In this part of the study the events in East Pakistan from March 25 to
December 31, 1971, are examined under international penal law. This can
be considered independently of the issues raised in Parts III and V.
Whatever view is taken of the legality or otherwise of General Yahya
Khan's martial law regime, or of the right or otherwise of the people of
Bangladesh to self-determination, there was as from the time of the army
'crack-down' on March 25 a military conflict in East Pakistan. The
response of the Awami League leaders to the crack-down was to proclaim
the independence of Bangladesh, to set up a provisional government and
to call for the support of the people in a war of liberation. The
provisional government was formally declared on Pakistan soil but its
headquarters was based in Calcutta. As the claims of this provisional
government were not recognised by any power until after the outbreak of
the India-Pakistan war, the conflict was not until then of an
international character. Nevertheless, being an armed conflict, certain
duties were imposed on the parties to the conflict under international
penal law.
From the point of view of the Pakistan army, their operations were
designed to 'restore order' and uphold the authority of the state. Their
task was to capture and disarm the defecting East Bengali soldiers and
police, and the Awami League supporters and students who had obtained
arms to use against them. They suffered from the usual difficulties of
an army seeking to combat insurgents who are not in uniform and to whom
the great majority of the civilian population are sympathetic. In
fairness to the Pakistani army, it should be said that history has shown
that in such circumstances armies do tend, however wrongly, to make
indiscriminate attacks on the civilian population. Even so, the gravity
of the crimes committed by the Pakistani army and
their auxiliaries cannot be condoned on these grounds.
The atrocities which were committed, and be it said the atrocities
committed on both sides, involved the commission of many crimes under
the domestic law of Pakistan. The shooting of unarmed civilians, except
pursuant to the lawful judgment of a properly constituted court, is
murder. It is clear that murder, arson, rape, looting and many other
crimes both under the civil and military law of Pakistan were committed
on a vast scale. However, the legal position is here considered under
international rather than domestic penal law. We propose to consider it
under certain conventions to which Pakistan was a party, namely the
Geneva Conventions of 1949 and the Genocide Convention, 1948, and under
international customary law including the applicability of the concept
of crimes against humanity.
The International Bill or Human Rights
The question of specific offences under international penal law should
be considered against the background of those documents which are coming
to be known as the International Bill of Human Rights, as well as of the
International Convention on the Elimination of All Forms of Racial
Discrimination. While not themselves giving rise to any procedures
against individuals in international penal law, these documents enshrine
important principles of international law which are relevant when
considering the specific offences. The International Bill of Human
Rights comprises the Universal Declaration of Human Rights, the Covenant
on Economic, Social and Cultural Rights, the Covenant on Civil and
Political Rights and the Optional Protocol.1 While not in the
form of a convention, the Universal Declaration of Human Rights is now
widely regarded as forming part of international customary law, and
although the two Covenants and the Optional Protocol have not received
sufficient ratifications to bring them into force, the unanimous
enactment by the General Assembly in 1966 makes them powerfully
persuasive documents for interpreting the principles of human rights
provided for in the Charter and in the Universal Declaration. The
Declaration itself was proclaimed by the General Assembly as 'a common
standard of achievement for all peoples and all nations'.2
It goes without saying that many of the provisions of the Universal
Declaration of Human Rights were violated in the situation of hatred,
violence and destruction which prevailed in East Pakistan. Among the
articles breached during the period of hostilities, without going back
to the period preceding 25 March, one may mention Article 2,
guaranteeing equal rights; Article 3, guaranteeing the right to life,
liberty and security of the person; Article 5, prohibiting cruel,
inhuman or degrading treatment; Article 7, guaranteeing equal protection
against all discrimination; Article 9, prohibiting arbitrary arrest,
detention or exile; Article 17, guaranteeing protection against the
arbitrary deprivation of property; and Articles 18 and 19, guaranteeing
freedom of thought, religion and expression of opinion.
