued by Gary J. Bass in his paper “The Indian Way of Humanitarian Intervention”.
The role of UN could be evaluated, as of a concerned but as bystander. While it took partial responsibility in aiding millions of refugees fleeing to India, it failed to take any positive step in order to avert the course of actions, which ultimately led to those tragic events (EFSAS, p. 10).There had been several estimates about the total death toll in the 1971 war, however, any estimate of wartime mortality must include these refugee death toll figures as these refugees were the direct consequences of the war itself (Rahim).
Naureen Rahim is a PhD Research Fellow at the Faculty of Law, University of Oslo, and Adjunct Lecturer, Department of Law and Justice, Jahangirnagar University.