The Prime Minister of Bangladesh Sheikh Hasina recently concluded four-day visit to New Delhi which marked a significant milestone in both the country’s relationship. Although still considered one of the world’s Least Developed Countries (LDCs), Bangladesh has a rapidly growing economy with burgeoning foreign exchange reserves that have given it a newfound confidence to assert its identity globally and to seek justice for the wrongs inflicted upon it in the past. The plethora of bilateral agreements (twenty-two, to be precise) inked with India during the Prime Minister’s visit and the recent decision of the Bangladeshi government to pursue, with the United Nations (UN), the matter of declaring the events of 1971 a ‘Genocide’, are both tell-tale signs of a country that is becoming increasingly confident.

East Pakistan to Bangladesh

Today’s Bangladesh seems a far cry away from when it was called East Pakistan and effectively the impoverished colony of its wealthier co-religionists in West Pakistan. In spite of constituting the majority in Pakistan, Bengalis were denied even the fundamental cultural and political freedoms. In fact, in 1948, within a few months of independence and with the partition of India, the West Pakistani establishment imposed Urdu as the language of the State, even though it wasn’t native to Pakistan and the majorities in either wing of the newly-created nation barely understood it. The resultant protests in East Pakistan and the brutal State repression that followed claimed the lives of many. This further led to the arbitrary detention and arrest of several young Bengali political leaders including Sheikh Mujibur Rahman, the man who would go on to become the founding father of Bangladesh.

From the late 1940s to the early 1970s, West Pakistan persisted in unabashedly pursuing its agenda of systematic violence and oppression against the people of East Pakistan through various means, ranging from economic exploitation to political subjugation through the force of arms. Matters came to a head after the elections of 1970, when Pakistan’s military junta deprived the Bengalis – represented by the Awami League and its leader Sheikh Mujibur Rahman – of their right to elect the Prime Minister of Pakistan. They launched a barbarous crackdown culminating in the 1971 War, where India’s eventual intervention in the month of December saved the day and liberated Bangladesh. India’s timely and decisive action to settle things notwithstanding, the months preceding December 1971 witnessed a human tragedy of monstrous proportions, murder on an almost industrial scale with few parallels in the history of humankind.

Genocide

Operation Searchlight, as it was called by the West Pakistani military, started on the night of March 25, 1971. It aimed at wiping out an entire generation of Bengalis. Intellectuals, activists, artists, journalists, politicians or common people going about their daily lives, nobody was spared by the Pakistan Army. Such was the degree of impunity with which Operation Searchlight was carried out that an officer participating in the operations infamously boasted, “We can kill anyone for anything. We are responsible to none.” Lt General Tikka Khan’s forces were clearly leaving no stone unturned in their efforts to kill, maim, rape and torture as many Bengalis as possible. A list of three thousand intellectuals, including fifty from the Dhaka University, had been prepared for liquidation with the help of the Al Badar student wing, under the influence of Jamaat-e Islami. In Chittagong, as in Dhaka and other parts of the country, West Pakistani troops launched premeditated attacks on installations with Bengali troops. Troops of the 22 Baloch Regiment attacked the East Bengal Rifles Centre at night, killing hundreds of Bengali troops and their officers. The massacre didn’t stop at that, they then proceeded to attack the family quarters of the East Bengal Rifle (EBR) troops to murder women and children in cold blood. A similar pattern was repeated throughout in East Pakistan where entire villages were burned to the ground, families were displaced, and were people murdered after being put through unspeakable suffering. The horrors of that period of mindless butchery are best encapsulated by the succinct title of Anthony Mascarenhas’ June 13, 1971 Sunday Times article, “Genocide”.

