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

The Role of India

 

The Rules of Good Neighbourliness

As the violence spread in East Pakistan the flood of refugees fleeing from that violence took on such vast proportions that it created a formidable problem for India. In face of this invasion of refugees, the Indian Government adopted a policy whose impact on events in East Pakistan was decisive. During a first phase, from the end of March to the end of November 1971, various measures were taken of direct or indirect assistance to the insurgents, including an increasingly active military assistance which finally led to frontier incidents and engagements between Indian and Pakistani troops. Then, on December 3, took place the Pakistani air attack on Indian air bases, and India 's retaliation in the form of a massive land attack which led to the surrender of the Pakistani forces in East Pakistan. By these acts, first of  assistance and later of armed intervention, did India contravene its international obligations ? Or did India have adequate legal motives to justify those acts?

It should be borne in mind that according to the terms of Article 2 of the Charter India, like Pakistan and all other Member States of the United Nations, was bound to settle its international disputes by peaceful means and to' refrain in its international relations from the threat or use of force against the territorial integrity or political independence-of ally State'. Moreover, in accordance with international customary law India's first duty was to maintain an attitude of neutrality and to refrain from inferfering in the hostilities which had broken out in the neighbouring State. Indeed, subject to other considerations which will be discussed later, the traditional rule of neutrality in respect of belligerents engaged in a civil war was applicable to India up to December 6, 1971, the date on which she recognised Bangladesh as an independent country.

We will consider first the legality of the assistance given by India to the insurgents who were fighting for an independent Bangladesh, and then the legality of India 's armed attack, resulting in the surrender of the Pakistani armed forces in East Pakistan.


Assistance to Insurgents

If India's actions had been limited to receiving and offering shelter to the Bangladesh leaders claiming to constitute a 'government in exile' granting them certain practical facilities such as the use of its radio services for broadcasts intended for Bangladesh, and even building up troop concentrations along its frontiers with Pakistan, they would not have offered very serious cause for protest on the part of Pakistan. The right of sanctuary for belligerents is recognised in customary law, and as to the radio broadcasts, the mass media of a neutral nation may be permitted to take whichever side in the controversy they may select. It may be that the radio programmes from India served to increase the flow of refugees, by increasing their fear of the Pakistan army, and by making it known that the Indian Government was prepared to allow them to cross the frontier and to provide for them in refugee camps. But none of these things involved an infringement of neutrality. As regards the concentration of troops along the frontiers, while this may be seen as the expression of an unfriendly and mistrustful attitude, it is nonetheless a current practice, even among states which are particularly careful to maintain an attitude of strict neutrality when civil war is raging in a neighbouring country.

More serious, however, from the point of view of international law, is the military assistance given by India to the Bangladesh insurgents. This assistance is not admitted by India, but there seems to be little doubt that the Bangladesh guerrilla forces, the Mukti Bahini, were able to recruit and train volunteers on Indian soil, and were given the necessary arms, ammunition and logistic support to enable them to mount operations from Indian territory. According to the principles of customary international law, India was under a duty to observe neutrality by refraining from providing either of the belligerents with any military supplies or allowing them to use her neutral territory for the transit of military forces or for the preparation or launching of military operations. It appears clear that these obligations under the customary laws of neutrality were not respected by India.

If the people of East Pakistan had been justified in international law in asserting their independence under the principle of self-determination, then by virtue of Article 2 of the United Nations Charter they would have been entitled to seek and to receive support in accordance with the aims and principles of the Charter, and India, like all other states, would have had a duty to 'promote the realisation of the right of self-determination' (U.N. Resolution 2625). We have already expressed the view, however, that it cannot be established that the principle of self-determination of peoples applied to this situation, and India's assistance to the insurgents cannot, therefore, be justified under this principle.