It is to be expected that in a civil war there will be some derogation
from the rights contained in the Universal Declaration. The limits of
such derogation are laid down in Article 4 of the International Covenant
on Civil and Political Rights, which provides that:
'In time of public
emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of
the situation, provided that such measures are not inconsistent with
their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language,
religion or social origin.'
It is specifically provided in this Article that no derogation may be
made under this provision from (inter alia) Article 6 (' No-one shall be
arbitrarily deprived of his life '), 7 (' No-one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment '), 16
(' Everyone shall have the right to recognition everywhere as a person
before the law ') and 18 (' Everyone shall have the right to freedom of
thought, conscience and religion').
Although the interpretation of the words 'the extent strictly required
by the exigencies of the situation' will always be relatively
subjective, the systematic destruction of life and property carried out
by the Pakistan army and auxiliary-forces may fairly be said to have
been out of all proportion to the professed aim of maintaining law and
order and establishing the authority of the Pakistan Government.
Moreover, the killing and arbitrary arrest, detention and torture of
members of the Awami League, of students and of Hindus, for no other
reason than that they belonged to these groups, were clear violations of
these principles.
Convention on the Elimination of Racial Discrimination
Another relevant document is the International Convention on the
Elimination of All Forms of Racial Discrimination, which Pakistan was
the third country in the world to ratify. Under Article 1, racial
discrimination is defined as
'...any distinction,
exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.'
Each State Party undertakes under Article 2 'to engage in no act or
practice of racial discrimination against persons, groups of persons or
institutions' and to ensure that all public authorities act in
accordance with this obligation. There is a procedure under Articles 11
and 14 of the Convention for the consideration by a Committee of
complaints ('communications') from State Parties or from individuals or
groups claiming to. be victims of a violation of the rights set forth in
the Convention. But the enforcement of the Convention by penal and civil
procedures is a duty imposed on the State Parties. Under Article 5, the
State Parties undertake to prohibit and to eliminate racial
discrimination in all its forms, 'notably in the enjoyment of ... he
right to security of person and protection by the State against violence
or bodily harm, whether inflicted by government officials or by any
individual, group or institution'. Under Article 6, State Parties
undertake to 'assure to everyone within their jurisdiction effective
protection and remedies through the competent national tribunals. ... as
well as the right to seek from such tribunals just and adequate
reparation or satisfaction for any damage suffered as a result of such
discrimination'.
The words 'race' and 'racial' do not have a precise scientific
signification. lndeed, a study made by UNESCO came to the conclusion
that biologically there was no such thing as 'race'.3 By
using the terms 'race, colour, descent, national and ethnic origin,' it
is clear that the Convention was intended to cover the whole spectrum of
group discrimination based on motivations of a racial nature in the
broadest sense in which the term is used. In this sense, discrimination
against the Bengalis as a group, with their historical, linguistic,
cultural, social and physical differences from the people of West
Pakistan, would seem to fall within the term racial discrimination.4
The Urdu-speaking non-Bengalis also constituted a distinct group,
and the very fact that were termed 'Biharis' indicates that they were
regarded as being of a different national or ethnic origin.
Discrimination against them as a group would, therefore, also fall
within the term racial discrimination.
Some of the actions of the Pakistan army and auxiliary forces appear to
have been directed against Bengalis simply because they were Bengalis.
How else are the 'slum clearances' in Dacca to be explained, in cases
where they were not directed against Hindus? If, as has been alleged,
university teachers and other intellectuals were killed simply because
they constituted a potential future leadership for Bengalis, that also
could be evidence of racial discrimination. The treatment of all Hindus
as 'enemies of the State' and therefore as qualifying for liquidation,
in that it appears to have been due to an association of Hindus with
India, would also seem to have been a case of discrimination based on
'descent, or national or ethnic origin'. Equally, the reprisal killing
of Biharis and burning of their houses by Bengalis would seem to have
been based upon similar motives of racial discrimination. It is true
that the great majority of Biharis were regarded as being the allies of
and collaborators with the hated West Pakistani 'enemy', but when the
killing and destruction of property was directed against Biharis as such
it is hard to resist the conclusion that it was a form of racial
discrimination.
