The
inaction of the United Nations Organisation in face of the East Pakistan
crisis has been widely commented upon. For some it is proof of the
impotence of the organisation. The simple answer to this is that the
United Nations cannot, by its nature, be more effective than the members
who comprise it. It provides a machinery through which the nations of
the world can act, if they have the will to do so.
The
events in East Pakistan could have been dealt with by the United Nations
either as gross violations of human rights, or as a threat to
international peace, or both.
Violations of Human Rights
The
earlier parts of this Study have shown that the events in East Pakistan
involved gross violations of human rights. These violations began in
March 1971 and continued until Pakistan's defeat in December, but the
United Nations did not take any action to prevent them. The
Secretary-General, on his own initiative, launched a humanitarian relief
programme. No United Nations organ would consider the
human rights violations in East Pakistan, in spite of appeals by India
and by Non-Governmental Organisations. When the Security Council was
finally seized of the question in December, it refused to consider the
origins of the situation but dealt only with the India-Pakistan
conflict.
What authority does the United Nations have to deal with gross
violations of human rights? What procedures and organs could have been
utilised to deal with the human rights violations in East Pakistan? To
what extent were these procedures and organs utilised? What implications
does the United Nations 'response to the East Pakistan situation have in
terms of the United Nations' adequacy to deal with future situations of
this kind? Are new procedures or organs desirable?
The
United Nations Charter establishes as one of the Organisation's basic
purposes 'promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as torace, sex,
language or religion' (Article I (3». In Article 56 'All Members pledge
themselves to take joint and separate action in cooperation with the
Organisation for the achievement' of these purposes.
On
the other hand, Article 2 (7) states that except for enforcement
measures by the Security Council' Nothing contained in the present
Charter shall authorise the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or
shall require the Members to submit such matters to settlement under the
present Charter. ..'. As a consequence of Article 2 (7), the United
Nations for many years has avoided dealing with violations of human
rights in specific states.
The
General Assembly, however, in Resolution 2144 (XXI) of October 26, 1966,
called upon the Economic-and Social Council and the Commission on Human
Rights 'to give urgent consideration to
ways and means of improving the capacity of the United Nations to put a
stop to violations of human rights wherever they may occur'. The
Commission on Human Rights in Resolution 8 (XXIII) of
March 16, 1967, invited the Sub-Commission on Prevention of
Discrimination and Protection of Minorities 'to bring to the attention
of the Commission any situation which it has reasonable cause to believe
reveals a consistent pattern of violations of human rights and
fundamental freedoms, in any country, including policies of racial
discrimination, segregation and apartheid, with particular reference to
colonial and other dependent territories'. The Commission also
authorised the Sub-Commission in making such a recommendation to prepare
a report 'containing information on violations of human rights and
fundamental freedoms from all available sources'. The Economic and
Social Council approved these decisions by the Commission in Resolution
1235 (XLII) of June 6, 1967.
In
addition, the Economic and Social Council in Resolution 1503 (XLVIII) of
May 27, 1970, established procedures for the review of communications
sent by individuals and groups alleging the violation of
human rights. The Sub-Commission, which will make the initial review of
the communications, in Resolution 1 (XXIV) of August 13, 1971,
established the rules of admissibility of communications. These
special procedures respecting the review of communications do not
derogate from the general authority of the Economic and Social Council,
the Commission and the Sub-Commission to study independently of these
procedures situations which reveal a consistent pattern of violations of
human rights on the basis of all available information.
The
United Nations has decided, by virtue of these resolutions, that
gross--violations of human rights are not exclusively within the
domestic jurisdiction of states and, therefore, Article 2 (7) does not
apply. Any of the organs responsible for promoting human rights - the
General Assembly, ECOSOC, the Commission on Human Rights, and the
Sub-Commission on the Prevention of Discrimination and Protection of
Minorities - had the authority and the duty to consider the reports of
human rights violations in East Pakistan.
Threat to International Peace
In
addition to the general exception to Article 2 (7), in cases revealing a
consistent pattern of violations of human rights there is a specific
exception in the closing words of Article 2 (7) : ' ...but this
principle shall not prejudice the application of enforcement measures
under Chapter VII. ' Chapter VII is entitled' Action with Respect to
Threats to the peace, Breaches of the Peace and Acts of Aggression' and
comprises Articles 39-51. Any action to be taken under Chapter VII must
be taken by or under the authority of the Security Council.
Possible Action by the Security Council
Pursuant to its primary responsibility under Article 24 for maintaining
international peace and security, the Security Council could have
investigated the crisis under Article 34 as 'a situation which might
lead to international friction or give rise to a dispute, in order to
determine whether the continuation of the. .. situation is likely to
endanger the maintenance of international peace and security '.
