THE EVENTS IN EAST PAKISTAN, 1971
 


Preface
Part I:  Introduction
Part II: Outline of Events in East Pakistan
           1-25 March, 1971
           25-March-18 December, 1971
Part III: Legal Position under Pakistan Law
Part IV: Legal Position under International Penal Law
Part V: Right of Self-determination in International Law
Part VI: The Role of the United Nations
Part VII: The Role of India
Summary of Conclusions

Legal Position Under International Penal Law

 

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.


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