In any event, any such assistance in promoting a right of self-determination must be 'in accordance with the provisions of the Charter'. The Declaration on Principles of International Law approved in Resolution 2625 states (in the section dealing with the principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations) that 

'Every state has the duty to refrain from organising or encouraging the organisation of irregular forces or armed bands, including mercenaries, for incursion into the territory of another state.'

and that

'Every state has the duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another state or acquiescing in organised activities within its territory directed  towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.' (our italics)

On the face of it, certain of India 's actions fall within the terms of this condemnation, namely the provision of military supplies to the insurgents and the granting of facilities to recruit and train guerrilla forces on Indian soil. India's involvement appears to have gone further than this. There can be no doubt that India did take military action against Pakistan before the outbreak of open war. Apart from shelling across the frontier which had gone on for some time on both sides, each alleging it was done by way of retaliation, more serious operations occurred towards the end of November. As we have seen, the Indian army penetrated several miles into Pakistan territory with tank forces and indeed captured and brought back to India some Pakistan tanks. India's justification was that this action was directed to stopping the attacks being made and being prepared by Pakistan forces against Indian territory. It is always difficult to pass judgment on conflicting claims concerning frontier incidents, but it is hard to see how these attacks by India can be justified. These hostilities did, however, retain the character of frontier incidents up to December 3.

In these circumstances, what was the justification for the preventive attack, or 'pre-emptive strike' by the Pakistan air force against Indian air bases on December 3? The only justification for resorting to force expressly recognised by the United Nations Charter - and then only subject to certain conditions - is that referred to in Article 51, that is to say 'the inherent right of individuals or collective self-defence if an armed attack occurs against a Member of the United Nations'. Customary international law authorises military action in self-defence only where there exists a 'necessity of self-defence, instant, overwhelming, leaving no choice or means and no moment for deliberations'.1 Moreover, the response to the attack must be proportionate to the threat which the attack represents.

We find it difficult to see how the military action taken by India up to the date of the Pakistan air attack justified more than frontier reprisals of the kind which had been taking place on both sides for some time. It was natural that Pakistan should want to put a stop to the Mukti Bahini's Indian based guerilla operations, and the pursuit of guerillas on to Indian territory or attacks on training centres in India could no doubt have been justified upon this ground. But the Pakistan air raids on Indian air bases hundreds of miles away from the frontier with East Pakistan cannot be justified either on the basis of reprisals or as self-defence.

India's reaction to Pakistan's 'pre-emptive strike' was to treat it as an act of aggression, a casus belli, justifying India in sending her forces into the territory of Pakistan. Soon thereafter India recognised the Government of Bangladesh as an independent sovereign state and from then on India's justification for her action was that she was giving aid to this government in its war of liberation against Pakistan. And so the internal conflict between the two provinces of Pakistan became an international armed conflict of the conventional type.

While it is difficult to establish accurately the exact moment at which the Indian troops came into action, it seems that there was an interval of about two days between the Pakistani preventive attack and the Indian retaliation. A surprise attack of this type certainly offers sufficient justification for retaliation, and probably is sufficiently grave to constitute a casus belli. Various writers have speculated upon the motives underlying Pakistan's air attack against India and India's reply to it. It has been suggested that Pakistan intended to precipitate the war and thought she would be able to achieve military successes on the western front which would strengthen her hand in the negotiations she anticipated would result from a United Nations intervention. On the other hand it has been suggested that India seized upon the opportunity offered by the air attack to transform into a casus belli an event which was certainly serious but which might have been seen as an isolated 'incident' had she not preferred to magnify its importance and treat it as an 'aggression'.

It would be unwise to embark on a judgment of either party based on their supposed intentions. We restrict ourselves to the facts. In our view the circumstances, technically, justified a declaration of war and India's claim that she was acting in self-defence in accordance with Article 51 of the Charter of the United Nations was legally valid. It does not follow, however, that all of India's subsequent actions can be justified on grounds of self-defence.

As we have observed in relation to Pakistan's air attack, the doctrine of self-defence requires that the response to an attack should be proportionate to the threat which the attack represents. We find it difficult to accept that the scale of India's armed action was motivated solely by military considerations based on the need to protect her national frontiers and territory. India, of course, also argues that as from December 6, when she recognised the Government of Bangladesh, her action was justified as legitimate support for her new ally in its struggle for independence.

