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The 1971 Bangladesh Genocide: Need (?) for International Recognition


Jun 22, 2020

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“I have put my death-head formations in place with the command relentlessly and without compassion to send into death many women and children of Polish origin and language. Only thus we can gain the living space that we need. Who after all is today speaking about the destruction of the Armenians?”

 

- Adolf Hitler to chief commanders and commanding generals, 22 August 1939[1]

 

Introduction

That the world did not talk about the Armenian genocide for too long, at least for not before the Nazi atrocities and genocide committed during the 2nd world war was a strong reason that Hitler did not find himself constrained to resort to his aggressive policy of crimes against humanity. War crimes committed by Nazi Germany is a reminder of the fact that if crimes against humanity are not addressed adequately and effectively by the international community, such crimes do repeat, and what is even worse is that the newly committed crimes may be even more egregious.

Armed conflicts and wars have been recurring phenomena in human history. Theory of international law, until very recent times, recognized conquest as a valid and legitimate mode of acquisition of state territory.[2] Ipso facto, use of force was legitimate under international law prior to the establishment of the United Nations in 1945. Use of force often took the form of organized cruelty and violence. No matter how cruel and violent the conquests were, the conquerors were heralded as ‘national heroes’ and such conquests were considered as ‘triumph of patriotism’. The end justified the means, even if they were outrageously violent, cruel or inhuman. Nazi totalitarianism “ushered in a new age of extremes that made the violence of the past pale in comparison. It inspired the word “genocide”; a word that captured the transformation of the once unthinkable into historical reality. The challenge in our times is to consider whether this scourge is inevitable, or whether it can be prevented.”[3]

It is now a universally recognized fact that the 20th century Europe witnessed the most horrifying mass killings and extermination of groups of peoples under different denominations. The scale and extent of brutality of Nazi Germany were such that at the trial of Nazi leaders in Nuremberg, the French Prosecutor described it as a crime “undreamt of in history.” It fell to the Polish jurist Raphael Lemkin to name this nameless crime. Himself a victim of the holocaust, he coined the term ‘genocide’ to describe the collective destruction of groups on grounds of their identity.[4] The stage was all set for the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the UN General Assembly on 9 December, 1948. The fundamental objective of the Convention was to establish the truth- ‘nunca mas’- ‘never again’, meaning that such crimes would not be repeated in human history! But the vow to ‘never again’ allow such horrors to happen soon became an empty mantra as millions more became the targets of genocide, mass killings, brutalities and victims of tyranny. [5]The 1971 Bangladesh genocide was one of the many such crimes committed after the high sounding pledge of ‘nunca mas’!

 

The 1971 Bangladesh Genocide

The crime of genocide is the most serious international crime. Bangladesh experienced genocidal carnages engineered and executed to further the political ideology of Pakistan and pro-Pakistani political parties in 1971.[6] At birth, Bangladesh as a respectable member of the international community and as a state pledge bound to uphold the letters and spirit of international law could not remain indifferent to genocide committed by the Pakistani military forces and their collaborators in yet to be liberated Bangladesh. The just born Republic enacted the International Crimes Tribunal Act in 1973 to prosecute and punish those accused of committing various international crimes including genocide. The Act defines genocide as those acts that are committed against a national, ethnic, racial, religious, or political group with an intent to destroy wholly or partially by

  • Killing the members of the group;
  • Causing serious bodily or mental harm to the members of the group;
  • Deliberately inflicting the conditions of life that would physically destroy the group in whole or in part;
  • Imposing measures preventing births within the group; and
  • Forcibly transferring children from the group to another group.[7]

Legal scholars may find it interesting to note that this definition and legal elements of the crime of genocide are by and large similar to that of genocide under Article 2 of the Genocide Convention 1948 and Article 6 of the ICC Statute 1998.[8] In some respects, the Bangladesh definition is an improvement over the Convention definition. Prof. Islam aptly mentions that “given the enlargement of the ambit of the definition of genocide, the inclusion of ‘political group’ in the definition of genocide in the 1973 Act bears contextual merit and does not appear to be inconsistent with international law prohibiting genocide in all its forms and manifestations.”[9] The Convention defines genocide as the committing, with the intention to destroy in whole or in part a national, ethnic, racial or religious group, of any one of the five acts mentioned above in the ICT Act, 1973. This definition reflects contemporary preoccupation with genocidal Nazi policy towards the Jews as revealed at Nuremberg: it is wide enough to cover ethnic cleansing and religious pogroms. While the Nazi genocide was targeted primarily against the jews (religious group), Bangladesh genocide committed by the Pakistan junta was pointed against Bengalis as an ethnic group, Hindus as a religious group and members and sympathizers of the Awami League as a political group. Annihilation of the Awami League was a policy priority during the nine months occupation of Bangladesh by the Pakistani military junta. It is, therefore only logical that the 1973 Act definition of ‘genocide’ extends the ambit of application by including ‘political group.’