Equally, any member of the United Nations could have brought the
'situation' to the attention of the Security Council under Article 35,
or the Secretary-General could have done so under Article 99.
If
the Security Council had met to consider the situation, its first duty
under Article 39 would have been to determine whether there existed 'any
threat to the peace, breach of the peace or act of aggression' and is
so, determine what recommendations to make or what measures to take to
maintain or restore international peace or security.
The
Security Council did not, in fact, meet until after international
hostilities had broken out in December. Hindsight now establishes that
there was a threat to peace, but no great foresight was required in
order to recognise this threat at the time. Particularly was this so
after the Secretary-General's Note to the Security Council of July 20,
1971, in which he drew attention to three features of the situation
which previous experience had shown to present grave dangers to peace,
namely:
(1)
the violent emotions aroused by the persecution of religious or
linguistic groups;
(2) the conflict between the principle of territorial
integrity and seIf-determination of peoples; and
(3)
the long-standing tension between India and Pakistan.
In
his memorandum, the Secretary-General indicated the futility of treating
the relief aspects of the situation alone and implied that the Security
Council should undertake measures to prevent the outbreak of armed
conflict:
'In the light of the
information available to me, I have reluctantly come to the conclusion
that the time is past when the international community can continue to
stand by, watching the situation deteriorate and hoping that relief
programmes, humanitarian efforts and good intentions will be enough to
turn the tide of human misery and potential disaster. I am deeply
concerned about the possible consequences of the present situation, not
on/y in the humanitarian sense, but a/so as a potential threat to peace
and security and for its bearing on the future of the United Nations as
an effective instrument for international co-operation and action. It
seems to me that the present tragic situation, in which humanitarian,
economic and political problems are mixed in such a way as almost to
defy any distinction between them, presents a challenge to the United
Nations as a whole which must be met. Other situations of this kind may
well occur in the future. If the Organisation faces up to such a
situation now, it may be able to develop the new skill and the new
strength required to face future situations of this kind. ...The
United Nations, with its long experience in peace keeping and with its
varied resources for conciliation and persuasion, must, and should, now
play a more forthright role in attempting both to mitigate the human
tragedy which has a/ready taken place and to avert the further
deterioration of the situation.'1
It
is difficult to resist the conclusion that if the Security Council had
met before December 1971 to consider the situation they would have
determined that it constituted a threat to the peace. (As no
international violence had occurred, it could hardly have determined
that there was a 'breach of the peace' or an' act of aggression' pace
India's contention in a later debate in the Third Committee that the
flow of refugees across the border constituted a 'civilian invasion '.)
If
the Security Council had so determined it could, notwithstanding the
domestic nature of the dispute, have taken under Chapter VII either
non-military measures under Article 41 (including, severance of economic
relations, of communications, and of diplomatic relations) or 'such
action by air, sea, or land forces as may be 'necessary to maintain or
restore international peace and security'.
Any
such decision would, however, have required under Article 27 (3) an
affirmative vote of seven members including the concurring vote of the
permanent members. It was, of course, the impossibility of reaching
agreement among the permanent members which was responsible for the
inaction of the Security Council.
Even if agreement had been possible, it must be recognised that measures
of the kind envisaged under Articles 41 and 42 are not necessarily best
suited to achieving the objects which the situation called for, namely
the protection of the different sections of the population of East
Pakistan against gross violations of human rights, and the prevention of
outside interference in the internal dispute, without supporting or
favouring one side or the other to that dispute.
Before taking any action under Articles 41 and 42, the Security Council
may also under Article 40 'call upon the parties concerned to comply
with such provisional measures as it deems necessary or
desirable '. These could include such measures as sending a fact-finding
committee, or observer groups, or a peace-keeping force. As this Article
is in Chapter VII, such provisional measures could have
been taken without the consent of the Pakistan Government, but in
practice it is unlikely that any such force would be sent without the
consent of the government of the country concerned and, in a case of
this kind, of the leaders of the insurgent forces or liberation army.
The
Security Council could also, under Article 36, have recommended
'appropriate procedures and methods of adjustment' with a view to the
pacific settlement of the dispute or situation. The procedures and
methods which the Security Council could have recommended under this
Article would include procedures for negotiation or mediation as well as
the measures open to it under Article 40.
Possible Measures by the General Assembly
The
General Assembly has a general power under Article 10 to discuss any
matters within the scope of the Charter and, subject to Article 12, to
make recommendations to member states, to the Security Councilor both.