The Geneva Conventions
The Geneva Conventions of 1949 proved a landmark in international law by
formulating categories of offences which are prohibited in armed
conflicts 'not of an international character '. The laws of war as
formulated in the Hague Convention applied only to international wars.
Article 3, which is common to all the Geneva Conventions must be
regarded as the basic text in this field. It has the advantage of being
accepted unquestionably as representing the minimum of humanitarian law.
It has been recognised almost universally, since virtually all countries
are Parties to the Convention.
This Article provides:
'In the case of armed
conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
(1) Persons taking no
active part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any other similar
criteria.
To this end, the
following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the abovementioned persons:
(a) violence to life and
person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(b) taking of hostages;
(c) outrages upon
personal dignity, in particular humiliating and degrading treatment;
(d) the passing of
sentences and the carrrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognised as indispensable by civilised peoples.
(2) The wounded and sick
shall be collected and cared for.'
During the drafting of this Article some states sought to restrict its
application to cases where the insurgent forces had attained a certain
level of stability and authority, such as having an organised military
force and an authority responsible for its acts, acting within a
determinate territory and having the means of respecting and ensuring
respect for the Convention. These amendments were not accepted and in
our view the opinion expressed in the Commentary of the International
Committee of the Red Cross that the scope of this article must be as
wide as possible is to be preferred. The obligation is absolute for each
of the parties and the reciprocity clause in the original draft was
deliberately dropped.5
While there was never any period when East Pakistan was free from
attacks by the insurgent forces, it is probably true to say that by May
1971 there were few if any areas which were in the control of the
insurgents. However, when the Mukti Bahini returned from being equipped
and trained in India, there were substantial areas, particularly rural
areas, which were under their control. Some of the insurgent commanders
set up forms of courts to administer rough justice to 'collaborators,'
but there were no regularly constituted courts as required by paragraph
(1) (d) of the Article. If the Article were to apply only on a basis of
mutuality, the insurgents would not be entitled to claim the benefit of
the article, at least in relation to paragraph (I) (d). As we have
shown, however, the Article is binding on both sides, irrespective of
the compliance or capacity to comply of the other party.
There is hardly a phrase of this Article which does not appear to have
been violated on a massive scale by the Pakistani army and auxiliary
forces throughout the period from 25 March to the surrender of the
Pakistani forces on 16 December. The evidence indicates that breaches of
these provisions also occurred, though on a lesser scale, in the
attacks made by some Bengali units against Biharis and other non-Bengali
civilians.
The massacre of unarmed civilians, the destruction of villages and parts
of towns, the rape of women, the torture and intimidation of prisoners,
the taking and killing of hostages, the frequent executions without
trial, the failure to tend the sick and wounded, all these, wherever
they occurred, and whether as acts of repression and intimidation or as
punitive measures or as reprisals were inexcusable crimes, and often
aggravated by an 'adverse distinction' founded on race or religion.
One of the weaknesses of the Geneva Conventions is that they contain no
provisions for sanctions in the case of breaches of Article 3. The
articles of the Convention which impose a duty to search out and bring
to justice persons who have committed' grave breaches' (e.g. Articles
146 and 147 of the Fourth Convention relative to the Protection of
Civilian Persons in Time of War) applies only to offences against
persons or property protected by the Conventions, and this does not
include victims of offences under Article 3. Nevertheless, the duties
imposed by Article 3 remain, and it is submitted that an international
court set up to try offenders under international penal law would have
jurisdiction to consider charges brought for breaches of the Article.
The provisions of the Conventions will also apply in respect of war
crimes committed during the period of the international war, i.e.
between 4 and 16 December.
Genocide Convention
Both sides have accused the other of the crime of 'genocide' and in view
of the scale of the killings this is hardly surprising. Genocide has
become a highly emotive term, often used by laymen to describe any large
scale massacre of civilians. To lawyers, however, the term has a more
precise connotation.
