Symposium on Bangladesh Genocide and International Law: Exploring the Avenue of Justice at the ICJ

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Bangladesh is yet to materialise its quest for justice and accountability for the genocide committed against its people in 1971. Though there have been prosecutions of several counts of genocide before the International Crimes Tribunal of Bangladesh (ICT-BD), it is seemingly inadequate. All those convicted before the ICT-BD were Bangladeshi collaborators. Evidently, the actual planners and executors of the 1971 genocide, i.e., the Pakistani génocidaires, are either enjoying impunity or died without any trials. By any measure, the invocation of individual criminal responsibility via the prosecution of alleged crimes is one form of remedy. Thus, it appears to provide the minimal scope for ensuring justice by invoking individual criminal responsibility. On the contrary, the invocation of the State responsibility, which exists independent of individual criminal responsibility, allows claiming other forms of remedies available in international law.  These remedies spring from the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention) and ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Notably, the latter instrument is widely accepted as the codification of Customary International Law (CIL). These remedies may include the compensation for the commission of genocide, the affirmation of the obligation to investigate and prosecute alleged génocidaires and the recognition of the genocide.

Article IX of the Genocide Convention confers jurisdiction to the International Court of Justice (ICJ) over any dispute related to the interpretation, application or fulfilment of the Genocide Convention. It illustrates that the ICJ may have a role to ensure justice for the Bangladesh genocide. To explore the possibility of invoking ICJ’s jurisdiction regarding Pakistan’s responsibility for its alleged violation of the Genocide Convention, the blog piece will highlight some issues related to the jurisdiction and admissibility of the ICJ of such proposed intervention. The piece will commence with an unavoidable preliminary consideration pertaining to the proposed invocation of the ICJ jurisdiction. Then, it will highlight two practical challenges of the invocation of ICJ jurisdiction by Bangladesh against Pakistan: (i) the existence of a dispute and (ii) the standing of Bangladesh. Finally, it will conclude by providing some recommendations. Due to the prevailing legal uncertainties, the ICJ’s role remains very abstract. However, it is expected that this blog will initiate a debate among international lawyers on the ICJ’s potential role in ensuring justice and accountability for the 1971 Bangladesh genocide, leading to some concrete outcomes.

A Preliminary Consideration

Despite its population being victims of the crime of genocide, Bangladesh took 27 years to accede to the Genocide Convention. But Bangladesh’s Instrument of Accession to the Genocide Convention dated 5 October 1998 also contains a reservation to Article IX, subjecting the possibility of resorting to the ICJ to its consent. Consequently, Bangladesh, based on the principle of reciprocity, is barred from filing proceedings against another State without the latter’s consent. Notably, Pakistan ratified the Genocide Convention on 12 October 1957 without any reservation. I wrote elsewhere that Bangladesh should withdraw its reservation to Article IX of the Genocide Convention due to its moral and legal obligations. I would like to reiterate further that Bangladesh must consider withdrawing its reservation for facilitating the proceedings against Pakistan before the ICJ. Against this context, this blog will build upon the expectation that Bangladesh will withdraw its reservation. Interestingly, Pakistan initiated proceedings against India on the basis of Article IX of the Genocide Convention, despite the latter’s reservation. The Trial of Pakistani Prisoners of War case, though discontinued, may provide some valuable guidelines to bypass Bangladesh’s reservation by using Pakistan’s position. However, the current blog intends to leave such a possibility outside its limit.

The Existence of a Dispute Between Bangladesh and Pakistan

The existence of a dispute is a prerequisite for an inter-State dispute settlement. In the language of the PCIJ inthe Mavrommatis Palestine Concessions case, “[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” The persistent claims of Bangladesh regarding the commission of genocide by Pakistani forces since its first days of independence and the corresponding denial of such claims by Pakistan demonstrate the existence of a dispute. However, a dispute must correspond to intertemporal law. In the language of the Island of Palmas case, “a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time such a dispute in regard to it arises or falls to be settled.” Article 13 of the ARSIWA incorporated this principle. Moving to the case of the Bangladesh genocide, Pakistan already had an obligation not to commit genocide and investigate and prosecute the alleged perpetrators under the Genocide Convention. It is apparent from the Application Instituting Proceedings of the Trial of Pakistani Prisoners of War case. Besides, there existed a customary obligation to prevent and punish the crime of genocide at the material time (Barcelona Traction case, §34). Thus, the Bangladesh genocide was undisputedly covered by international law at the material time.

