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By Aiman Rahman Khan

Genocide, a term coined by Rafael Lemkin[1] is fairly a recent one referring to an act that has been going for ages. In plain terms, it is the mass killing of a group of large or a few human beings in order to wipe them out completely. Surprisingly, the extermination is done by its own kind, the human beings, and the reason being the membership of a particular race, religion or ethnicity. However plain and simple it may sound, the scars of Genocide, run deep. It is the gravest of all crimes ever practiced by the human kind. Such events occurred throughout the history of human civilization, either by omission or by commission. Killing by omission is starving people to death, otherwise known as famine. The practice of killing by commission has been offered the term ‘Genocide’. Every account of genocide provides the contribution of the Government or a powerful class of the society. The mass killing of the Bengalee people in 1971 is a prime example of Genocide by Government.

The World War ended with the wounds of the Holocaust still remaining unhealed. United Nations was created, ensuring such events do not replicate anywhere else. The world we know now was then gradually mending itself with bilateral relationships. 26 years into the time when the World finally started to learn from its mistakes, the echo of another barbaric event was being heard from South East Asia. It was in 1971, when the world witnessed acts of genocide committed by the Pakistani military against unarmed Bangalee population. They lashed onto innocent Bangalee civilians in the dead of the night of 25th March 1971 killing 20,000 people in one ‘Operation Searchlight’. The Fuehrer’s regime was re imagined under the orders of the then President Yahya Khan in the nine month long war that resulted in the genocide of three million Bengali population.

How does Genocide occur?

Genocide can be explained in many aspects. From a psychological perspective, it is perpetrated by those with a sense of superiority. Freud observed that “the communal feeling of groups requires, in order to complete it, hostility towards some extraneous minority. The psychological dynamic by which the “Self” and the “We” are defined against the “Other” is fundamental to genocide. It is the intentional destruction of national/ ethnic/ political/ social/ religious groups based on their collective identity. Although Physical killing is a major part but not the only part. Threatening to kill or even major forced displacement, or controlling child birth within the intended group is included in the list of things that constitute Genocide.

From the perspective of political thinkers, Genocide is the deliberate destruction of physical life of individual human beings by reason of their membership of any human collectivity as such (Peter Drost, 1953). According to Henry Huttenbach, Genocide is any act that puts the very existence of a group in jeopardy. Frank Chalk and Kurt Jonassohn believes Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, and membership in it are defined by the perpetrator.

According to Genocide Watch, Genocide is a process that develops in ten stages that are predictable but not inexorable, they are: Classification, Symbolization, Discrimination, Dehumanization, Organization, Polarization, Preparation, Persecution Extermination and Denial.[2]

Legal Definition of Genocide

According to Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and Section 3(2) (c) of the International Crimes Tribunal Act, 1973 (Act XIX of 1973), any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

  • Killing members of the group
  • Causing serious bodily or mental harm to members of the group;
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
  • Imposing measures intended to prevent births within the group
  • Forcibly transferring children of the group to another group [3]

The Genocide in East Pakistan (now Bangladesh):

The genocide in East Pakistan was a result of a series of events leading to it. After the 1947 partition between India and Pakistan, there was a language resistance among the Bengalis in East Pakistan. 1952 saw the Language Movement which was for advocating the recognition of Bengali Language as the official language of the then dominion of Pakistan. Previously in 1949 Awami League was formed by the then Bengal Muslim League leaders. Both the Hindus and Muslims voted for the newly formed party in 1955 which led the then President of Pakistan, Ayub Khan to order a Martial Law in East Pakistan. The Martial law sowed the seeds of a new hope among the Bengalis, the movement for freedom. Sheikh Mujib’s six point demand created an uprising in 1969 when Yahya Khan took over the power via a military coup. The Election of 1970 peaked the conflict between a decaying state (Pakistan) and an emerging state (Bangladesh). The Six points made by Sheikh Mujib made power handover impossible thus leaving Pakistan with no option but to go to War with its own people. Conflict was inevitable since the two states share different histories, objectives and resource sharing mechanism.

How did the Genocide take place?

It is reported that on February 22nd 1971 Yahya Khan said the following to a group of generals: “We must kill three million of them, and the rest will eat out of the palm of our hand.”Yahya appointed a new military governor for East Pakistan (Bengal), General Tikka Khan, who declared immediately after taking office that he would carry out a “final solution.” He even threatened to kill four million people in 48 hours. The killings began on March 25th, 1971. The West Pakistan army, along with reinforcements, set out on a cleansing campaign targeting East Pakistani intellectuals and students, Bengals, Hindus, and urban workers. [4]

When asked the reason for the high number of murders, General Tikka Khan answered that “he is not concerned about the people; he is concerned about the land.”[5] Thousands of Bengalee girls were raped and prohibited to abort, in an attempt to introduce a new generation of Pakistani blood. After being assaulted and impregnated by Pakistani soldiers, the Bangladeshi women were completely ostracized by society. Many were killed by their husbands, committed suicide, or murdered their half-Pakistani babies themselves.[6] Nearly 1.5 million refugees sought asylum in India; by November 1971 that number had risen to nearly 10 million.[7]

The Pakistan Occupational Army came in direct conflict with non-combatant farmer-class Bengalee population. Most of the criminality was aimed at making East Pakistan free of Hindus. [8]They were primarily targeted, along with supporters of Awami League. Estimates for the total number of deaths range from 500,000 to over 3 million, with the death toll having become politicized over the years, says Lisa Curtis, a senior research fellow at the Heritage Foundation’s Asian Studies Center. “Regardless of what the number is, clearly massive atrocities took place against the Bengali people,” Curtis says.[9]

Can Pakistan be prosecuted at an International level for the atrocities it had committed in 1971?

