Symposium on Bangladesh Genocide and International Law: The Refugee Crisis in Context

Introduction

A number of international law concepts, including the crime of genocide, the right to self-determination, and humanitarian intervention, were put to a severe test during 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 the international crimes committed within the territory of East Pakistan (now Bangladesh) in 1971, a major issue was the mass influx of refugees from Bangladesh into India. During the campaign of terror by the Pakistan army against the Bengali civilian population, millions of persecuted Bengalis sought refuge in neighbouring countries.

India opened its border and sheltered the largest number of Bengali refugees in 50 camps, mostly in West Bengal, each equipped to accommodate 50,000 refugees and run by officials from the central government of India (Luthra, pp. 2467–2472).

Background of the Refugee Crisis in 1971

From March 1971 onwards, between 10,000 and 50,000 Bengalis sought refuge in India each day. By the middle of June 1971, there were approximately 5,330,000 Hindu refugees, 443,000 Muslims, and 150,000 people from other groups (Pakistani Division, Ministry of External Affairs, India, Refugee Statistics, cited in Bass, fn. 202, p. 255).

India later claimed that the total number of refugees was 9.89 million, of whom:

• 6.8 million stayed in official camps

• 3.1 million stayed with relatives or friends in India

(Mukherji, p. 365)

Another 50,000 people from the Hill Tracts of East Pakistan fled to Burma (now Myanmar).

The primary targets of the Pakistan Army in 1971 included Hindus, political leaders and supporters of the Awami League, Bengali intellectuals, and others who supported Bengali self-determination. Later evidence suggested that between 70 and 90 percent of the refugees were Hindus (Kabir, p. 84).

Thousands of people died while attempting to reach India (Lockerbie, p. 48). Houses abandoned by refugees were often looted, and refugees were robbed while travelling toward the border.

In the area of Baghachera, the Peace Committee—created by the Pakistan government on 10 April 1971 to assist military operations—reportedly collected:

“a toll from refugees of one rupee per person, five per bike and ten per bullock cart”

(Gerlach, fn. 7)

Groups of refugees were also attacked by Pakistani troops, particularly at river crossings. Observers in refugee camps found “many refugees with gunshot or bayonet wounds” (ibid, p. 138).

One example was the Chuknagar massacre. On 20 May 1971, an estimated 10,000 people, including children, gathered in Chuknagar in Khulna district hoping to flee to India, and were killed by Pakistani forces (source).

India’s Legal Positioning in the War

India bore the burden of sheltering nearly ten million Bengali refugees, but clearly stated that they would be repatriated once the war ended (The New York Times).

India did not wish to be formally bound by the international refugee treaty regime, and this stance reflected its voluntary exclusion from those treaty obligations (Datta, p. 60).

Nevertheless, India referred to them as refugees, sought international assistance, and pursued a political solution that would result in a friendly and non-aligned neighbour in the east (Kapoor, p. 187).

Those fleeing Bangladesh were registered under India’s Foreigners Act 1946. Their stay was considered temporary, and they were generally not permitted to work, though many did so in practice. Refugees had restricted movement and received food rations in camps upon registration (Gerlach, p. 136).

In 1966, India had accepted the principle of non-refoulement through the Bangkok Principles. The government committed not to send refugees back to certain persecution, while also resisting attempts by the international community to dismiss the crisis because India had not acceded to UN refugee treaties (Kapoor, p. 198).

Growing guerrilla activity was also linked to the continuing refugee influx into India (ICJ Report, p. 42).

India’s support for the Bengali insurgency expanded to include assistance to refugee camps. Prime Minister Indira Gandhi made a strategic decision to support Bangladesh’s war of independence, framing it in part as humanitarian intervention.

The refugee camps also became a source of recruits for the Mukti Bahini, the Bengali guerrilla force, and provided support for their dependants (Kapoor, p. 197).

India’s Ministry of Defence argued that defeat of the guerrilla movement would obstruct refugee return (ibid).

The 1972 International Commission of Jurists report also concluded that humanitarian concerns and the severe economic burden of refugees were central to India’s position.

The Role of the United Nations

By the end of April 1971, India’s Permanent Representative to the United Nations requested international assistance for refugee relief.

India proposed that the UN should:

• restore human rights in East Pakistan

• provide international refugee assistance

• encourage political normalisation in East Pakistan

• hold the East Pakistan government responsible for the refugee crisis

• keep the issue under continuous review through the Secretary-General

The issue was first raised in the Social Committee of ECOSOC in July. At the 51st Plenary Session of ECOSOC, UNHCR reported on the refugee crisis. The Council referred the report to the General Assembly without debate (ICJ Report, p. 82).

The Secretary-General later stated that the UN needed to take action regarding the situation in East Pakistan, though he did not propose specific measures to the General Assembly (ibid).

UN Secretary-General U Thant designated the United Nations High Commissioner for Refugees, Prince Sadruddin Aga Khan, as focal point for all UN agencies involved in refugee relief. UNHCR and other international organisations subsequently worked in Indian refugee camps to assist with basic necessities.

Bangladesh gained independence on 16 December 1971.

By 6 January 1972, approximately one million refugees had already returned to Bangladesh. By late January, between six and eight million had returned, and by late February over nine million. UN estimates indicated that around eight million had crossed back by mid-February (UNHCR).

Conclusion

Throughout the liberation war, India was overwhelmed by the responsibility of caring for millions of refugees in its camps. The Indian government therefore justified military support for the Mukti Bahini as a means of ending atrocities committed by Pakistan (Cheema, pp. 10 & 12).

India’s intervention remains debated in international law, as discussed by Gary J. Bass in The Indian Way of Humanitarian Intervention.

The role of the United Nations may be characterised as concerned but largely passive. While it assumed partial responsibility for refugee assistance, it failed to take decisive action to prevent the broader course of events that led to the crisis (EFSAS, p. 10).

There were various estimates of the total death toll in the 1971 war, but any calculation of wartime mortality must also include refugee deaths, as those deaths were direct consequences of the conflict itself (Rahim).