It is worth mentioning that the Bangladesh position with regard to prosecuting the crime of genocide or other ‘international crimes’ is posited with subsequent developments of international criminal law as reflected in the Statute of the International Criminal Court, otherwise known as the Rome Statute. The principle of complementarity is of cardinal importance for the Rome Statute. According to this principle, the ICC can only assert jurisdiction over a crime when it has been established that the State who has jurisdiction is either unwilling or unable to investigate and prosecute the alleged crime.[10] Having an age old complete and functional judiciary and being the place of occurrences of the crimes of genocide, with the victims of genocidal crimes on its territory, as well as with a number of perpetrators and accomplices of the crimes located within the jurisdiction of the country, it is incomprehensible why Bangladesh would opt not to prosecute the crime? Bangladesh was never incapable to prosecute the cries of 1971, though for in interim period (1975-1996) the State did not express its political willingness to prosecute the crimes of 1971. Fortunately for the rule of law and upholding of justice, the situation changed drastically favorably by 2010.

 

The 1948 Genocide Convention

The first liberation of crimes against humanity from any temporal connection with a declared war came in the form of the 1948 Genocide Convention. Article 1 simply states that ‘genocide, whether committed in time of peace or time of war, is a crime under international law’. This treaty has been ratified by so many states that it can now be considered a rule of modern customary international law, binding on all states (whether they have ratified the convention or not) and requiring them to prosecute acts of genocide. As the ICJ explained in its decisions in the Reservations to the Convention on Genocide case, “The origins of the Convention show that it was the intention of the UN to condemn and punish genocide as “a crime under international law”…involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the UN.”[11]

 

The Nuremberg Legacy

The importance of the Genocide Convention is that it obligates states to take action to stop any outbreak of the crime and envisages an international initiative to try the criminals. The Convention was put to test, for the first time in the trial of the German war criminals in Nuremberg, what today is dubbed by many jurists as the “Nuremberg Legacy”.[12] In the words of Geoffrey Robertson, “The Nuremberg legacy, distilled from the work and words of Justice Robert Jackson, may be simply stated: crimes against humanity will only be deterred when their would-be perpetrators- be they political leaders, field commanders or soldiers and policemen – are given pause by the prospect that they will henceforth have no hiding place, that legal nemesis may someday, somewhere, overtake them.”[13] That prospect is only realistic if there exists an international criminal court cognizant of their offence, or, in its absence, a rule permitting their punishment by courts of countries into whose jurisdiction they may come or per chance be brought. It is this practical consideration which makes universal jurisdiction the most important attribute of a crime against humanity: it is an offence so serious that any court anywhere is empowered by international law to try it and punish it, irrespective of its place of commission or the nationality of the offender or the victims. Jurisdiction arises, in other words, wherever an offender is found, and it arises because he is alleged to have offended in a particularly outrageous way.

There is no doubt that universal jurisdiction is recognized in customary international law as the basis for proceedings in domestic courts. “Universal jurisdiction arises not because they are crimes against humanity, but because they are crimes simpliciter, under any domestic law, which might otherwise go unpunished. As the Permanent Court of International Justice explained in the Lotus Case:

“It is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which is not the right or duty of any nation to police, he is denied the protection of the flag which may carry and is treated as an outlaw – as the enemy of mankind – hostis humanis generis – whom any nation may in the interest of all capture and punish.”[14]

The crime “against humanity normally occurs in a country where there is jurisdiction, albeit one which (because of the power of the state-backed perpetrator or because of the absence of political will of the state itself) will not be exercised, and the issue arises years, perhaps decades, later, when the perpetrator is found (or brought) within the jurisdiction of a nation with the exceptional resolve to bring a prosecution.”[15] Prosecution may be possible even in and by the state where the crime was committed because of a fundamental change in the power politics and the government in power demonstrates strong determination to prosecute the offenders. The trial of the war criminals in Bangladesh is a glaring example of such a situation.

