Research article: The UN and War Crimes/ Genocide Trials for Pakistani Soldiers in Bangladesh 1971–1974
"The happenings in East Pakistan constitute one of the most tragic episodes in human history. Of course, it is for future historians to gather facts and make their own evaluations, but it has been a very terrible blot on a page of human history" - U Thant, Secretary-General of the United Nations June 3, 1971
A significant part of the human rights regime established by the United Nations after the Second World War was the protection of group rights and the further regulation of warfare by prosecuting the violators of these new international laws. Unlike the interwar period when the League of Nations stood by haplessly as Italy invaded Abyssinia , the protection of human rights and international law was supposed to have teeth. Thus the United Nations General Assembly passed the Convention on the Prevention and Punishment of Genocide on 9 December 1948 (it came into force in 1951), one day before it adopted the Universal Declaration of Human Rights.
On the heels of the Nuremberg Trials, the Genocide Convention provides explicitly for prosecutions of suspects. Article 6 says: “Persons charged with genocide or any other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” What is more, Article 8 stipulates that contracting parties can have recourse to the UN: They “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide.”
A year later, in 1949, the Third Geneva Convention was signed by members of the “international community.” With respect to “grave breaches” of that Convention, which overlap in part with the Genocide Convention, it requires states “to enact legislation necessary to provide effective penal sanctions” and “to search for the persons alleged to have committed or ordered the commission of grave breaches and to try such persons before their own courts, or alternatively to hand them over to another contracting state that has made out a prima facie case.” The Convention also requires that states assist one another in criminal proceedings, such as extraditing suspects, as does the Genocide Convention.
Finally, the General Assembly of the UN authorized the Internal Law Commission (ILC) to formulate the principles of the Nuremberg Tribunals, which had been affirmed by the Assembly as part of international law. In 1950, the ILC specifi ed the elements of “Crimes against Peace,” “War Crimes,” as well as “Crimes against Humanity,” which, again, overlapped with the Genocide Convention. They are: “Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.”
Far from guaranteeing the absence of genocide, war crimes, and crimes against humanity, this legal regime stood by for fi fty years as the nation-states of the “international community” consistently violated them. The People’s Republic of China was alleged to have committed genocide in Tibet between 1959 and 1960. Dag Hammarskjold called the massacre of Balubas in the State of South Kasai of the Congo in 1960 “a case of incipient genocide.” The Hutu killing and expulsion of the Tutsi in the Rwandan revolution of 1963–1964 and the Tutsi massacres of Hutu nine years later in Burundi were also genocidal in character. Then there was the secessionist civil war in Nigeria between 1966 and 1970 in which the Igbos were subject to a famine campaign that took perhaps several million lives. In 1965 the massacre of half a million communists in Indonesia also targeted ethnic Chinese in genocidal attacks. No trials were mooted by members of the UN. This is a short list of cases until the end of the 1960s. Worse was to follow....
To illustrate these dilemmas, I focus on the case of the East Pakistani secession and the issue of related war crimes /genocide trials between 1971 and 1974. The reason for this choice is that the West Pakistan Army’s brutal, indeed genocidal, suppression of the East Pakistan (now Bangladesh) autonomy/ independence movement received more international attention than any other of the above-mentioned cases, yet nothing was done by the UN or nation-states to interdict, let alone condemn, the killing. As I will show, the term “genocide” was used extensively by eyewitnesses, journalists, and politicians throughout 1971 and subsequently. And for the first time since Nuremberg and Tokyo, war crimes trials were seriously considered, in this case by the new Bangladeshi state, which wanted to prosecute numerous Pakistani soldiers and officials held in Indian custody.
Contemporary legal observers thought that such trials would be as significant as the Nuremberg Trials, although they have received surprisingly little scholarly attention since that time. In the high diplomatic drama between Pakistan, India, and Bangladesh, the trial issue was even listed at the International Court of Justice in 1973, the first time such a notification had occurred. Even though the Bangladeshi state enacted a statute to try Pakistanis for war crimes, crimes against humanity, and genocide, however, the trials never eventuated.
I proceed as follows. The first section highlights the vocabulary that the media used in reporting the events. I show that the genocide concept was used extensively by the media and even diplomats to label the human rights atrocities committed by the Pakistani Army during its “Operation Searchlight” against the East Pakistani nationalists. Then I examine how the various UN agencies responded to the crisis in East Pakistan and to the media reporting. Finally, I briefly reconstruct the domestic and international drama of the proposed war crimes /genocide trials...
The Genocide Debate about the Pakistan Campaign
When Pakistani military violence was unleashed on the evening of 25 March 1971, the press naturally did not call it genocide. Civil war was the vocabulary of the first few days of Western reporting, which noted the existence East Pakistani resistance forces. The Boston Globe even spoke about “bloody clashes between staff and students” and the military in what were in truth one-sided massacres. Sydney Schanberg at the New York Times was more realistic: “The Pakistani Army is using artillery and heavy machine guns against unarmed East Pakistani civilians to crush the movement for autonomy in this province of 75 million people,” he wrote on 27 March. In successive days, he painted a picture of a well-planned military attack on civilian opposition figures and groups, an image captured by the title of his 29 March report, “Sticks and Spears against Tanks.” Like the editorial of the Sydney Morning Herald on 29 March, the civilian casualties were reported as extraordinarily high, between 10,000 and 100,000 –after only three or four days!
The reporting was the same in England. The Daily Telegraph’s Simon Dring, who, unlike other foreign journalists, managed to avoid expulsion from the country, reported 15,000 dead on 30 March, as well as the specific targets of the terror: students and Hindus, whose women and children were burned alive in their homes. The next day, the Telegraph reported that “killing was on a mass scale.” Given the general rhetorical caution of the media – no one had mentioned “genocide” – it was all the more remarkable that already on 27 March the American Consul General in Dacca, Archer Blood, sent a telegram to Washington headed with the phrase “Selective Genocide”:
1. Here in Dacca we are mute and horrified witnesses to a reign of terror by the Pak[istani] Military. Evidence continues to mount that the MLA authorities have list of AWAMI League supporters whom they are systematically eliminating by seeking them out in their homes and shooting them down. 2. Among those marked for extinction in addition to the A.L. hierarchy are student leaders and university faculty.… Moreover, with the support of the Pak[istani] military, non-Bengali Muslims are systematically attacking poor people’s quarters and murdering Bengalis and Hindus… Full horror of Pak. Military atrocities will come to light sooner or later. I, therefore, question continued advisability of present USG posture of pretending to believe GOP [Government of Pakistan] false assertions and denying.. that this office is communicating detailed account of events in East Pakistan. We should be expressing our shock, at least privately, to GOP, at this wave of terror directed against their own countrymen by Pak military.
Using uncannily similar language, the New York Times editorial of 7 April, entitled “Bloodbath in Bengal,” condemned Washington’s silence on what it called the “indiscriminate slaughter of civilians and the selective elimination of leadership groups in the separatist state of East Bengal.” Only a day earlier, with the carnage continuing without condemnation from the White House, Blood and twenty-nine diplomatic colleagues sent another telegram from Dacca – the celebrated “Blood Telegram” – to the State Department headed “Dissent from U.S. Policy Toward East Pakistan.”..
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Full title A Dirk Moses; The United Nations, Humanitarianism and Human Rights: War Crimes/Genocide Trials for Pakistani Soldiers in Bangladesh, 1971-1974; in Stefan-Ludwig Hoffman, ed., Human Rights in the Twentieth Century (New York: CUP 2011)
The Blood telegram
And: Jogendra Nath Mandal's Resignation Letter, October 1950