This is part 2 of a 3-part series on the Bangladesh International Crimes Tribunal (BICT). Part 1 is here. Part 3, available here, addresses the contemporary proceedings and the expectations of victims.
It was not inevitable that the BICT would backfire. In fact, its necessity was pressing and its origins honorable. By way of background…
The August 1947 Partition of India produced the Islamic Republic of Pakistan, a nation divided at its birth by more than 2,000 miles of Indian terrain. Governing two far-flung territories—then called West and East Pakistan—with little if anything in common besides a fealty to Islam proved impossible, especially with political and other power initially concentrated in the West. Things came to a head when national elections held in December 1970 resulted in victory for the East Pakistani Awami League, headed by Sheik Mujibur Rahman, deemed the Father of the Nation (and—as is typical of the sub-continent’s dynastic politics—also the father of the current Prime Minister). The government then in place in East Pakistan refused to relinquish power. To suppress the burgeoning Bengali nationalist movement, authorities in West Pakistan launched Operation Searchlight in March 1971 with the secret airlifting of members of the Pakistani Army into East Pakistan, the imposition of a curfew, the blocking of all forms of communication, and the arrest of the Awami League leadership. Working with local collaborators (razakar)—some of whom were affiliated with the anti-independence Jamaat-e-Islami party—Pakistani forces unleashed a campaign of violence that targeted the intelligentsia, civic leaders, students, and Hindu communities. The singling out of Bengali citizens, particularly in the eastern zones, gave rise to charges of genocide—one of the first invocations of the term since the promulgation of the Genocide Convention following World War II. An anguished contemporaneous cable from the U.S. embassy entitled “Selective Genocide” admitted that U.S. personnel were rendered “mute and horrified witnesses to a reign of terror by the Pak military” and begged for the ability to confront Pakistan over its actions.
What was supposed to be a quick pacification exercise dragged on for months, with all the attendant harm to the civilian population. Indeed, during the 9-month Operation, the invading army and their collaborators perpetrated a mind-boggling array of atrocities. Notably, Operation Searchlight unleashed one of the largest instances of wartime rape ever recorded: it is estimated that between 200,000-400,000 women and girls were raped as well as subjected to sexual enslavement, mutilation, and forced impregnation. As is typical, there are no firm numbers of those killed either, but estimates range from 300,000 to 2 million. It is known that the Operation generated almost 10 million refugees—sometimes upwards of 50,000 per day—who fled to neighboring India, which opened its borders to provide refuge.
Spurred by this influx of refugees, and the targeting of individuals of the Hindu faith, India eventually intervened on East Pakistan’s behalf in December 1971 under the leadership of Prime Minister Indira Gandhi—a frequently cited example of post-Charter humanitarian intervention, although India relied on a self-defense rationale as well. Fighting alongside East Pakistani “freedom fighters” (mukti bahini), the Indian Army helped to defeat the Pakistani troops after less than two weeks of fighting (one of the shortest international armed conflicts on record). The occupation army surrendered on December 16, 1971, now known in Bangladesh as “Victory Day.” This left upwards of 100,000 prisoners of war—the most since World War II—in Indian custody. India detained 195 who were deemed the most responsible for the atrocities; the rest were repatriated at the end of the war.
With an eye toward prosecuting those who had aided and abetted the Pakistani forces, the Bangladesh Collaborators (Special Tribunals) Order came into force in 1972 by Presidential Decree. The next year, the Parliament promulgated the International Crimes (Tribunals) Act (the 1973 Act) “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.” Sheikh Rahman, the primary political force behind the independence movement, quite presciently contemplated local prosecutions of East Pakistani citizens and an international tribunal to prosecute POWs. By Presidential Order No. 16 in February 1973 (the Bangladesh National Liberation Struggle (Indemnity) Order), however, the liberating forces were given immunity from prosecution. In November 1973, the government declared a general pardon and amnesty that applied to low-level offenders, but not to individuals accused of rape, murder or genocide.
Meanwhile, Pakistan instituted suit against India before the International Court of Justice over the fate of its 195 citizens, arguing that it enjoyed exclusive jurisdiction for crimes committed on the territory of then-Pakistan by virtue of Article 6 of the Genocide Convention. (That provision obliges states parties to exercise territorial jurisdiction over genocide, but does not preclude resort to other bases of jurisdiction). Pakistan also held thousands of Bengalis resident in West Pakistan hostage in retaliation for the threat to prosecute the POWs.
On April 9, 1974, India, Bangladesh, and Pakistan entered into a tripartite agreement for the normalization of relations on the sub-continent. The agreement ensured the recognition of Bangladesh, enabled a massive three-way repatriation of civilians, and embodied a decision to forgo trials in a spirit of clemency, reconciliation, and forgiveness. The ICJ case, which had been postponed several times in order to enable the parties to undertake negotiations, was dropped as part of the comprehensive settlement between the two nations. Eventually, the 195 POWs were returned to Pakistan following its assurances that they would be prosecuted at home.
For its part, Pakistan constituted the Hamoodur Rahman Commission, which was mandated to undertake “a full and complete account of the circumstances surrounding the atrocities and the 1971 war.” Although it dramatically downplayed the prevailing statistics on rape and murder, the final report was critical of the Pakistani military and was not published. Indeed, apparently 11 of the 12 copies were destroyed. The surviving copy was eventually leaked to the press and then fully declassified in 2000. In the end, no one in Pakistan was held accountable for the atrocities in East Pakistan in any meaningful way.
A number of cases went forward in Bangladesh under the 1972 Presidential Order. Many convictions were ultimately pardoned, however. In 1975, Sheikh Rahman was assassinated, which scuttled these efforts. Later that year, the 1972 legislation, but not the 1973 Act, was repealed. It was thus left to Rahman’s daughter—Prime Minister Sheikh Hasina Wajed—to complete this aspect of her father’s legacy.
Part 3 of this series will fast forward to the present time.