It is to be noted that the crimes committed in Bangladesh during its liberation war in 1971 by the Pakistani forces ‘do not simply fall within the scope of (any) municipal law but are subject to an international criminal order to which the notions of frontiers and extradition rules arising therefrom are completely foreign’.[16]

This, probably, is the best statement of the Nuremberg legacy. Article 6 (c) of the Charter defined a class of crime which is so particularly horrific that the very fact that educated, rational and otherwise respected rulers of men were capable of conceiving and committing it must diminish whatever value there is in being human. The judgment in Nuremberg gave this particular crime a special status in international law, as imposing an erga omnes obligation on every state to assist in its trial and punishment. This power to bring alleged perpetrators to justice is described by the phrase ‘universal jurisdiction’: states have the power, individually or collectively, to conduct a trial even if they have no link with the place where the crime was committed, or with its perpetrator or its victims. “Jurisdiction over ordinary crime depends on a link, usually territorial, between the state of trial and the crime itself, but in the case of crimes against humanity that link may be found in the simple fact that we are all human beings.”[17] Therefore, in addition to domestic court or tribunal, an international tribunal, a court without a country, may be empowered to punish, as may the courts of any other country which gets its hand on an accused. Moreover, the Genocide Convention requires trial and punishment for this most heinous of all crimes, if not by the ‘competent national court’ then by an international penal tribunal. The adoption of the Rome Statute establishing the International Criminal Court (ICC) has taken care of this part of the international legal obligation.

 

Multifaceted Dimensions of Bangladesh Genocide

In the Bangladesh liberation war, the Pakistani occupation army created its local auxiliary para-militia forces and political collaborators from the ultra-religious and pro-Pakistan political parties.[18] With their local knowledge, these auxiliary forces were invaluable in mercilessly perpetrating international crimes and human rights violations of horrendous magnitude. The indiscriminate killing of innocent and unarmed civilians with the planned and deliberately pursued intention of exterminating the Bengali population had the hallmark of genocide. Widespread atrocities, tortures, inhuman, humiliating, degrading, and cruel treatment, hostage- taking, forced disappearances, executions without trials, and systematic rape and sexual violence continued unabated with all elements of crimes against humanity. Massive destruction of houses, villages, towns, and public utilities were perpetrated as reprisals and collective punishment for the pro-independence civilians apparently amounted to war crimes.[19] In desperation, the local perpetrators and collaborators secretly picked up, tortured, and brutally killed some pro-independence top intellectuals and professionals on December 14, 1971, just two days prior to the full physical liberation of Bangladesh in a bid to deprive the nation of its leading and talented citizens.[20]

Violent gendered crimes, such as rape, gang rape, sexual captivity and slavery, forced pregnancy and war babies, sexual assault, invasive body search, and other similar acts of sexual terrorism were committed against the Bengali women and girls by Pakistani soldiers and their allies during the Bangladesh war of independence in 1971.[21] Genocidal rape committed by the Pakistani occupation army and its allies in 1971 may be epitomized in the statement of a Pakistani army officer as he was surrendering arms on December 16, 1971. Even at the moment of utmost disgrace of capitulation he boasted, “Hum jarahe hain lekin beej chhor kar jarahe hain”- (‘we are leaving but not without leaving our seeds’).[22]

The systematic and pervasive nature of sexual crimes was not random or opportunistic but part of a conscious and deliberate policy of Pakistan to severe the victims’ familial importance through rape. This policy was designed to be the ultimate victory, the conquest of the very essence of the entire Bengali community. These most egregiously orchestrated crimes were purported to be seen, heard, watched, and told as a war instrument of power to shatter the Bengali society, dilute their racial identity, and destroy their nationalism to achieve contemptuous subordination and ethnic cleansing.[23]

The above atrocity crimes as collective punishment were committed on a vast scale and intensity in serious violations of the Genocide Convention, 1948, the Geneva Conventions 1949, and international criminal, human rights, and humanitarian laws.[24] In its 1972 study entitled ‘Commission of Enquiry into the Events in East Pakistan in 1971’, International Commission of Jurists (ICJ) found the rampant commission of these crimes and recommended the formation of an international tribunal by Bangladesh to prosecute these crimes and punish their perpetrators.[25]

International Recognition of Bangladesh Genocide

Not only that the international community failed to translate into reality the suggestion made by the ICJ in 1972, but still seems to be reluctant to recognize the fact of 1971 Bangladesh genocide. Even without such recognition, Bangladesh has lived up to its international legal obligations to prosecute those accused of committing heinous crimes against humanity, and particularly committing the crime of genocide in Bangladesh in 1971.