Article I and the relevant parts of Article II of the Genocide
Convention, 1948, read as follows:
'Article I. The
Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they
undertake to prevent and to punish.'
'Article II. In the
present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical,
racial or religious groups as such:
(a) Killing members of
the group;
(b) Causing serious
bodily or mental harm to members of the group;
(c) Deliberately
inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; ...
This Convention was ratified by Pakistan, and under Article V, Pakistan
undertook to enact the necessary legislation to give effect to the
provisions of the Convention under internal law and to provide effective
penalties for persons guilty of genocide. At the time of the hostilities
in 1971 Pakistan had not yet complied with this obligation and genocide
did not therefore constitute a crime under the domestic law of Pakistan.
However, as Article I declared genocide to be 'a crime under
international law, as soon as Pakistan ratified the Convention, genocide
became an international crime applicable to all persons within the
territory of Pakistan.6
Article III of the Convention provides that 'the following acts shall be
punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide ;
(e) Complicity in genocide.'
Under Article IV
'Persons committing
genocide or any of the other acts enumerated in Article III shall be
punished, whether they are constitutionally responsible rulers, public
officials or private individuals.'
Returning to the definition of genocide in Article II, it will be seen
that the essence of the offence lies in a particular intent, namely the
intent to destroy in whole or in part a national, ethnical, racial or
religious group as such. It is not, for example, enough to show that a
large number of persons belonging to a particular group were killed or
intended to be killed. It must be shown that they were to be killed 'as
such,' i.e. simply because they belonged to that group. Moreover, the
group must be a 'national, ethnic, racial or religious group '. To kill
members of a political group as such is not genocide.
Many people in Bangladesh no doubt feel that the whole of the military
action and repressive measures taken by the Pakistan army and their
auxiliary forces constituted genocide, aimed at destroying in whole or
in part the Bengali nation or people as a national, ethnic or racial
group. All that need be said is that there may be difficulties in
establishing this proposition in a court of law. To prevent a nation
from attaining political autonomy does not constitute genocide: the
intention must be to destroy in whole or in part the people as such. The
Bengali people number some 75 million. It can hardly be suggested that
the intention was to destroy the Bengali people. As to the destruction
of part of the Bengali people, there can be no doubt that very many
Bengalis were killed. We find it quite impossible to assess the total
numbers, and we cannot place great confidence in the various estimates
which have been made from time to time. However, it appears to be
indubitable that the killed are to be numbered in tens of thousands and
probably in hundreds of thousands. But this in itself is not sufficient
to establish that the intent was to kill them simply because they
belonged to the Bengali people as such.
After the initial holocaust of the army crack-down in Dacca, the
Pakistani authorities appear to have been pursuing in particular members
of three identifiable groups, namely members of the Awami League,
students and Hindus. Anyone who was identified as belonging to one of
these groups was liable to be shot at sight, or to be arrested and in
many cases severely ill-treated, or to have his home destroyed. The fact
that these groups were singled out for special attention itself
militates against the finding that the intent was to destroy in whole or
in part the Bengali people as such.
This does not mean, of course, that particular acts may not have
constituted genocide against part of the Bengali people. In any case
where large numbers were massacred and it can be shown that on the
particular occasion the intent was to kill Bengalis indiscriminately as
such, then a crime of genocide would be established. There would seem to
be a prima facie case to show that this was the intention on some
occasions, as for example during the indiscriminate killing of civilians
in the poorer quarters of Dacca during the 'crack-down'.
As far as the other three groups are concerned, namely members of the
Awami League, students and Hindus, only Hindus would seem to fall within
the definition of' a national, ethnical, racial or religious group'.
There is overwhelming evidence that Hindus were slaughtered and their
houses and villages destroyed simply because they were Hindus. The oft
repeated phrase 'Hindus are enemies of the state' as a justification for
the killing does not gainsay the intent to commit genocide; rather does
it confirm the intention. The Nazis regarded the Jews as enemies of the
state and killed them as such. In our view there is a strong prima facie
case that the crime of genocide was committed against the group
comprising the Hindu population of East Bengal.