Futile Quest for Justice

Bangladesh’s quest for justice started soon after independence. The acting President, Syed Nazrul Islam, declared within a week of independence that Bangladesh would ask India to handover those Pakistani Prisoners of War (POWs) who had committed war crimes, crimes against humanity and genocide in Bangladesh. The clamour for the perpetrators of atrocities to face the law grew louder over the next few days and weeks as politicians, civil society and victims alike spoke in unison about the need to ensure that Pakistani military does not get away scot-free. When Sheikh Mujibur Rahman triumphantly returned to Bangladesh on January 10, 1972, he promised to initiate criminal proceedings against the accused. Pursuant to this, and to bring local collaborators to justice, the Bangladesh Collaborators (Special Tribunal) Order was brought into force in 1972 (this order was repealed in 1975 after Mujib’s assassination). The Government of India also promised full cooperation in carrying out the proceedings and announced that it would be handing over to Bangladesh, all military prisoners against whom a prima facie case could be established.

In 1973, Bangladesh declared that a two-tier tribunal under the International Crimes (Tribunal) Act would be established. This tribunal was to include prominent national and international jurists and the purpose was to try captured Pakistani Army personnel and their collaborators for violations of the Geneva Conventions, crimes against peace, crimes against humanity, war crimes and genocide.

Pakistan’s reluctance to let the tribunal function became apparent from Bhutto’s statement on May 28, 1973, when he declared that Pakistan “cannot stomach” trials of POWs alleged to have committed atrocities and threatened Bangladesh with reciprocal action on Bengalis in Pakistan’s custody. “We know the Bengalis passed on information during the war. There will be specific charges. How many will be tried, I cannot say,” Bhutto reportedly stated, implying that Pakistan wanted to use Bengalis under its custody as a bargaining chip. Subsequently, Pakistan took 203 Bengalis into custody, anticipating that India and Bangladesh would be forced to handover 195 Pakistani military personnel who were to be prosecuted in the tribunal as a quid pro quo measure. Bhutto coupled this with the creation of hurdles in Bangladesh’s path to international recognition. Pakistan got China to exercise its veto in the Security Council when the question of Bangladesh’s United Nations membership came up. After a lot of diplomatic manoeuvring and haggling by Pakistan, Bangladesh’s efforts proved futile. After the 1974 India-Pakistan-Bangladesh tripartite agreement, it was agreed that all Pakistani military officers in Bangladeshi custody would be released.

Hopes Revived

In spite of the setback it received in bringing Pakistani perpetrators of atrocities to justice, Bangladesh did press on with cases against some of the locals involved and as a result, 752 individuals were found guilty and sentenced. The impetus dissipated after the assassination of Sheikh Mujibur Rahman and it was widely believed that justice for the victims of 1971 was an idea that would not see the light of the day. However, much to the chagrin of Bangladesh’s radical Islamists, i.e. primarily the Jamaat-e Islami, and Pakistan itself, the hopes of justice being done received a fresh lease of life in 2009 when the International Crimes (Tribunal) (Amendment) Act, 2009 established the International Crimes Tribunal (ICT) to prosecute war crimes, crimes against humanity and acts amounting to genocide committed in 1971. The Tribunal was strengthened further after the 2013 amendment, which broadened the scope of the trial to include the trial of organisations. It also gave the prosecution the right to appeal sentencing in case it was dissatisfied by the quantum of punishment. Bangladesh set the wheels of justice in motion to ensure that the perpetrators of atrocities are held accountable for their crimes. Soon enough, individuals convicted by the ICT started to be sentenced and those awarded capital punishment were duly executed.

The executions started in December 2013 with the Assistant Secretary General of the Jamaat-e-Islami (JeI) Abdul Quader Molla. Molla was convicted of organising mass murders in Mirpur in his role as an organiser of the notorious Al-Badr militia, which was for all intents and purposes, an auxiliary arm of the Pakistan Army. The ICT in Molla’s case also debunked myths being peddled about the ICT’s adherence to international standards. It unequivocally declared that the International Crimes (Tribunal) Act, 1973 provides for “adequate compatibility” with the rights inalienable to all human beings under the Universal Declaration of Human Rights and the International Covenant for Civil and Political rights. However, Pakistan, for its part, reacted angrily and its National Assembly passed a resolution condemning the execution of Molla, terming it punishment for his “loyalty to Pakistan”.

