Symposium on Bangladesh Genocide and International Law: Genocidal Rape and Intersectional Harms

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.


Mass rape perpetrated during war, as Mackinnon perceptively observes, is specifically rape “under orders” (Mackinnon, pp. 11-12). It is not, as she notes, rape out of control, rather rape under control. It is also rape unto death – she opines – rape as massacre, rape to kill and to make the victims wish they were dead. It is rape as an instrument of forced exile, rape to make one leave one’s home, never wanting to go back – it is rape to be seen and heard and watched and told to others: rape as spectacle, she continues. It is rape to drive a wedge through a community, to shatter a society, to destroy a people – thus, it is rape as genocide, Mackinnon concludes. This is how Mackinnon locates rape as but a constituent element of genocide within the polyvalent spectrum of genocide itself. However, there is a factual dubiousness that inheres the very idea of rape as an actus reus of genocide. As Copelon fears, emphasis on genocidal rape gets the subjectivity of women subsumed in the category “people” primarily against whom genocide is committed. Such an emphasis, she observes, posits women as objects of genocide and masks the experiences and injuries that women as individuals undergo and sustain. In this context, she thinks it is important to “surface” gender in the midst of genocide, recognising that genocidal rapes committed against women, inflict a multiplicity of intersectional harms implicating an individual woman’s ethnicity as well as her gender.

In the context of the liberation war of Bangladesh too, mass rapes were committed “under orders” (excerpt of Nilima Ibrahim’s Ami Birangona Bolchhi (As a war heroine, I speak)).  Women, alongside girls of eight and grandmothers of seventy-five were sexually assaulted during the nine-month repression in 1971. This piece critically views mass rapes as an actus reus of the genocide committed by the Pakistanis against Bangalees. Additionally, it makes an attempt to surface ethnicity/race/religion as well as gender from within the spectrum of such genocidal rape.

Prelude to the Ideation of Genocidal Rape

With respect to the status of rape as a war crime, rape is included in the definitions of crimes against humanity; even though rape is not explicitly underscored as a “grave breach” or as a violation of the laws and customs of war, it has been interpreted as such. In addition, rape can be an act of genocide (Russell-Brown, p. 11).

Through the landmark Prosecutor vs Jean-Paul Akayesu, the International Crimes Tribunal for Rwanda (ICTR) became the first international criminal tribunal to define rape as an act of genocide, underscoring rape and sexual violence as acts committed against specifically and solely the Tutsi women with an intent to destroy the Tutsis in whole or in part.

The crime of genocide is defined in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. As per the Convention, there must be an intention to destroy, in whole or in part, a national, ethnic, racial or religious group through: the killing of members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.  Rape is not enumerated explicitly as an act of genocide. However, rape can come within the purview of “serious bodily or mental harm” so as to be considered as a genocidal act (Russell-Brown, p. 12).

Before proceeding further, it will not be out of place to note that Pakistan acceded to the Genocide Convention on 12 October 1957, and therefore, for the genocidal acts committed against the people of East Pakistan in the year 1971, Pakistan is accountable under international law.

Surfacing Ethnicity/Race/Religion

Establishing genocide requires dolus specialis: intent to destroy a national, ethnic, racial or religious group. Mass rape does not constitute genocidal act simply because it occurs at the same time or in the context of genocide. The requisite intent must be proven as well (Russell-Brown, p. 362). In this context, therefore, the rapes that were committed in the then East Pakistan were “genocidal rapes” not because they occurred during the 1971 genocide but because there was in fact a specific intent to destroy the Bangalees by and through raping Bangalee women, among others.

The pursuit of “dolus specialis” becomes rather easy when the multiple identities based on ethnicity/race/religion are made to surface. In the context of the genocide committed against the Bangalees, the political identities at play are rather complex and require a careful probe.

The Bangalees as an ethnic group comprised of both Muslims and Hindus, were despised and treated as racially inferior by the West Pakistanis (Jahan, p. 296). The West Pakistanis undermined the Bangalees on various grounds, including on the basis of the language they spoke and the religion they professed. As a language arguably derived from Sanskrit and written in a similar script, Bangla was considered a “Hindu” language (Oldenburg, p. 724). Additionally, the Islam professed by the Bangalee Muslims was regarded as “innovations, accretions and deviations” crafted by  “Indianized”, “half converts”, “nominal Muslims”, who were nothing but “unreliable co-religionists” for the Pakistanis who considered themselves as true and pure Muslims (Mookherjee, p. 1581, citing others). To the Pakistani rulers, it was the presence of the Hindu/Bangalee Muslim elements that purportedly explained the aberrant behaviour of the Bangalees – from the refusal to accept Urdu as a state language to the struggle for independence (Oldenburg, p. 725).