It will be noted that under the provisions of Article IV,
'constitutionally responsible rulers, public officials or private
individuals' are liable to be punished for acts of genocide. Act of
State cannot provide a defence. What is less clear is whether and to
what extent the defence of 'superior orders' is available to a person
charged with genocide. An article in the original draft expressly
excluded this defence, but this article was rejected when the Convention
was finally approved. Many authorities consider, however, that principle
IV of the Nuremberg Principles is of general application. This provides
that 'the fact that a person acted pursuant to order of his Government
or of a superior does not relieve him from responsibility under
international law, provided a moral choice was in fact possible to him'.
The question of whether the killing of non-Bengalis by Bengalis involved
crimes of genocide involves difficult questions of law and fact in
determining whether the necessary intent existed. It is to be noted that
if these killings did constitute genocide, then it would seem that all
massacres pursuant to communal violence are to be regarded as genocide.
For our part, we find it difficult to accept that spontaneous and
frenzied mob violence against a particular section of the community from
whom the mob senses danger and hostility is to be regarded as possessing
the necessary element of conscious intent to constitute the crime of
genocide. Of course, the matter would be different if it could be shown
that particular defendants as leaders of the mob possessed that intent
and worked up the frenzy of the mob in order to achieve their purpose.
Customary Law: Crimes Against Humanity
The violations of human rights which occurred in East Pakistan are also
to be considered in international law from the point of view of
customary law. One of the most authoritative statements of the
principles of customary international law in the field of human rights
is found in the Nuremberg Principles.
The International Military Tribunal at Nuremberg was one of the first
tribunals to try the members of the government of a sovereign state for
violations of international law in its treatment of its own nationals.
The Charter of London, which was signed on August 8, 1946, by the
victorious powers of the U.S.A., the U.S.S.R., France and the U.K.,
defined war crimes and crimes against humanity and constituted an
International Military Tribunal to apply that law.7 In the
words of the Tribunal:
'The Charter is not an
arbitrary exercise of power on the part of the victorious nations, but.
.. it is the expression of international law existing at the time of
its creation; and to that extent is itself a contribution to
international law.'8
The principle that a sovereign is bound to a minimum standard of
humanity in his treatment of his citizens has its basis in customary
international law. The Preamble of the Hague Convention stated that in
cases not covered by the laws of war, the victims of war were
nonetheless protected by the principles of the law of nations 'derived
from the usages established among civilised peoples, from the laws of
humanity, and from the dictates of public conscience'. The doctrine of
humanitarian intervention allowed a state to intervene forcibly in
certain circumstances to prevent another state from treating its own
nationals in such a way as to 'shock the conscience of mankind'. The
United Nations Charter explicitly recognises what earlier writers on
international law accepted, that all people are entitled to respect for
certain fundamental human rights by all governments, including their
own.9
The Charter of London, as only a four-power treaty, might have
difficulty in itself in claiming to establish international law, but
after its inception nineteen other nations acceded to it, and it was
incorporated into the peace treaties signed with many of the axis
powers, thus bringing to quite a substantial number the nations which
formally agreed to its formulations. In 1950, the United Nations General
Assembly accepted as part of international law the Nuremberg Principles
as formulated by the International Law Commission at their request.10
Finally a number of international treaties such as the International
Covenants of Human Rights and the Genocide Convention, as well as the
Universal Declaration of Human Rights passed by the General Assembly in
1948, embody many of the principles of Nuremberg within their
provisions. Thus the principles of Nuremberg are today fully accepted as
a part of international customary law.
The Nuremberg Principles, as formulated by the International Law
Commission, define war crimes as:
'Violations of the laws
or customs of war which include, but are not limited to, murder,
ill-treatment or deportation to slave-labour or for any other purpose of
civilian population of or in occupied territory, murder or ill-treatment
of prisoners of war, or persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities,
towns, or villages, or devastation not justified by military necessity.'
