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The Bangladesh genocide and Bangladesh’s independence movement (also known as the ‘liberation war’) are two inseparable historical events of 1971. For nine long months, when the ‘wretched’ Bengali freedom fighters were fighting really hard to get liberated from the clutches of the organised armed forces of Pakistan and give birth a new independent state to be known as ‘Bangladesh’, the Bengali nation itself – at the same time – suffered an egregious act of genocide in the same known hands of the Pakistani military forces and their local collaborators. This is why, perhaps, the taste of independence is so precious to every freedom-loving people in Bangladesh. Relevantly, Bangladesh pledged in the preamble of its Constitution which was enacted within a year of independence, that “it shall be a fundamental aim of the state to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.” That the birth of Bangladesh and the genocidal experience that it was fed with is not an isolated event of international law discourse is also reflected in the same preamble in which the Bengalis further vowed to “make [their] full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind.”
In this backdrop, this symposium is part of a broader effort to think about Bangladesh genocide in the context of international law. As Bangladesh has just observed the fifty-first anniversary of the independence movement as well as the brutal genocide of 1971, this symposium intends to reflect to this historical event of the Bengali nation in connection with the types of roles international law and international institutions – specially the UN – played back then. In addition, how some of the concerned nation states such as China, the US, India, and the Soviet Union interacted with as well as contributed to shaping international law is deciphered through various writings of this symposium. A cohort of the post-1971 generation of Bangladeshi international lawyers based in both Bangladesh and elsewhere have contributed to this symposium which contains a series of one interview and seven short articles.
The first entry to this symposium is an interview with Professor Mohammad Shahabuddin who speaks about issues like internal coloniality leading to liberation war movement through the exercise of right to self-determination, the unjust war, i.e., the act of aggression imposed on the Bengali population by the Pakistani military forces, and the efficacy of international law and international institutions, specially of the UN in the context of the geo-politics of 1971. One of the important takeaways from this interview would be revisiting the ideas like territorial sovereignty and the principle of non-intervention vis-à-vis the peoples’ right to self-determination in the setting of gross human rights violation amounting to genocide. The conclusion of Professor Shahabuddin – that international law could not have acted differently in 1971, rather what it had done back then is what it does usually – is a very powerful statement which quiet ironically reminds us about the very nature of international law today.
In the piece “Rape as an actus reus of Bangladesh Genocide: Surfacing Intersectional Harms”, Psymhe Wadud makes a critical assessment of mass rapes as an actus reus of genocide, alongside as a crime against humanity and a grave breach of the customs and laws of war committed by the Pakistanis against the Bengalis. In so doing, she emphatically argues that “it is neither conscientious nor pragmatic to view women as mere untethered “objects” of Bangladesh genocide – as members of a group who had to sacrifice their so-called honour. It is crucial to view them as active subjects who were specifically targeted because of their multiple, overlapping, and politically significant intersectional identities that international criminal law is yet to fully recognise and reflect on.”
The next piece “The Refugee Crisis during 1971’s Liberation War”, written by Naureen Rahim, demonstrates how the government of India dealt with (or say, protected) millions of Bengali refugees during the liberation war in juxtaposition with the development of international refugee law back then. In addition, she highlights the presence of the UN as one of the bystanders in the ongoing genocide of 1971. She argues how the Indian government conceived the refugee crisis as an imperative practical reality to extend its military strength in aid of the freedom fighters to put an end to the violence and atrocities against the Bengali population.
Written by Shaoli Dasgupta, “Half a Century Later, Bangladesh, Its Own Torch Bearer: Analysis of a Unique Nation from Liberation to Justice” sheds light on the failure of the UN on two fronts: firstly, with regard to the establishment of a fact-finding mission, and secondly, concerning the possible launch of international trials of the Pakistani perpetrators under international law. Apart from this, the piece highlights Bangladesh’s own initiatives towards truth and reconciliation in the post-1971 society. Taking into consideration, the UN’s involvement in the situations of former Yugoslavia, Rwanda, Lebanon, Syria and Myanmar, the piece concludes with these words: “Bangladesh has successfully paved the way to ensure justice on its own, through a formal justice system in addition to ensuring peace and reconciliation through persuasive transnational justice forums.” And this is how Bangladesh has become a unique case in its endeavour to both liberation and justice in the discourse of international law.