This is a dangerous doctrine, and would set at nought all the principles of international law enjoining neutrality on third-parties in a civil war situation. All that a neighbouring country would need to do would be to grant recognition to the rebel forces in order to justify her intervention in their support. It becomes necessary, therefore, to look further into the circumstances in order to determine what justification, if any, there was for India's full-scale invasion of Pakistani territory.


In the Name of Humanity

Neither the military operations, nor the political developments which followed, offer support for the allegation that India wanted to take advantage of the situation in order to settle its account with Pakistan and put an end to the dispute on the western frontier which had not been settled by armed conflict a few years earlier. But it is clear that India did intend to use military action to free Bangladesh and enable it to become a sovereign state independent of Pakistan. On what grounds, if any, can the resort to force for this purpose be justified in international law? The answer is complex and involves matters of international concern as well as India's own direct interests.

We have already rejected the proposition that India's actions can be justified in international law as support to a people who were asserting a right to self-determination.

We may also recall the 1950 treaty between India and Pakistan, by which the two contracting parties solemnly guaranteed for all citizens within their respective territories absolute equality regardless of religious distinctions, and security in respect of their lives, culture, property and personal dignity.2 This treaty is important because it gives India a direct interest in the way in which Pakistan treats its Hindu minority, and it means that Pakistan cannot claim that this is a question falling solely within its domestic jurisdiction. The treaty officially recognised the real character of the problem as an international, and not merely an internal, affair. There can hardly be any doubt that the large-scale and systematic discrimination and persecution of which the Hindus were victims from March to December  1971 constituted a violation by Pakistan both of its international treaty obligations and of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. One may, however, question whether these violations alone, if there had been no additional circumstances, would have constituted a sufficient justification for launching the war. Moreover, the religious question, important though it does not seem to have been the decisive factor in the crisis which finally led to war.

Closely linked with the preceding problem is that of the refugees, which again has both national and international aspects. No exact figures are known. India claimed that at the beginning of December 1971 the total number exceeded 10 million, and the judgment of most impartial observers appears to confirm that the number was of that order.

One can get some impression of the scale of this migration, or 'civil invasion' as Mrs. Indira Gandhi fairly called it, by comparing it with the total estimated number of refugees in the world. These were estimated in 1959 at about 15 million and in 1979 about 17.6 million, which would give an average annual increase of something less than 200,000.3 When one realises that the 'tidal wave' of refugees into India probably raised the world figure, in a little over six months, from 17.6 million to about 27.6 million and that only a single country was affected, one begins to understand what the impact on that country must have been. Quite apart from the social and political repercussions provoked by this flood of destitute humanity pouring into an area already over-populated, with large numbers living in great poverty, the sheer cost of harbouring the refugees until the end of December 1971 has been estimated at over 500 million dollars. About half of this was provided by international assistance, but there was no assurance that this level of international aid would continue, still less that it would increase.

It is probable that the effect on the Indian economy was such as to disrupt, possibly even to halt for several years, the normal economic development of the whole country. The World Bank estimated that if the refugees had remained on Indian soil for a further three months, the cost of that further period might have amounted to 700 million dollars. We find neither historical precedent nor juridical definition  applicable to this situation. It was not an 'armed attack' in the sense of the Charter, nor even a provocation on the part of Pakistan, nor a blockade - although it gravely threatened India's economy. It must be recognised that India's vital economic interests were at stake and that the in the creation of political conditions which would make it possible to repatriate the refugees. The United Nations, as we have seen, was doing nothing to bring about these conditions, and it is hard to see how they would have been achieved without the liberation of Bangladesh.