Crimes against humanity
are defined as:
'Murder, extermination,
enslavement, deportation and other inhuman , acts done against any
civilian population, or persecutions on political, racial or religious
grounds, when such acts are done or such persecutions are carried on in
execution of or in connection with any crime against peace or any war
crime.'
A crime against peace is
defined as
(i) Planning,
preparation, initiation or waging of a war of aggression or a war in
violation of international treaties, agreements or assurances;
(ii) Participation in a
common plan or conspiracy for the accomplishment of any of the acts
mentioned under (i).'
The Nuremberg Principles were formulated in relation to an international
war situation and there has been much discussion as to how far they are
applicable under customary international law to an internal war
situation, i.e. to 'an armed conflict not of an international character
'.
As far as 'crimes against peace' are concerned, it is plain that the
definition relates only to the outbreak of an international war, and at
least up to December 3. 1971, no question arises of a 'crime against
peace' in East Pakistan.
The application of war crimes is less simple. The definition is in very
general terms and includes crimes committed against civilian populations
and property. Some writers take the view that the definition in terms of
violations of the laws of war or customs of war limits war crimes to
offences committed in international wars. In our view this restrictive
interpretation fails to recognise the very wide scope which the United
Nations plainly wanted to give to these principles, and they should be
considered equally applicable in an internal war situation. The adoption
of Article 3 of the Geneva Conventions itself shows that the
international laws of war extend to internal war situations and
accordingly 'war crimes' should, at the least, include breaches of
Article 3.
The notion of 'crimes against humanity' has undergone a similar
evolution. This is particularly well set out in the report of the United
Nations Working Group of Experts commissioned to study the question of
apartheid from the point of view of international penal law.11
The report prepared by the Rapporteur, Professor Felix Ermacora, is an
important document.
In the Nuremberg formulation, there is some overlapping between war
crimes and crimes against humanity, but crimes against an enemy civilian
population were in general intended to be covered by the term 'war
crimes' and crimes against a belligerent's own population by the term
'crimes against humanity'. The Nuremberg Principles, as stated, relate
crimes against humanity to crimes 'in execution of or in connection with
any crime against peace or any war crime.' There seems to be no reason
in principle why the concept of crimes against humanity in international
law should be confined to an international war, or indeed to a war
situation at all. This is certainly the view which has been taken in the
United Nations.
Since the United Nations have been dealing with the policy of apartheid,
various decisions have condemned the policy as being incompatible with
the principle of the charter of the U.N. and constituting a crime
against humanity'.12 During its 26th session the General
Assembly adopted a number of resolutions which are relevant to this
issue:
'(a) Resolution 2775 F
(XXVI), entitled 'Establishment of Bantustans,' contains the following
preambular paragraphs:
'Recalling its
resolutions 95 (I) of 11 December 1946, in which it affirmed the
principles of international law recognized by the Charter of the
International Military Tribunal, Nuremberg, and the judgment of the
Tribunal,
'Bearing in mind the
obligations of all States under international law, the Charter of the
United Nations, the human rights principles and the Geneva Conventions,
'Noting further that
under the aforementioned resolution crimes against humanity are
committed when enslavement, deportation and other inhuman acts are
enforced against any civilian population on political, racial or
religious grounds.'
(b) Resolution 2784 (XXVl),
entitled 'Elimination of all forms of racial discrimination" adopted on
6 December 1971, in paragraph 1 of section II 'Reaffirms that apartheid
is a crime against humanity'.
(c) Resolution 2786
(XXVI), entitled 'Draft convention on the suppression and punishment of
the crime of apartheid,' adopted on 6 December 1971, contains the
following preambular paragraph:
'Firmly convinced that
apartheid constitutes a total negation of the purposes and principles of
the Charter of the United Nations and is a crime against humanity'.'