That genocidal crimes were committed in Bangladesh in 1971 have been proved beyond all reasonable doubts in the trials before the International Crimes Tribunals (ICT-1 and ICT-2). Of the total 41 ICT judgments as of May, 2020, the prosecution brought 38 specific and direct genocide charges in 10 cases and succeeded in proving 27 charges.[26] Facts of all these cases demonstrate that the indiscriminate extermination of the distinct national groups of civilian population, particularly the Hindus as a religious group and pro-independence people as a political group has been the deliberate policy of the Pakistan occupation army and its local para-militia forces and collaborators throughout the territory of Bangladesh during its liberation war. The physical commission of these acts has been established through the tangible evidence as a matter of fact.[27] For example, in Akmal and others case, the ICT-1 emphatically concluded:

[T]hat intent of launching attack was thus to cause group conditions of life Of Hindu community of village Pachgaon which was calculated to bring about its physical destruction in whole or in part, by causing indiscriminate killing, looting households, burning down houses and by committing sexual violence extending immense terror which compelled the survivors to internal displacement … constituting the offence of ‘genocide’.[28]

Wartime rape and sexual violence are universally recognized as the constituent elements of crimes against humanity, war crimes and genocide. The prohibition of wartime rape and sexual violence, particularly genocidal rape, during the Bangladesh liberation war and the systemic governmental apparatus supporting the use of such criminal acts as weapons of war represent a jus cogens norm recognized long before the Genocide and Geneva Conventions.[29]

Thus, the preceding paragraphs show that genocide was committed in Bangladesh during its Liberation war in 1971, and the long lasting trials of the perpetrators (not all obviously) and consequential judgments in the ICT-1 and ICT-2 have unleashed the horrendous nature of the genocidal acts. However, it is very seldom, if at all, the 1971 Bangladesh genocide is recognized in countries that matter most in contemporary world politics. This unfortunately, shields the main perpetrators, predominantly of Pakistani nationality, from any prosecution. These perpetrators have all along been within the territorial and criminal jurisdiction of Pakistan, but Pakistan never showed any interest in prosecuting them because the country has away been vehemently denying incidences of genocide committed by its forces during their occupation of Bangladesh (the then East Pakistan)in 1971. The power mongering ruling elites, it is believed, were also afraid of a political backlash in the event of any such trial. One could pose the question why Bangladesh as the victim-country did not proceed to prosecute the Pakistani perpetrators? Though such a trial in absentia is a theoretical possibility, it may be so that Bangladesh never felt comfortable with this idea because of geo-political reasons, especially owing to the fact that two world powers, the USA and China have been close allies of Pakistan during the liberation war in Bangladesh in 1971 and for obvious reasons they were not interested in such a trial. However, international recognition of Bangladesh genocide in 1971 could be a significant factor to shift the position of these two countries and thus pave a way to ensure accountability of the perpetrators. It is suggested that such recognition[30] by the significant actors of modern politics is crucial for a number of reasons:

  1. Universal jurisdiction with respect to international crimes (read genocide) creates an international obligation of states to prosecute such crimes. But, in the absence of such recognition, it becomes quite easy for a state to avoid such liability.
  2. It is one of the fundamental postulates of criminal jurisprudence that crimes must not go unpunished and criminals, whatever might be their nationality or wherever they might be resident, must not stand in the way of bringing them to book. However, without international recognition of the 1971 genocide in Bangladesh the horrendous criminals continue living in a safe and comfort zone. This is antithesis to the law of the civilized nations.
  3. Justice for the victims of genocide (not merely the close family members, near and dear ones, but all the members of the international community) demands that due punishment be inflicted on the perpetrators. This is not only a question of law but also a question of international morality.
  4. The Genocide Convention, from the moment of its adoption, was hailed as a triumph for international law. But the vow to ‘nunca mas’- ‘never again’- allow such horrors to happen soon became an empty mantra as millions more became the targets of genocide in various corners of the globe.[31] Bangladesh genocide in 1971 is only one of many such horrendous experiences. It is argued that non-recognition of the 1971 genocide and genocide elsewhere is the breeding reason of genocidal acts. No ideological or political considerations should stand in the way of recognizing such harmful acts.
  5. “The challenge before the international community today is to move from a culture of reaction to a culture of prevention. By the time that atrocities become worthy of headline news, it is usually too late. At this stage in the progression of violence, the options become increasingly limited. Absent pressing interests by powerful nations, there is no willingness for military intervention, and a sense of urgency by a distraught public is soon reduced to compassion fatigue.”[32]The time to act is before tensions escalate into genocidal violence. Motivation to act is evidently absent when past genocides are not recognized- apprehension being that the instant one would also not be recognized and soon forgotten! If the goal is prevention, then the individual “liability model” of responsibility is inadequate, and needs to be buttressed by a notion of “political responsibility” for the structural dysfunctions that produce politically organized crimes such as genocide.[33]
  6. “Lasting peace requires justice. This was the decision taken in Rome by 120 states.”[34] But if most heinous crimes like genocide are not prosecuted, justice remains merely a high sounding ideal, bereft of life and essence. Recognition of the crime is a precondition to prosecution of the crime.
  7. It is an accepted truth that “there can be no political compromise on legality and accountability”.[35] This is more so in case of crimes like genocide. Perpetrators of Pakistani origin must be brought to accountability and justice. This is not going to happen without international recognition.
  8. Recognition of the 1971 genocide is significant for the Pakistani perpetrators themselves. Various psychiatric studies reveal that denial of crimes committed may provide temporary protection and relief, but in the long run the crimes committed continue haunting the perpetrators and leave them psychologically traumatized and paralyzed. Culture of denial prolongs the already unbearable mental sufferings and agony of the perpetrators and ultimate relief lies in prosecution of the crimes. Albeit in a slightly different context identical results were found in post-apartheid South Africa. Nobel laureate Desmond Tutu writes: “Unearthing the truth was necessary not only for the victims to heal, but for the perpetrators as well. Guilt, even unacknowledged guilt, has a negative effect on the guilty. One day it will come out in some form or another. We must be radical. We must go to the root, remorse that which is festering, cleanse and cauterize, and then a new beginning is possible.”[36] Desmond Tutu then cautions- “Those who forget the past, as many studies have pointed out, are doomed to repeat it.”[37]
  9. Recognition of 1971 genocide and prosecution and punishment of the main perpetrators is also essential for reconciliation of the members of their (perpetrators’) immediate families and offspring. In the absence of this, they will be destined to live a life in immense indignity, with fingers pointed to them at all times. Why should they bear this burden, humiliation and indignity when they had no part/role in the commission of the horrendous crimes of genocide in 1971 – when even many of them were not born?
  10. Recognition, prosecution and punishment of genocide in 1971 is not an issue of revenge – it is more a question of moral strength and efficacy as well as legitimacy of international legal order.

Conclusion

There is no denying the fact that the victim state, in this case the People’s Republic of Bangladesh also bears definite responsibility in soliciting recognition of the 1971 genocide. However, it is travesty of history that the unfortunate assassination of the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman on August 15, 1975 by a group of pro-Pakistani armed forces created such an environment and political culture in the country that not only demand for recognition of the 1971 genocide became a far cry, but even the perpetrators of genocidal acts ceased to be mentioned by country of nationality and were referred to as merely ‘invading forces’! Such a mockery with historical truths and facts continued till 1996 when government was formed by Awami League, the political party that gave leadership during the liberation war. All governments during this period (1975-1996), especially the Bangladesh Nationalist Party (BNP) government took a very hard line against those demanding prosecution of war crimes and even filed sedition charges against organizers and participants of pro-trial movements.[38]