(Article 12 bars the General Assembly from making any recommendation
while the Security Council is exercising its functions in respect of the
dispute or the situation; as we have seen,
that limitation did not apply.)
There is also a similar power in respect of matters relating to
international peace and security under Article II (2).
Under Article 14 'the General Assembly may recommend measures for the
peaceful adjustment of any situation, regardless of origin, which it
deems likely to impair the general welfare or friendly relations among
nations, including situations resulting from a violation of the
provisions of the present Charter setting forth the Purposes and
Principles of the United Nations '.
These purposes and principles include (Article I (3)), 'to achieve
international cooperation. .. in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as
to race, sex, language or religion'.
It
may be noted in passing that the fact that Article 14 authorises the
General Assembly to act in this way indicates that a situation involving
a gross violation of human rights within a state should not be
considered one which is 'essentially' within the jurisdiction of the
state concerned, if it impairs the general welfare or friendly relations
among nations.
The
General Assembly could, therefore, have made recommendations either:
(1)
generally, under Article 10; or
(2) if they had determined that there was
a threat to international peace or security, under Article II; or
(3) if
they had determined that the violations of human rights occurring in
East Pakistan were likely to impair the general welfare or friendly
relations among nations, under Article 14.
The
actions which they could have recommended under these Articles would
include those open to the Security Council, such as a fact-finding
committee or observer groups or a peace-keeping force.
It
may be that the General Assembly could also have acted under Article 55,
which provides that:
'With a view to the
creation of conditions of stability and well-being which are necessary
for peaceful and friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, the
United Nations shall promote:
...(c) universal respect
for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.'
Under Article 56, 'all Members pledge themselves to take joint and
separate action in cooperation with the Organisation for the achievement
of the purposes set forth in Article 55 '.
Committee on the Elimination or Racial Discrimination
As
was seen in Part IV of this Study, many of the violations of human
rights committed both against Bengalis and Biharis appear to have fallen
within the terms of the International Convention on the Elimination of
All Forms of Racial Discrimination. A procedure is available for the
consideration of' communications' from individuals or groups claiming to
be victims of violations or from State Parties.
The
Convention provides for a Committee on the Elimination of Racial
Discrimination which consists of eighteen experts who serve in their
personal capacity. The Committee reviews reports submitted
every two years by the states parties to the Convention and may request
additional information from the states parties. Furthermore, the
Convention provides that 'if a State Party considers that another State
Party is not giving effect to the provisions of this Convention, it may
bring the matter to the attention of the Committee'. If the dispute
between the two states parties is not resolved, an ad hoc Conciliation
Commission may be established which will investigate the situation and
make 'such recommendations as it may think proper for the amicable
solution of the dispute'.
India and Pakistan are both states parties to the Convention. The
Committee on the Elimination of Racial Discrimination met twice between
the events of March 1971, and December 1971. The Committee considered a
report by the Government of Pakistan at its April session and decided
the report was inadequate and requested the government to submit
additional information. The Committee did not specify in what particular
areas the Pakistan report was deficient. Pakistan failed to submit the
supplementary report requested for the September session of the
Committee. The Committee did not make any mention of this omission in
its report to the General Assembly.
No
complaint was submitted to the Committee concerning the events in East
Pakistan. If any of the states parties had initiated such a complaint it
would have brought into being the Conciliation Commission which would
have investigated the facts fully and made recommendations, and this
Conciliation Commission would have been established even if Pakistan had
objected to its creation.
Opportunities for Discussion of the Situation in the United Nations
Apart from the power of any Member under Article 35 to bring the
situation to the attention of the Security Councilor the General
Assembly or the Committee on the Elimination of Racial Discrimination,
ample opportunities in fact arose for discussing it.
The
situation was first raised in the Social Committee of ECOSOC in July,
and at the 51st Plenary Session of ECOSOC the United Nations High
Commissioner for Refugees (UNHCR) reported on the refugee problem. The
Council decided to refer the report to the General Assembly without
debate.
On
August 16, 1971, a representative of the International Commission of
Jurists, speaking on their behalf and on behalf of 21 other
non-governmental organisations, requested the UN Sub-Commission on the
Prevention of Discrimination and Protection of Minorities to examine the
situation in East Pakistan and to make recommendations to the Commission
on Human Rights on measures to be taken to protect human rights and
fundamental freedoms in East Pakistan. After a short debate the matter
was closed without any conclusion being reached.
The
matter was also raised by India in September 1971, in the Special
Committee on Colonialism, but the Committee decided that since the
General Assembly had not classified East Pakistan as a colonial
territory, it was not authorised to discuss the situation.