Perhaps the most authoritative statement that' crimes against humanity'
are not limited to international war situations is contained in the
Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity which entered into force on 11
November 1970. Article I of the Convention provides:
'No statutory
lirnitation shall apply to the following crimes, irrespective of the
date of their commission:
'(a) War crimes as they
are defined in the Charter of the International Military Tribunal,
Nuremberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13
February 1946 and 95 (I) of 11 December 1946 of the General Assembly of
the United Nations, particularly the 'grave breaches' enumerated in the
Geneva Conventions of 12 August 1949 for the protection of war victims;
'(b) Crimes against
humanity whether committed in time of war or in time of peace as they
are defined in the Charter of the International Military Tribunal,
Nuremberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13
February 1946 and 95 (I) of 11 December 1946 of the General Assembly of
the United Nations, eviction by armed attack or occupation and inhuman
acts resulting from the policy of apartheid, and the crime of genocide
as defined in the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide, even if such acts do not constitute a violation
of the domestic law of the country in which they were committed.'
Pakistan voted for this Convention, and although she has not ratified it
so as to be bound by the restriction on periods of statutory limitation,
her vote in favour of it involves an acceptance of the principle that
crimes against humanity are not limited to international war situations.
If it be accepted that the concepts of war crimes and crimes against
humanity were applicable to the hostilities in Pakistan, there is
abundant evidence that war crimes were committed by the Pakistani army
and auxiliary forces and that many crimes against humanity were also
committed. It does not seem necessary to repeat here again the nature of
the systematic actions of the Pakistani army and auxiliary forces which
fall within the definition of war crimes and crimes against humanity.
A more difficult question is whether the reprisal attacks made by
Bengalis against non-Bengalis, in particular between 26 March and
mid-April, 1971, are also to be regarded as war crimes and/or as crimes
against humanity. The scale of the crimes was of a lesser magnitude, but
nevertheless was probably sufficient to qualify for consideration as
crimes against humanity. A crime against humanity requires a certain
magnitude of violence before it becomes the concern of the international
community in that it must surpass 'in magnitude or savagery any limits
of what is tolerable by modern civilisations'.13
As in the case of genocide, we doubt whether atrocities committed by
unorganised mobs in spontaneous outbursts should be considered as crimes
under international penal law. However, any individuals who knowingly
incited a mob to violence could be held guilty of a crime against
humanity.14 So also where the attacks were made by organised
forces.
Individual Responsibility
The remaining questions to be considered are those of individual
responsibility under international law for violations of human rights,
and where such responsibility exists, what proceedings fall to be taken
against those responsible and in what form.
We are not concerned with any political issues which may be involved in
deciding whether particular individuals should be prosecuted in
connection with the violations of human rights which have occurred. We
are concerned only to examine what in international law is the liability
of individuals to prosecution and what duty lies upon states who may
decide to prosecute them.
The question whether and the extent to which individual persons are
subject to international law is much disputed, but the one field in
which it is now clearly established that individual persons are bound by
international law is that of human rights. The Nuremberg Principles
explicitly state that' any person who commits an act which constitutes a
crime under international law is responsible therefor and liable to
punishment' (Principle I), that 'crimes against peace,' 'war crimes' and
'crimes against humanity' are 'punishable as crimes under international
law' (Principle VI), and that complicity in the commission of these
crimes is itself a crime under international law (Principle VII).
Moreover, ' the fact that a person who committed an act which
constitutes a crime under international law acted as Head of State or
responsible government official does not relieve him from responsibility
under international law' (Principle Ill), and 'the fact that a person
acted pursuant to order of his Government or of a superior does not
relieve him from responsibility under international law, provided a
moral choice was in fact possible to him' (Principle IV). Furthermore, '
the fact that internal law does not impose a penalty for an act which
constitutes a crime under internal law does not relieve the person who
committed the act from responsibility under international law'
(Principle II).
In our view these principles are declaratory of principles of general
application in international law, and apply in internal war situations
as much as in international wars. The effect of these principles is that
the individual officers and soldiers who carried out the 'kill and burn'
missions and other crimes under international law are liable to be
prosecuted and punished unless there was no moral choice open to them.