Now, one of the main reasons underlying the mass rapes perpetrated by the Pakistani army and their local Bangalee collaborators was arguably to improve the genes of Bangalees and to populate the Eastern front with a new breed of “pure” Pakistanis (Mookherjee, p. 1582). Rape thus manifested as the essential means to change the racial makeup of the Hinduised/half-Muslims of the river plains, who were seen to be small-boned, short, dark, lazy, cowardly, effeminate, and bheto (rice and fish-eating), compared to the so-deemed broad-boned, tall, fair, wheat-eating, warrior-like, resilient, manly, brave Muslims of the rough topography of Pakistan (Mookherjee, p. 1582). Thus, during the liberation war, the bodies of women became the predominant sites on which racialised discourses operated (Mookherjee, p. 1582).

And amid the politics of identities – deemed superior and inferior – lay naked the bodies of women and girls – as a vehicle, a tool, and an instrument of furthering the assimilationist agenda of Pakistan.

Surfacing Gender and the Intersection of Gender and Essential Bangalee-ness

There are numerous accounts on the injuries sustained by women as individuals in the 1971 liberation war. The women were targeted specifically for their gender, which is sufficient to understand the entanglement of “gender” with the genocide. The Pakistani army spared no one – be they Hindu or Muslim – from elderly widows to schoolgirls not yet in their teens – from wives of high-ranking civil officers to daughters of the poorest villagers and slum dwellers (Amita Malik, cited in Sharlach, p. 95).

Pakistani soldiers had not only violated Bangalee women on the spot; they abducted and held them by force in their regimented barracks, tanks, and bunkers. The women were kept naked to prevent their escape (Brownmiller, p. 169).  After raping the women, soldiers often murdered them by forcing a bayonet between their legs; the prepubescent girl, cut and gang-raped, often died from the injuries (Lisa Sharlach, p. 95). These invasions happened because the women were in fact women – clearly, the rapes were committed onto women by men – and ignoring the gendered premise of the sexual violence is therefore both imprudent and unjustifiable.

Now, beyond this subjectivity of women, perpetrated against as women and as victims of extreme sexual and reproductive violence on the basis of gender, women can also be found as active agentic members against whom the Pakistanis had a specific abhorrence. Within the spectrum of the puritanical version of Islam, Bangalee women were specifically located as the markers of religion or the lack of it – Bangalee women were perceived as the bearers of Hindu/Bangalee/Indianised Muslim culture and tradition. Women’s sartorial as well as cosmetic practices came under scrutiny (D’Costa, p. 88, citing Kamal, 2001, Kabeer, 1988).

The central Pakistan government suggested that sari, widely worn by Bangalee women, was “vulgar”, for instance. Propaganda against wearing saris and teep (a point or dot between the eyebrows) began at universities and colleges too (D’Costa, p. 89). Eventually, saris were officially declared un-Islamic, and Bangalee women were banned from wearing them on state occasions (Kabeer, p. 110, cited in D’Costa, p. 89). Furthermore, Pakistani society always disapproved of the Bangalee middle-class culture of training daughters in the arts of singing, dancing and drama (Kabeer, p. 110, cited in D’Costa, p. 89).

Women, thus, were a “category” in themselves, carrying a strong Hindu influence in the eyes of the so-called “pure” Muslims, and a challenge to the Pakistani state’s puritanical version of Islam. Rape, therefore, alongside a sexual tool, was a tool for engendering power over this very category which was seen as the embodiment of essential Bangalee-ness. Individual raped bodies were a testimony of power that was at play on many levels, across several intersections – culture, society, religion (Saikia, p. 113), as well as gender.


The price women had paid for nation-making was enormous in Bangladesh. The intersectional harms that women sustained – both as women and as Bangalee women were enormous as well. In the context of Bangladesh genocide therefore, it is important to underscore rape as an actus reus of genocide, alongside as a crime against humanity and a grave breach of the customs and laws of war. Moreover, 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.

*It is to be mentioned that women also participated in active combat during the liberation war. This piece is only about women who were the victims of sexual violence at the hands of the Pakistani army and their local collaborators.

Psymhe Wadud teaches law at Bangladesh University of Professionals (BUP). She supported the works of the United Nations Office on Drugs and Crime in Bangladesh and the Maldives as a Consultant. Psymhe completed her graduation and post-graduation in law from the University of Dhaka.  She specialises in International and Comparative Law.