In
the Introduction to his report to the General Assembly, the
Secretary-General stated his belief that the United Nations had to take
some action with regard to the situation in East Pakistan, but he did
not specifically suggest any action by the General Assembly.
Representatives of several countries mentioned the East Pakistan
situation in the general debate in the Assembly. The representative of
Guyana (The Hon. Shridath S. Ramphal) proclaimed that human rights were
not divisable and asked that it be acknowledged 'that gross violations
of human rights wherever they occur in the world are the legitimate
concern of the international community; that matters cease to be
essentially within the domestic jurisdiction of a state when they give
rise to humanitarian issues of such magnitude that the international
community must of necessity grapple with them.' The representative of
Sierra Leone suggested that an observer team be sent to East Pakistan.
The
Third Committee of the General Assembly, which handles the social,
cultural and human rights items, decided to consider the humanitarian
aspects of the East Pakistan situation. Although the Committee was not
supposed to discuss the political aspects, the debate inevitably dealt
with these aspects even if in an indirect manner.
The
representative of New Zealand, Ambassador John Scott, noted that:
'At the heart of the
problem was the desire of the people of East Pakistan for greater
control of their own affairs -a problem that could only be solved by
negotiations between the Government of Pakistan and those who had been
freely elected by the people of East Pakistan as their representatives.
If the flow of refugees was to be stopped and war avoided, it was
essential that such negotiations should begin; the United Nations and
other Governments might be able to help if they were called upon to do
so.'2
New
Zealand and the Netherlands submitted a draft resolution which included
both a paragraph on Pakistan's internal political situation and
India-Pakistan relations. The draft resolution appealed to Pakistan 'to
intensify its efforts to create conditions which would restore the
climate of confidence indispensable for the promotion of voluntary
repatriation' and appealed to India 'to continue to promote an
atmosphere of good-neighbourliness which would diminish tensions in the
area and encourage the refugees to return to their homes'.3 Even these
indirect suggestions were too strong for most states. Ambassador Abdulrahim Farah of Somalia' questioned the advisability 'of including
these paragraphs' since they were contro versial and might divert the
Committee's attention from the main objective, which was essentially
humanitarian.4
The
resolution finally adopted by the General Assembly (Resolution 2790
(XXVI), December 6, 1971) 'Urges all Member States in accordance with
the purposes and principles of the Charter of the United Nations to
intensify their efforts to bring about conditions necessary for the
speedy and voluntary repatriation of the refugees to their homes' and
notes that the return of the refugees 'requires a favourable climate
which all persons of goodwill should work to bring about in a spirit of
respect for the principles of the Charter of the United Nations'. The
wording of this Resolution illustrates the cautious and unrealistic
attitude in which most member states viewed the situation in East
Pakistan. The discussion in the Third Committee took place just a few
weeks before the outbreak of the India-Pakistan war, yet provisions on
the political factors were considered too 'controversial'. Ironically,
the General Assembly adopted the Resolution several days
after the full-scale war begun. Events had overtaken the decision by the
General Assembly.
Security Council and General Assembly Attempt to Stop the lndia-Pakistan
War
The Security Council finally became seized of the situation in the
Indian subcontinent on December 4, when nine members called for a
meeting on 'the deteriorating situation which has led to armed clashes
between India and Pakistan'. In the Security Council Ambassador Y. A.
Malik of the Soviet Union vetoed two draft resolutions calling for
immediate cease-fire and withdrawal of troops on the grounds that they
failed to stress the need for a political settlement in East Pakistan.
He criticised members of the Council for viewing the situation as a
purely India-Pakistan conflict. He insisted that the Council must
consider the origin of the conflict - the Pakistan army's use of
repression:
'It
is entirely clear that if the military administration of Pakistan had
not interrupted the talks with the lawful representatives of the
Pakistani people and had not carried out its mass repressions, the
Security Council and the world community would not have to be dealing
with consideration of the question of the domestic crisis in East
Pakistan and its international consequences.' 5He asserted that: 'Under
the Charter the Security Council unquestionably has the right to examine
the causes of the emergence of dangerous situations that, threaten
international peace and security. The Security Council likewise has the
right to call upon a State or States to take steps to eliminate the
causes involved and to adopt measures to prevent such cases from
aggravating the international situation and resulting in the threat of
direct military conflict.' 6After the Soviet vetoes, the Council
referred the matter to the General Assembly under the 'Uniting for
Peace' resolution.