Genocide is an International Crime. Certain crimes because of their very nature, gravity, magnitude and horrendousness are today defined as ‘crimes under international law’ or simply ‘international crimes’. Such crimes can be tried under two ways, either by territorial jurisdiction or Universal Jurisdiction.  Universal Jurisdiction is established over certain crimes (such as piracy, war crimes and genocide) without reference to the place of perpetration, the nationality of the suspect or the victim or any other recognized linking point between the crime and the prosecuting State.

Universal Jurisdiction can be found in the following treaties and conventions:

Geneva Conventions of 1949: Article 129 of G.C. III:

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. “

Convention against Torture (1984): Article 5(2):

“Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction . . .”

The perpetrators are viewed as hostis humani generis, enemies of humankind, and any state which obtains custody over them has a legitimate ground to prosecute in the interest of all states, even if the state itself has no direct connection with the actual crime. Some of the examples of Universal Jurisdiction are The Eichmann Trial and the Augusto Pinochet case. Since 1999, Spain has indicted (and in one instance convicted — Adolfo Scilingo) a number of ex-members of military juntas from Latin America who might have otherwise gone unpunished. Rwandan and Yugoslav mass murderers have been prosecuted in various jurisdictions such as Germany, Switzerland.

In 1993, in response to massive atrocities in Croatia and Bosnia-Herzegovina, the United Nations Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY). It was the first international criminal tribunal since Nuremberg and the first ever mandated to prosecute the crime of genocide. A year later, in response to devastating violence in Rwanda, the Security Council established the International Criminal Tribunal for Rwanda (ICTR). Nearing the completion of their mandates, both of tribunals have contributed detail, nuance, and precedent to the application of the law of genocide.

In 1998, the Rome Statue of the International Criminal Court (ICC) established the first permanent international criminal court. The Rome Statute’s drafting process and the ICC’s ongoing case against the president of Sudan have added further clarifications to the international law of genocide. In 2007, the International Court of Justice (ICJ), which hears cases between states, issued a landmark decision addressing state responsibility to prevent and punish genocide in the case of Bosnia and Herzegovina v. Serbia and Montenegro.[10]

Hence, under this principle, Pakistan may rightly be brought to trial under International Law.

Genocides around the world:

There have been at least three genocides recognized by the United Nations:

  • The mass killing of Armenians by Ottoman Turks between 1915-1920, an accusation that the Turks deny The Holocaust, during which more than six million Jews were killed
  • Rwanda, where an estimated 800,000 Tutsis and moderate Hutus died in the 1994 genocide
  • In Bosnia, the 1995 massacre at Srebrenica has been ruled to be genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY).

And others give a long list of what they consider cases of genocide, including the Soviet man-made famine of Ukraine (1932-33), the Indonesian invasion of East Timor (1975), and the Khmer Rouge killings in Cambodia in the 1970s. However, the genocide of Bangladesh still couldn’t find a place in the UN’s records.

47 years, three million deaths and thousands of rapes later, the Genocide that took place in Bangladesh is yet to receive International empathy. There are overwhelmingly strong evidences that the above crimes were committed by Pakistani regular and auxiliary forces during the Bangladesh War of Liberation in 1971. The country may be rightly tried under the established treaties in International Law but needs an effective push from the UN. As the International community still chooses to remain silent, the memories of the War continue to tear the Bangladeshis apart. The perpetrator country remains free from all objections when the victims pray for the justice that was never served.


Aiman Rahman Khan is a Research Associate at Bangladesh Legal Aid and Services Trust (BLAST). He is currently pursuing his M.S.S with a major in Victimology and Restorative Justice from University of Dhaka. He completed his LLB from University of London and LL.M from Eastern University, Bangladesh.


Reference

[1] First appeared in Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (1944).

[2] Genocide Watch, ‘The Ten Stages of Genocide by Dr. Gregory Stanton, [available on: http://genocidewatch.org/genocide/tenstagesofgenocide.html]

[3] UN OHCHR, ‘Convention on the Prevention and Punishment of the Crime of  Genocide’ [available on http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx]

[4] The Combat Genocide Movement, ‘Bangladesh 1971’, [available on: http://combatgenocide.org/?page_id=88]

[5] The Combat Genocide Movement, ‘Bangladesh 1971’, [available on: http://combatgenocide.org/?page_id=88]

[6] Hossain A (2012), ‘1971 Rapes: Bangladesh cannot hide history!’ [available on: https://www.forbes.com/sites/worldviews/2012/05/21/1971-rapes-bangladesh-cannot-hide-history/#c93c4916dfed]

[7] Boissoneault L. (2016) ‘The Genocide the U.S Can’t Remember, But Bangladesh Can’t Forget, [available on: http://www.smithsonianmag.com/history/genocide-us-cant-remember-bangladesh-cant-forget-180961490/]

[8] Hoque M (2014), ‘Bangladesh 1971: A forgotten Genocide’ [available on: http://www.thedailystar.net/bangladesh-1971-a-forgotten-genocide-50941]

[9] Boissoneault L. (2016) ‘The Genocide the U.S Can’t Remember, But Bangladesh Can’t Forget, [available on: http://www.smithsonianmag.com/history/genocide-us-cant-remember-bangladesh-cant-forget-180961490/]

[10] United States Holocaust Memorial Museum, ‘The Genocide Convention in Intl Law’ [available at: https://www.ushmm.org/confront-genocide/justice-and-accountability/introduction-to-the-definition-of-genocide]

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