This problem of the refugees involved a further and far from negligible problem of a humanitarian nature. Indeed, it is in this realm of humanitarian law, in the widest sense of the term, that Pakistan was most vulnerable. In addition to the appalling brutalities which were continuing within East Pakistan, the   condition in which the refugees were forced to live, in spite Indian and international assistance, itself Involved a massive violation of human rights. One need only consider the physical conditions and the appalling death rate which actually resulted and that which might have resulted in the long term. Should India have allowed these mass deaths to continue? Within East Pakistan, the insecurity which had provoked the exodus had not diminished. Human rights were still violated on a major scale and the general and-systematic nature of the inhuman treatment inflicted on the Bangladesh population was evidence of a crime against humanity. Was this massacre to be allowed to continue?

This brings us to the traditional doctrine of humanitarian intervention which Sir Hersh Lauterpacht, in the last edition of Oppenheim's International Law4 defines as follows:

'... when a State renders itself guilty of cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible.'

And Professor Borchard5 defines more clearly the form that such intervention may take:

'When these human rights are habitually violated, one or more states may intervene in the name of the society of Nations and may take such measures as to substitute at least temporarily, if not permanently, its own sovereignty for that of the state thus controlled. Whatever the origin, therefore, of the rights of the individual, it seems assured that these essential rights rest upon the ultimate sanction of international law, and will be protected, in the last resort, by the most appropriate organ of the international community.'

Humanitarian intervention has been described by Professors McDougal and Reisman as 'a venerable institution of customary international law ...regarded as accepted law by most contemporary international lawyers'.6 It was accepted by both Grotius and Vattel, and it has been invoked many times since. Examples are the armed intervention by Great Britain, France and Russia against Turkey which led to the independence of the Greek nation in] 830, and the Syrian intervention by France in ]860 following the protocol of the Conference of Paris.

The unilateral use of this ancient and respected doctrine, which is the expression of a profound and innate sense of justice corresponding to the natural feelings and reactions of the average person, is nevertheless questionable from two points of view. First of all it may open the door to all sorts of abuses and risks and be used as a pretext for acts of aggression: The justification for it is liable to be subjective, whereas one would wish to see the reasons for a humanitarian intervention established objectively. Secondly, it is reasonable to suggest that as a result of the creation of the United States Organisation (and possibly of Regional Organisations such as the Council of Europe) there has been a transfer of authority and responsibility and that henceforth humanitarian intervention is a matter to be dealt with by

international bodies rather than individual nations. By virtue of Article 39 of the Charter it is in the first instance the responsibility of the Security Council to' determine the existence of any threat to the peace ...  and ... decide what measures shall be taken.' This means that it is for the Security Council to decide whether or not a collective humanitarian intervention is called for or, in certain cases, to authorise action on the part of an individual state, and the Member States are bound to accept this decision and to assist in its implementation. The General Assembly, for its part, may make recommendations in accordance with Article 55 of the Charter concerning the, universal respect for, and observance of, human rights and fundamental freedoms for all', and indeed Article 56 translates this general obligation into a specific duty for each of the Member States, who , pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement of (these) purposes '.

Some authorities have argued that the right of unilateral intervention has been completely supplanted by these procedures for collective humanitarian intervention under the United Nation.7 But what if violation of human rights on a massive scale are not even considered in the United Nations to see whether they constitute a 'threat to peace', and if international organisations offer no redress or hope of redress? Must everyone remain impassive in the face of acts which revolt the human conscience, paralysed by considerations which are primarily of a procedural nature or even - which is worse - by procedural obstruction? When it is clear that the international authorities cannot or will not discharge their responsibilities, it would seem logical to resort again to customary international law, to accept its rules and the validity of the doctrine of humanitarian intervention. At the same time, to avoid the obvious dangers implicit in this doctrine, it is suggested that, before unilateral humanitarian intervention by a single nation can be justified, the following requirements should be satisfied:

  1. The state against which measures are to be taken must have shown itself manifestly guilty in respect of its citizens of systematic cruelty and persecution to the point at which

    (a) their fundamental human rights are denied them, and
    (b) the conscience of mankind is shocked and finds that cruelty and persecution intolerable.
     

  2. The circumstances must be such that no practicable peaceful means of resolving the problem is available, such as negotiations with the state which is at fault, intermediation, or submission to a competent international organisation.
     

