Symposium on Bangladesh Genocide and International Law: Rape as an Actus Reus

Introduction

Mass rape perpetrated during war, as MacKinnon perceptively observes, is specifically rape “under orders” (MacKinnon, pp. 11–12). It is not rape out of control, but rape under control. It is also rape unto death—rape as massacre, rape to kill, and rape to make victims wish they were dead. It is rape as an instrument of forced exile, rape to make one leave one’s home and never want to return. It is rape to be seen, heard, watched, and told to others: rape as spectacle. 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 therefore places rape as a constituent element of genocide within the broader spectrum of genocidal violence. Yet there remains a factual and conceptual difficulty in treating rape as an actus reus of genocide. As Copelon argues, emphasis on genocidal rape can subsume women’s subjectivity into the category of “people” against whom genocide is committed. Women risk being seen merely as objects of genocide, while the specific harms they endure as individuals are obscured.

For that reason, she stresses the need to “surface” gender within genocide, recognising that genocidal rape inflicts multiple and intersectional harms connected both to ethnicity and gender.

In the context of the Bangladesh Liberation War, mass rapes were likewise committed “under orders” (excerpt from Nilima Ibrahim’s Ami Birangona Bolchhi). Women, girls as young as eight, and grandmothers up to seventy-five were sexually assaulted during the nine-month repression of 1971.

This article critically examines mass rape as an actus reus of the genocide committed by the Pakistani forces against Bengalis, while also attempting to surface ethnicity, race, religion, and gender from within that genocidal violence.

Prelude to the Ideation of Genocidal Rape

With respect to rape as a war crime, rape is expressly included within the definitions of crimes against humanity. Although rape is not explicitly listed as a grave breach or as a violation of the laws and customs of war in older instruments, it has been interpreted as such. In addition, rape may also constitute an act of genocide (Russell-Brown, p. 11).

The landmark ICTR case of Prosecutor v Jean-Paul Akayesu was the first international criminal judgment to define rape as an act of genocide. It held that rape and sexual violence were committed specifically against Tutsi women with intent to destroy the Tutsi group 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. It requires intent to destroy, in whole or in part, a national, ethnic, racial, or religious group through:

• killing members of the group

• causing serious bodily or mental harm

• deliberately inflicting destructive conditions of life

• imposing measures intended to prevent births

• forcibly transferring children

Rape is not explicitly listed. However, rape can fall within “serious bodily or mental harm” and therefore constitute a genocidal act (Russell-Brown, p. 12).

Pakistan acceded to the Genocide Convention on 12 October 1957. Accordingly, the genocidal acts committed against the people of East Pakistan in 1971 engage Pakistan’s responsibility under international law.

Surfacing Ethnicity, Race, and Religion

Establishing genocide requires dolus specialis—the specific intent to destroy a protected group. Mass rape does not become genocide simply because it occurs during genocide. The requisite intent must also be proven (Russell-Brown, p. 362).

Thus, the rapes committed in East Pakistan were genocidal not merely because they happened during the 1971 atrocities, but because there was alleged intent to destroy Bengalis by and through raping Bengali women.

Understanding this intent requires examining the political identities involved.

Bengalis as an ethnic group included both Muslims and Hindus, but were often treated as racially inferior by West Pakistani elites (Jahan, p. 296).

They were demeaned on linguistic, cultural, and religious grounds. Bengali, derived historically from Sanskrit and written in a similar script, was viewed as a “Hindu” language (Oldenburg, p. 724).

Likewise, Bengali Islam was often described by West Pakistani elites as impure or corrupted, associated with “Indianised” or “half converts,” rather than “true” Muslims (Mookherjee, p. 1581).

One alleged motive behind mass rape was the idea of improving Bengali genes and populating East Pakistan with a “purer” Pakistani stock (Mookherjee, p. 1582).

Rape therefore functioned as a tool of racial domination and forced assimilation. Women’s bodies became sites upon which racialised and religious ideologies were enacted.

Surfacing Gender and Essential Bengali-ness

There are numerous accounts of the harms suffered by women in 1971. Women were targeted specifically because they were women, demonstrating the centrality of gender to the violence.

Victims included Hindu and Muslim women alike—from widows to schoolgirls, from wives of officials to daughters of poor villagers and slum dwellers (Amita Malik, cited in Sharlach, p. 95).

Pakistani soldiers did not only rape women in the moment. Many were abducted and confined in barracks, tanks, and bunkers, often kept naked to prevent escape (Brownmiller, p. 169).

Some victims were murdered after rape, including through bayonet injuries; prepubescent girls who were cut and gang-raped often died from their wounds (Lisa Sharlach, p. 95).

These acts were gendered acts of domination by men against women. Ignoring that gendered premise would be both inaccurate and unjustifiable.

At the same time, Bengali women were viewed not merely as women, but as symbolic bearers of Bengali culture. Under Pakistan’s puritanical state ideology, Bengali women were associated with Hindu or Indianised customs.

Their dress and cultural practices came under scrutiny. The sari, widely worn by Bengali women, was reportedly described as vulgar or un-Islamic (D’Costa, p. 88–89). Wearing saris on state occasions was banned, and women’s participation in singing, dancing, and drama was similarly disapproved of (Kabee, cited in D’Costa).

Women thus became a category in themselves: embodiments of Bengali identity, culture, and perceived religious impurity.

Rape therefore operated not only as sexual violence, but as a means of exercising power over a group seen as representing essential Bengali-ness. The violated body testified to domination across multiple intersecting lines: culture, society, religion, and gender (Saikia, p. 113).

Conclusion

The price women paid for nation-making in Bangladesh was enormous.

The harms suffered were intersectional: women were targeted both as women and as Bengali women. In the context of the Bangladesh genocide, rape should therefore be recognised not only as a crime against humanity and grave breach of the laws and customs of war, but also as a possible actus reus of genocide.

It is neither morally defensible nor analytically useful to regard women merely as passive objects of genocide or as members of a group whose honour was attacked.

They must instead be understood as active subjects specifically targeted because of multiple, overlapping, and politically significant identities that international criminal law has yet to fully recognise.

It should be noted that women also participated in active combat during the liberation war. This article concerns only women who were victims of sexual violence committed by the Pakistani army and their local collaborators.

Psymhe Wadud teaches law at Bangladesh University of Professionals (BUP). She has worked as a consultant supporting the United Nations Office on Drugs and Crime in Bangladesh and the Maldives. She completed her undergraduate and postgraduate studies in law at the University of Dhaka and specialises in International and Comparative Law.