Molla was followed to the gallows in 2015 by another JeI leader, Mohammed Kamaruzzaman, who was a key constituent of the Al Badr’s murderous organisation in the Mymensingh region during the war. Later in 2015, JeI Secretary General Ali Ahsan Mohammad Mojaheed and Bangladesh Nationalist Party (BNP) leader SQ Chowdhury were also executed for their crimes, which included the premeditated murder of intellectuals and minorities respectively. This was the first time that two former ministers had been executed, illustrating that when it came to the ICT, the rule of law would outweigh all other considerations, regardless of how politically powerful the accused may have been.

Pakistan stayed true to form and condemned the executions. The Pakistani establishment’s unwillingness to back Bangladesh’s efforts at delivering justice to the victims of Pakistan’s crimes was reiterated by Interior Minister Nisar Ali Khan’s statement terming the executions ‘unfortunate’ and ‘deeply disturbing’.

Not all, who were convicted were executed. The ICT handed out lengthy life imprisonment sentences to many. Ghulam Azam, the ideological lynchpin of the JeI and mastermind of many an atrocity carried out by the Bengali sympathisers of Pakistan’s military regime, was deemed too old to be executed and was therefore sentenced to a 90-year prison term. He died in prison at the age of 92.

Criticism of the ICT proceedings has often been premised on the fact that Pakistani military personnel are conspicuous by their absence from the list of individuals tried, convicted and sentenced. Bangladesh has sought to address this issue by announcing that it will approach the International Court of Justice (ICJ) to try the 195 Pakistani military personnel or those among them still living for war crimes, a statement to that effect was made in March 2017 by Bangladesh’s Law Minister Anisul Haq. In another development from the same month and a sign that Bangladesh is firm in its resolve to make officers of the Pakistan Army face justice for their crimes, it was decided that Captain Mohammed Shahidullah, a Bengali officer in the Pakistan Army during the war, would be put on trial. He is accused of having committed murder, wrongful confinement, and torture along with looting.

The Road to International Recognition of Genocide

The Government of Bangladesh declared in March 2017, that it would take the initiative to get the United Nations recognise the events of 1971 as genocide. In doing so, it was perhaps taking a cue from the Armenian attempt at getting international recognition for the Armenian Genocide, in spite of stiff opposition from Turkey, a North Atlantic Treaty Organisation (NATO) member and regional power. Turkey has been using its global influence and economic might to try and whitewash the results of the Ottoman Empire’s persecution of Armenians during and after the First World War. Turkey’s efforts have, however, been met with mixed results. Armenia, despite being a small country, did manage to get as many as 26 countries, including the United States, Russia, France and Germany to recognise the Armenian Genocide.

Pakistan, though in no way as influential or economically prosperous as Turkey, will continue to do what it first did immediately after the creation of Bangladesh and try to impede the process by roping in China and Organisation of Islamic Cooperation (OIC) member states amiable to it. Bangladesh must therefore use all instruments of state power at its disposal to ensure that the events of 1971 are recognised internationally as amounting to genocide. For this, it is also imperative that Bangladesh present a water-tight case before the international community and prove beyond reasonable doubt that Pakistan and its local Bengali collaborators committed genocide. Given Bangladesh’s decision to gain international recognition for the events of 1971 as genocide, it becomes pertinent to analyse the matter from the perspective of international law and ask the question: was it genocide?

The definition of genocide in Section 3(2)(c) of Bangladesh’s International Crimes (Tribunal) Act, 1973, is identical to the definition provided under Article II of the Convention on the Prevention and Punishment of Genocide, 1948. It includes the killing of members of a particular group, causing serious bodily harm and mental harm to members of such specific group. Under the Genocide Convention, such an atrocity has to be "committed with intent to destroy, in whole or in part, a national, ethnical, religious or racial group." It is clear that the crimes in the territory of Bangladesh during 1971 were committed with specific intent to do destroy an entire ethnic group. The malicious intent of the Pakistani Army in 1971 is perhaps best illustrated by Lt. General Niazi’s infamous threat to “change the race” of the Bengalis, alluding to the systematic use of rape as an instrument to subjugate the womenfolk of Bangladesh and carry out ethnic cleansing. Official figures put the number of women raped during that period at between 2, 00,000 and 4, 00,000. That systematic rape is a tell-tale sign of genocide has been established in international law by the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case.