  3. The international community must have had the opportunity within the limits imposed by the circumstances:

    (a) to ascertain whether the conditions justifying humanitarian intervention do in fact exist, and

    (b) itself to solve the problem and change the situation by applying such measures as it may deem appropriate.
     

  4. If the international community does not avail itself of the opportunities offered and fails to act in order to prevent or put a stop to widespread violations of human rights which have been called to its attention, thereby leaving no choice but intervention, then a state or group of states will be justified in acting in the name of humanity provided that:

    (a) before resorting to force it will deliver a clear ultimatum or 'peremptory demand' to the state concerned insisting that positive actions be taken to ameliorate the situation;

    (b) it will resort to force only within the strict limits of what is absolutely necessary in order to prevent further violations of fundamental human rights;

    (c) it will submit reports on its actions to the competent international agency to enable the latter to know what is being done and to intervene if it sees fit to do so;

    (d) it will withdraw the troops involved in the intervention as soon as possible.

In our present world it is only in quite exceptional circumstances that unilateral action on the part of a state can be considered as legally justified on the basis of the doctrine of humanitarian intervention,

particularly if that action involves the use of force on a scale of some magnitude. Unilateral action is likely to be arbitrary and to lack the disinterested character which humanitarian intervention should possess. In the situation with which we are concerned, and on the basis of the rules we have laid down, India might be accused of not having pursued all possible peaceful means of solving the problem since she did not submit the matter to the Security Council - a step, we may add, which no Member State of the United Nations saw fit to take. Such a reproach may seem somewhat unrealistic, since it was plain to all that there was no prospect of the Members of the Council reaching an agreement capable of offering any possibility of an effective solution, and nothing could have been worse than a show of decision which would have paralysed action without providing a positive solution. In our view the circumstances were wholly exceptional; it was becoming more and more urgent to find a solution, both for humanitarian reasons and because the refugee burden which India was bearing had become intolerable, with no solution or even any hope of a solution in sight. Events having been allowed to reach this point, it is difficult to see what other choice India could have made. It must be emphasised that humanitarian intervention is not the ground of justification which India has herself put forward. As we have seen, India claims to have acted first in self-defence, and secondly in giving support to the new Government of Bangladesh which she recognised when the hostilities began. We have given our reasons for not accepting the validity of these claims. If India had wished to justify her action on the principle of humanitarian intervention she should have first made a 'peremptory demand' to Pakistan insisting that positive actions be taken to rectify the violations of human rights.8 As far as we are aware no such demand was made.In conclusion, therefore, we consider that India's armed intervention would have been justified if she had acted under the doctrine of humanitarian intervention, and further that India would have been entitled to act unilaterally under this doctrine in view of the growing and intolerable burden which the refugees were casting upon India and in view of the inability of international organisations to take any effective action to bring to an end the massive violations of human rights in East Pakistan which were causing the flow of refugees. We also consider that the degree of force used was no greater than was necessary in order to bring to an end these violations of human rights.
 


Footnotes:

129 British and Foreign State Papers 1129, 1138 (remarks of Mr. Webster, April 24, 1841).

2131 United Nations Treaty Series 3 (8 April, 1950).

3U.S. Committee for Refugees, World Refugee Reports 1969 and 1970.

4Oppenheim, L., 1962, International Law, 8th ed., Vol. I, p. 312 (ed. H. Lauterpacht).

5Borchard, 1922, Diplomatic Protection of Citizens Abroad, p. 14.

6International Lawyer, Vol. 3, No.2, p. 438.

7e.g. Jessup, Modern Law of Nations (1949), p. 170; Ganji, International Protection of Human Rights, 1962, Geneva, p. 44; Thomas & Thomas, The Dominican Republic Crisis 1965, Hammarskjold Forum, 1967, p. 20; the contrary view, namely that the right or unilateral humanitarian intervention remains unaffected, is stated by McDougal & Reisman, International Lawyer Vol. 3, No.2, p. 444.

8cf. Ganji, op. cit.. pp. 14, 15 and 38.


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