The succeeding Awami League government of 1996 led by the present Prime Minister Sheikh Hasina did not take visible action soliciting international recognition. The situation changed drastically in 2008 when the issue of trial of war crimes featured prominently in the election manifesto of the Awami League and the overwhelming mandate paved the way for prosecution of war crimes. Achievements in this respect are commendable. Judgments in the Tribunals (ICT-1 and ICT-2) provide testimony that the Bangladesh trials have not been “victor’s justice”. The cumbersome, long and complicated process of trial of crimes committed almost four decades earlier, the hard work by the prosecutors and the Investigating Agency for an additional time gave legitimacy to the whole trial process. The words of the Nuremberg Prosecutor Justice Robert H. Jackson “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that power has ever paid to reason,”[39] appear to be absolutely relevant to and even to a higher degree applicable in the trial of the genocidal crimes in Bangladesh. Trials of war criminals in Bangladesh established even higher standards of “proof” and thus contributed to the progressive development of international criminal law.

For fairness sake, it needs to be mentioned that success in the prosecution of war crimes and genocidal acts in domestic tribunals in Bangladesh was not matched by diplomatic initiatives by the Foreign Office. “It is only recently that the government has intensified its efforts towards attaining international recognition for the genocide committed in Bangladesh in 1971 which is one of the world’s worst genocides.”[40]The current government decided to observe the 25th March as “Genocide Day” marking the widespread killings by Pakistani Army on the unarmed Bangalees on the black night of March 25, 1971. The Cabinet approved a proposal to observe the 25th March as a Genocide Day on March 20, 2017. Earlier, on March 11 of the same year, the parliament unanimously passed a proposal to observe the day. The State Minister for Foreign Affairs commented: “The issue of attaining UN recognition remains as a priority of the Ministry of Foreign Affairs since it came up in parliament in March, 2017.”[41]

Nunca mas”- “Never again”- has been a powerful appeal since the Nazi holocaust, but the appeal has also been labeled “the world’s most unfulfilled promise.”[42] The Bangladesh Genocide in 1971 and non-recognition of the event is an unfortunate yet strong reminder of the unfulfilled promises. It is long overdue that the international community rise above petty political, ideological or economic considerations and call a spade a spade. In the absence of recognition of the 1971 genocide, the ultimate victim is ‘justice’ itself. Let us not forget that ‘injustice anywhere is a threat to justice everywhere’.[43]

Let Bangladesh rise up to the challenge of extracting international recognition of the 1971 genocide, let the past lapses of the diplomats and the Foreign Office be overshadowed by the success of international recognition and let the words become truly meaningful when we shout- “Nunca Mas”- “Never Again”!

 

[1] Hitler’s speech is reproduced in David Charlwood, Armenian Genocide: The Great Crime of World War I (Pen and Sword Military, 2019) 1; also found in UK Foreign Office, Documents on British Foreign Policy, 1919-1939, 3rd series,9 vols.(HMSO, 1949-55), vol.7, p.258.

[2] Dr. Mizanur Rahman, International Law in a Changing World (in Bangla) (Palal Prakashoni 2003) 71-72.

[3] Payam Akhavan and Rene Provost, ‘Moving from Repression to Prevention of Genocide’ in Payam Akhavan and Rene Provost (eds), Confronting Genocide (Springer 2011) 1.

[4] Ibid at 2.

[5] Ibid.

[6] M.Rafiqul Islam, National Trials of International Crimes in Bangladesh: Transitional Justice as Reflected in Judgments (University Press Limited 2019) 109.

[7] See, International Crimes (Tribunal) Act 1973.

[8] M. Rafiqul Islam (n 6) 107.

[9] ibid 109.

[10] Rome Statute, 2002, article 17(1) (a). The Rome Statute of the ICC, adopted July 17, 1998, entered into force July 1, 202; Bangladesh signed the ICC Statute on September 16, 1999, ratified March 23, 2010, and effective June 1, 2010.

[11] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) 1951, ICJ Rep.15, 23.

[12] Geoffrey Robertson, Crimes against Humanity. The Struggle for Global Justice (Penguin Books 2006) 273.

[13] ibid.

[14] Paraphrasing the judgment of the French Appeal Court in Klaus Barbie Case: Barbie (1988) 89 ILR 125, 130.

[15] María Luisa Bartolomei, ‘Universal Jurisdiction Vs National Sovereignty –The Cases Of Argentina And Chile’ (2007) 37 Nordic Journal of Latin American and Caribbean Studies 107-147.

[16]  The Case of the SS Lotus (France v. Turkey) (Merits) PCIJ Rep Series A No 10.         