The follow-up question is whether the obligation to prosecute and investigate genocide existed at the time Bangladesh acceded to the Genocide Convention in 1998 or at the time when Bangladesh (hopefully) will withdraw its reservation. This blog piece proposes the two arguments. First, the obligation not to commit genocide and the obligation to investigate and prosecute genocide have different dimensions. It may be argued, relying on Article 14 of the ARSIWA, that the obligation to investigate and prosecute genocide has continuing character because the non-fulfilment of such obligation deprives the victims of their right to effective remedies. Second, the Jurisdictional Immunities of the State case provides some helpful insights. Germany instituted proceedings against Italy on the basis of the European Convention for the Peaceful Settlement of Disputes 1957. Germany made a reservation by excluding “disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”. Though the event leading to the dispute occurred during the Second World War and the said Convention entered into force between the parties in 1961, neither the parties nor the Court raised any concern. The matter of concern was the existence of a dispute. In the present scenario, the relevant issue is whether there is (or will be) any dispute at the time of the institution of proceedings. Accepting the fact that the obligation to prosecute and investigate has a continuing character will be crucial towards establishing a dispute in that instance.

Questions of Standing

Pakistan will most likely raise objections challenging the standing of Bangladesh. There may be two possible challenges. Firstly, it may object that Bangladesh was not a State during the commission of the alleged genocide. Indeed, Pakistan’s formal recognition of Bangladesh (1974) does not put any qualification on its understanding of Bangladesh’s independence. In the absence of such qualification, it can be argued that Pakistan accepted Bangladesh’s narratives of independence, dating back from 26 March 1971. It will be consistent with the Proclamation of Independence of 1971, adopted by the Government in exile of independent Bangladesh. The Bosnian Genocide (Preliminary Objections) case may also provide some jurisprudential guidance for Bangladesh. Secondly, Pakistan may contend that Bangladesh was not a party to the Genocide Convention in 1971, and consequently, it does not have any standing before the ICJ. In this respect, the partial argument has already been provided in the preceding paragraph. Moreover, the Bosnian Genocide(Preliminary Objections) case provides some materials to confront such challenges. In this case, Bosnia and Herzegovina filed the case before the Genocide Convention entered into force for it (nine days early). Serbia and Montenegro raised the objection that Bosnia and Herzegovina did not have any standing before the Court. In response, the ICJ termed it a remediable procedural defect and rejected such an objection (§ 24). It may be interpreted that the ICJ may entertain disputes even if the dispute occurs before one of the parties becomes a party to a relevant Convention, provided that other conditions are met. Though it will be very challenging for Bangladesh to establish its standing before the Court, it nevertheless appears to be plausible.

Concluding Remarks

Jurisdictional challenges are integral parts of inter-State adjudications. But the existence of challenges does not imply that there is no prospect of litigation. Instead, the prevailing situation surrounding the dispute between Bangladesh and Pakistan demonstrates the plausibility of establishing Bangladesh’s cause before the ICJ. It is utterly unfortunate that Bangladesh has been mostly limited to ensuring individual criminal responsibility, neglecting the avenues of the State responsibility of Pakistan for its alleged roles in 1971. It is high time Bangladesh reconsidered resorting to establishing such responsibility. To that end, Bangladesh should first withdraw its reservation. Simultaneously, there should be continuous debate over the ICJ’s potential role in ensuring justice and accountability for the Bangladesh genocide.

Quazi Omar Foysal is pursuing an Advanced Master in (Public) International Law at Université Catholique de Louvain, Belgium. He is currently on study leave from American International University-Bangladesh, where he has been working as Lecturer in Law since 2019.