On
December 7, the General Assembly promptly adopted by a vote of 104 in
favour, 11 against, with 10 abstentions, a resolution calling for an
immediate cease-fire and withdrawal of troops. The overwhelming vote
reflected the disapproving attitude by most states to the secession of
Bangladesh from Pakistan and India's armed intervention. Many of them
were no doubt anxious to discourage dissident minorities in their own
states from taking the same course. Certain states, however, criticised
the Security Council for not taking action earlier which might have
averted the crisis:
'From the very start, as
jar back as April of this year, there was an imminent threat to
international peace and security, justifying prompt action by the
Security Council. There could have been recourse to the various
alternative means contemplated in and provided for by Article 33 of the
Charter. Why, then, did the Security Council adopt the Nelson touch, and
avert its gaze from the clouds that were gathering over the eastern
portion of the subcontinent? It will be the historian's task to seek the
answer to that question, in order to save this Organisation from a
similar dereliction of duty in the future.' 7
' ...all of us together,
as Member States of the United Nations, also bear our share of
responsibility for insufficient engagement and commitment in defining
and ascertaining the real causes of the crisis, and for failing to take
effective measures to overcome them in time. Here I have especially in
mind the passive attitude and immobilism of the Security Council when it
received the memorandum of the Secretary-General of 20 July, in which
the Secretary-General pointed out that the developments in the Indian
subcontinent constituted a danger for peace in that area.' 8
The
United States on December 12 requested that the Security Council be
reconvened due to India 's 'defiance of world opinion' in not respecting
the General Assembly's call for cease-fire and withdrawal of troops.
Ambassador George H. Bush stated that Pakistan's use of force in March'
does not ... justify the actions of India in intervening militarily and
places' in jeopardy the territorial integrity and political independence
of its neighbour Pakistan'.9 The draft resolutions at the second series
of Council meetings on the whole showed greater attention to the need
for a political settlement between Pakistan and the elected leaders of
East Pakistan, but India's military success in Bangladesh made these
proposals academic. After the surrender of the Pakistan forces in
Bangladesh and a defacto cease-fire in both Pakistan and Bangladesh, the
Security Council adopted a resolution demanding strict observance of the
cease-fire and withdrawal of troops 'as soon as practicable'. The
Council did not insist on India withdrawing its troops from Bangladesh
immediately since it recognised its usefulness in protecting from
reprisal the persons who collaborated with the Pakistan Government.
The Lessons of East Pakistan for the United
Nations
The
inability of the United Nations to have any significant impact on the
events in East Pakistan suggests that the Organisation should reconsider
some of its basic attitudes towards situations of this kind. The most
serious omission of the United Nations was its failure to act upon the
authenticated reports of massive killings and other gross violations of
human rights committed by the Pakistan army in East Pakistan. The United
Nations had recognised in the abstract that respect for human rights is
an essential condition for the maintenance of international peace and
security. As recently as 1970 the General
Assembly declared that' universal respect for and 'full exercise of
human rights and fundamental freedoms and the elimination of the
violation of those rights are urgent and essential to the strengthening of
international security, and hence resolutely condemns all forms of
oppression, tyranny and discrimination, particularly racism and racial
discrimination, wherever they occur'.10It is submitted that the United
Nations should act upon this principle in particular situations where
governments are conducting massive violations of human rights against
their people. The Security
Council should be convened immediately to take measures which will
persuade the government concerned to discontinue the repression. The
Council will be more likely to be able to reduce tensions and create
conditions for a pacific settlement of the dispute before neighbouring
states have become involved. More speedy procedures are also needed for
investigating situations of this kind. On April 5, 1972, a
representative of the International Commission of Jurists urged the
United Nations Commission on Human Rights to seek the authority to be
able to hold emergency sessions to deal with urgent situations involving
the imminent threat of wilful destruction of human life on a massive
scale.
Footnotes:
1Italics added. UN document S/10410, pp. 2, 3-4.
2A/C.3/SR.1877, November 19, 1971, pp. 13-14.
3A/C.3/L.1885, November 18, 1971, paras. 3 and 4.
4A/C.3/SR.1879, November 22, 1971, p. 3.
5S/PV.1606, December 4,1971, p. 133-135.
6lbid., pp. 127 and 128-130.
7Italics added. Ambassador H. S. Amerasinghe (Ceylon), A/PV.2003,
December 7, 1971, p. 11.
8Ambassador L. Mojsov (Yugoslavia), ibid., p.
57.
9S/PV. 1611, December 12, 1971, p. 11.
10General Assembly Resolution 2734 (XXV), Declaration on the Strengthening
of International Security, December 16, 1970, para. 22.