Dr. M Sanjeeb Hossain in his writeup “The International Crimes Tribunal of Bangladesh and the Complementary System of Justice” argues that the so-called presence of an ‘implied’ obligation in the ICC Rome Statute to enact comprehensive domestic legislation does not mean that states like Bangladesh have to replicate the Rome Statute-fixed standards of justice in its national legal framework. Accordingly, he asks the critics to take note of the non-requirement to imitate ‘ICC standards of justice’ while judging “the legality and legitimacy of the national courts fighting impunity – such as the International Crimes Tribunal of Bangladesh”. He concludes further saying that “[a]ssessing the ‘quality’ of justice offered by national criminal jurisdictions in a manner that does not take into account the context within which that judicial system operates and fumbles in appreciating the rules of assessing the legality and legitimacy of domestic courts functioning within the ‘complementary’ system of justice, may end up shielding the culture of impunity.”
In “International Crimes Tribunal of Bangladesh and the Application of Customary International Law”, Dr. Manjida Ahamed shows that there is a growing tendency on behalf of the national tribunals to pay specific attention to applying the rules of customary international law, despite that states are not bound to follow these rules in the adjudication of international crimes. Taking up the case study of International Crimes Tribunal of Bangladesh and comparing this to other scenarios, she argues the effort made by the Tribunal to identify and apply the customary rules of international crimes is not an unusual event and there are several reasons which possibly explain as to why the Tribunal’s compliance and the necessity to apply customary international law is an important development of international criminal law.
Quazi Omar Foysal in “Justice and Accountability for the 1971 Bangladesh Genocide: Is There Any Role for the International Court of Justice?” explores the possible ways of invoking the ICJ’s jurisdiction regarding the state of Pakistan’s responsibility for its alleged violation of the UN Genocide Convention in 1971. In this venture, he highlights some of the issues in relation to jurisdiction and admissibility of the ICJ on such plausible intervention. Furthermore, he purposively expounds two practical challenges for invoking the ICJ’s jurisdiction by Bangladesh against Pakistan, i.e., (a) the prerequisite of the existence of a dispute between two states; and (b) Pakistan’s objection towards the standing of Bangladesh. The piece concludes with the following words, “[i]t 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 [to the UN Genocide Convention]. Simultaneously, there should be continuous debate over the ICJ’s potential role in ensuring justice and accountability for the Bangladesh genocide.”
The very last entry to the symposium deals with “The Question of Criminal Accountability of the Pakistani Prisoners of War” authored by Emraan Azad who argues to push to hold the Pakistani prisoners of war accountable on the genocide of 1971. In what follows then, he argues that even after the fifty-one years of the commission of genocide, the major perpetrators, i.e., the Pakistani (repatriated) prisoners of war do and must incur criminal responsibility as for the reasons that the prosecution of international crimes is not time-barred and that an act of clemency which was awarded to them through a tripartite agreement of 1974 cannot act as a legal currency for the alleged (repatriated) perpetrators to evade their international criminal responsibility – either under Bangladeshi law or international law.
The semi-centennial later, the genocide of Bangladesh is still not widely recognised by the major powers and global institutions including the UN in general and the government of Pakistan in particular. This has been the case for so many reasons – one of which is definitely the unfortunate absence of “globally accepted” and “critical” international law scholarship on the genocide itself both from inside and outside Bangladesh. With a hope that the genocide of 1971 will secure due recognition globally, this symposium aims to assess the subject-matter in hand from all possible frontiers of international law to take the same to the reach of wider international law readership. The success of this initiative would therefore depend on critical reflection and legal question we would receive and/or counter from the valued readers of the Blog. A beginning of scholarly exchange on the issue of Bangladesh genocide and international law would not only help us obtain wide-reaching recognition of the past itself, but also come one step forward to join the alliance of “Nunca Más/Never Again/Stop Genocide” once and for all. To this end, let the international law stories of struggle for truth, justice and reconciliation define us for what we are today – the freedom-loving human beings, an identity which is very attached to our existence.
Emraan Azad is an Assistant Professor in Law, Bangladesh University of Professionals (BUP). He did his LLM in International Law at the University of Cambridge with a Commonwealth (Cambridge) Scholarship in 2020-21. During his LLM tenure, he served as one of the General Editors at Cambridge International Law Journal. His twitter handle is @emraanazad