[17] Hossein Mahdizadeh Kasrineh, ‘Immunity of Heads of State and its effects on the context of International Criminal Law’ (PhD Thesis, Hamburg University 2012) <https://d-nb.info/1023947587/34> accessed 29 May 2020.

[18] Called the Razakars, Al-Badrs, and Al-Shams created mostly from members of Jamat-e-Islami and its student wing Islami Chatra Sangha under East Pakistan Razakar Ordinance 1971, promulgated on June 1, 1971 and published in Dacca Gazette Extraordinary, August 2, 1971.

[19] Islam (n 7) 116

[20] Zakia Afrin, ‘The International War Crimes (Tribunal) Act, 1973 of Bangladesh’ (2010) Indian YB Int. L & Policy 342.

[21] See, Salil Tripathi, The Colonel Who Would Not Repent about the Bangladesh war and its Unique Legacy (YUP 2016); see also footnotes, Islam (n 7) 169.

[22] Tureen Afroz, ‘Trial of War Rapes: When Justice is an Issue’ (2019) (Unpublished research conducted at the CRT, EWU, Dhaka).

[23] Islam (n 7) 169-170.

[24] Genocide Case (n 13) 23-62.

[25] Ibid 26-41.

[26] Interview with Barrister Tapas Kanti Baul, ICT-BD Prosecutor (Dhaka, Bangladesh 22 May 2020). See also: www.ICT-BD.org

[27] For an extensive revealing materials and eye-witness accounts of genocide in Bangladesh in 1971, see, Sayeedi Appeal Judgment, 398-448; see more, Islam (n 7) 116.

[28] Akmal and Others Judgment, para. 265,298

[29] Beth Schaack, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spots’ (1997) 106 (7) Yale Law Journal 2274, 2280.

[30] In all likelihood, such recognition of genocide would form part of ‘soft international law’ but would carry huge moral and ethical value, while non-recognition of a crime like genocide is evidently immoral and unethical under contemporary international law.

[31] Akhavan and Provost (n 4) 2.

[32] Ibid 3.

[33] Catherine Lu, ‘The Politics of Legal Accountability and Genocide Prevention’ in Akhavan and Provost (n 4) 299.

[34] Luis Moreno-Ocampo, ‘The Role of the International Community in Assisting the International Criminal Court to Secure Justice and Accountability’ in Akhavan and Provost (n 4) 280.

[35] Luis Moreno-Ocampo, ‘Building a Future on Peace and Justice’ (Nurembrrg, 24/25 June 2007) < https://www.icc-cpi.int/NR/rdonlyres/4E466EDB-2B38-4BAF-AF5F-005461711149/143825/LMO_nuremberg_20070625_English.pdf> accessed 29 May 2019.

[36] Desmond Tutu, ‘Truth and Reconciliation’ (Greater Good Magazine, 01 September 2004) <https://greatergood.berkeley.edu/article/item/truth_and_reconciliation> accessed 29 May 2020.

[37] Ibid.

[38] Ridwanul Haque and Lutz Oette, ‘The Long Shadows of 1971’ in Mizanur Rahman (ed), Post Conflict Justice, Peace and Human Rights (ELCOP and Palal Prokashani 2009) 54.

[39] Robert H. Jackson, ‘The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of the Soviet Socialist Republics v. Hermann Wilhelm Goring et al)’ (Opening statement to the International Military tribunal, Case No. 1, Palace of Justice, Nuremberg, Germany, November 21, 1945).

[40] 35 (18) Dhaka Courier (Dhaka, 29 March 2019) 13.

[41] ibid.

[42] Samantha Power, ‘Never Again: The World’s Most Unfulfilled Promise’ (Frontline) <http:/www.pbs.org/wgbh/pages/frontline/shows/Karadzic/genocide/neveragain.html> accessed 01 April 2010.

[43] Martin Luther King Jr, ‘Letter From Birmingham Jail- April 16, 1963’ in Milton C. Sernett, African American Religious History: A Documentary Witness (Duke University Press 2000).



Tags : Liberation War 1971 , Genocide




Professor Dr. Mizanur Rahman is the Director, Centre for Advanced Legal Studies (CALS), University of Dhaka, and Former Chairman, National Human Rights Commission (NHRC), Bangladesh.