Those who ordered the commission of the crimes are liable to
prosecution. Equally, those who passed on the orders or who, knowing of
these crimes or the orders for them, failed to prevent their being
carried out when they had the opportunity to do so, are themselves
guilty of 'complicity' in the commission of the crimes.
Form of Tribunal
What form of tribunals should be established for the trial of persons
accused of these crimes? Clearly they may be tried under the domestic
criminal law either before the normal criminal courts or before special
tribunals established for the purpose. The persons charged have, of
course, the right to a fair trial on the facts and law (Nuremberg
Principles, Principle V). This should include the right to counsel of
their choice, who may be an advocate from another country. The law under
which they are to be tried must be law which was applicable at the time
when and at the place where the offences were committed.
Although the Government of Bangladesh is entitled to hold any such
trials under domestic law before domestic tribunals, it is suggested
that there are cogent reasons why it would be preferable if those
considered principally responsible for these offences were tried under
international law before an international tribunal. If, as has been
reported, senior Pakistani officers and officials are to be tried, it
would be easier to satisfy international opinion that they have received
a fair trial if the tribunal is international in character. In this
connection, it should be recalled that the International Military
Tribunal at Nuremberg was widely criticised for being composed
exclusively of judges from the victorious countries. It is suggested,
therefore, that it would be preferable if a majority of the judges were
from neutral countries. In a situation of this kind, one would prefer to
see an international tribunal constituted under the authority of the
United Nations to try those principally accused. In present
circumstances it is regrettably the fact that no such initiative is to
be expected, though the Prime Minister of Bangladesh has made clear that
his
Government would welcome such a tribunal. If an international tribunal
is to be constituted, it would have to be by the Bangladesh Government
itself. For this reason, and on the assumption that the procedure to be
adopted is likely to be the ordinary criminal law procedure of the
country (which is based on and follows the English common law
procedure), it seems reasonable that the Court should be presided over
by a Bangladesh judge.
Assuming that such a tribunal is established under Bangladesh law, there
would seem to be no reason why offences should not be charged both under
international law and under the domestic law of Bangladesh.
An
additional reason for preferring charges under international law arises
in relation to the crime of genocide. As we have seen above, it would
not be possible to charge persons with genocide under Bangladesh
domestic law without passing retrospective legislation but no such
difficulty would arise in relation to a charge preferred under
international law.15
Footnotes:
1cf. Human Rights: A Compilation of International
Instruments of the United Nations, A/CONF. 32/4 (1967), pp. 1-18.
2cf. Preamble to the Universal Declaration of Human
Rights, G. A. Res 217A (III), 10 Dec. 1948.
3cf. Lerner, The U.N. Convention on the Elimination of All
Forms of Racial Discrimination, 1970, pp. 41-42.
4cf. generally Coleman. Revue lIIternotionale des Droits
de l' Homme, 1969, pp. 622-623.
5Commentary on the Fourth Geneva Convention, I.C.R.C., 1958, Geneva,
pp.35-37.
6cf. Oppenheim: International Law: A Treatise, 8th Ed., Vol. I, p. 750
782
U.N.T.S. 279.
8Judgment
of the Nuremberg Tribunal, p. 216, quoted in Wright, The Law of the
Nuremberg Trial in International Criminal Law, Mueller & Wise, eds.
(1965).
9Wright,
supra, p. 264-265.
10Woetzel,
The Nuremberg Ttrial In International Law, 1962, p. 233.
11UN Document EICN. 411075, 15 February 1972.
12Ibid., p. 5.
13Opening
speech of Justice Jackson, Chief U.S. prosecutor at Nuremberg, cited in
Schwelb, Crimes against Humanity (1946), 23 B.Y.J.L. 178, 195.
14cf.
the case of Julius Streicher, convicted at Nuremberg of crimes against
humanity for inciting people through his newspaper, Der Sturmer, to
murder and extermination of Jews; Woetzel, supra, p. 10.
15
See p. 55 above.