If the macabre systematism with which rape was used wasn’t enough to prove Pakistan’s culpability on the charge of genocide, the sheer amount of people who perished as a result of its actions supplement an already compelling case. Even Pakistan’s own Hamoodur Rahman Commission Report, while considerably suppressing data about the magnitude of the violence, provided a conservative estimate of 26,000 people having been killed. Bangladeshi official figures put the death toll at a much higher 3 million people. In addition to these broad facts that have already been placed in the public domain, Bangladesh asserts that it has been gathering information about specific crimes. They claim to have attained a considerable degree of success in its endeavours towards that end. It is quite evident that Bangladesh does indeed have an almost watertight case when it comes to proving that a genocide was committed on its territory at the behest of the Pakistani military and its local allies.

India’s Role

Unfortunately, simply proving that a genocide did take place may not amount too much. Suffice to say that merely having a strong, legally sound and facts-based case will not be enough for the events of 1971 to be recognised as genocide. This has to be backed-up by sound, comprehensive, consistent and persistent diplomatic moves.

It is here that India can step in and play a historic role. India’s role in the liberation of Bangladesh from the clutches of Pakistan and its subsequent accommodation into the comity of nations as a sovereign state are well recognised and appreciated in Bangladesh. It would be in India’s national interest to build on that goodwill by backing the Bangladeshi quest for justice because it would serve multiple purposes.

Firstly, it would boost Indian public diplomacy in Bangladesh. India is faced with the challenge of a growing Chinese economic footprint in Bangladesh. While this can be countered on one level by enhancing and expanding Indian investment in Bangladesh. Relying solely on this option faces a significant resource constraint owing to the disequilibrium in economic power that currently exists between India and China. The goodwill generated by open Indian support for international recognition of the Bangladesh genocide would go some way in improving India’s profile in Bangladesh.

Secondly, bringing the events of 1971 to the international spotlight by naming and shaming Pakistan will go a long way in undercutting Pakistan’s brouhaha over human rights in Jammu and Kashmir and other parts of India. By showing that Pakistan has played and is continuing to play an obstructionist role when it comes to Bangladesh’s efforts of bringing the perpetrators of genocide to justice, India will be demonstrating to the world at large that Pakistan has no moral credibility to sermonise on the internal affairs of India.

Last but not least, India stands to gain credibility internationally as a country that stands up for a just cause. A significant moral component to India’s otherwise commerce and interest-driven, realpolitik-based foreign policy is in the national interest and the need of the hour. India must therefore extend all possible moral, material and legal support to Bangladesh as it seeks justice both internally, through the ICT trials, and externally. It is encouraging to see that the steps taken towards this has made great progress. Prime Minister Hasina’s visit to India saw the inking of Memorandums of Understanding (MoUs) on judicial training and judicial sector cooperation. Both countries should ensure that this cooperation is extended to benefit the proceedings of the ICT in Bangladesh, where Indian academia and judicial institutions can share expertise with their Bangladeshi counterparts.

The joint statement issued after the meeting between the two Prime Ministers was indicative of India’s resolve to assist Bangladesh in pursuing the matter of getting international recognition for the genocide. It read, “The two Prime Ministers condemned the genocide that occurred in Bangladesh in 1971. They solemnly acknowledged the atrocities and called upon the international community to recognise and preserve the memory of those who lost their lives and those who suffered during the genocide.”

Conclusion

The genocide in Bangladesh was the worst of its kind seen in the second half of the 20th century, and the most horrific episode in the history of the Indian Subcontinent after partition. Bangladesh’s recent efforts at bringing the perpetrators of the genocide to justice and getting it internationally recognised as a genocide are laudable and are demonstrative of the country’s newfound confidence in itself. Pakistan will continue to oppose tooth and nail, any move in this direction by Bangladesh. It is in India’s broader national interest to extend full support to Bangladesh in this endeavour and the results of the Bangladesh Prime Minister’s recent visit to India are encouraging.

References

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