article
r ep r i n t
THE
INTERNATIONAL LAWYER
Crim es A gainst
H um anity in Bangladesh
N IA L L M A C D E R M O T , Q.C.
Reprinted from THE INTERNATIONAL LAWYER, Volume 7, Number 2, April 1973
A Quarterly Publication of the Section of International Law, American Bar Association
Copyright © 1973 American Bar Association
N IA L L M A C D E R M O T , Q.C.*
Crim es A gainst
H um anity in B angladesh t
In April 1972 the w riter paid a visit to D acca with tw o objects in view.
T he first was to obtain further inform ation for the study which the staff o f
the International C om m ission o f Jurists was preparing on the events in
E ast P akistan in 1971. This is now available.1 It contains a sum m ary o f the
events and an analysis o f the légal im plications from the point of view of
Pakistani internai law, international pénal law, the right o f selfdeterm ination, the rôle o f the U N , and the rôle o f India.
T h e second object was to seek to persuade the governm ent o f Bangla­
desh that if, as stated, they are to bring to trial senior Pakistani générais
and officiais on charges o f w ar crim e s'an d crim es against hum anity, they
should do so under international pénal law before an international tribunal
containing a m ajority o f judges from neutral countries.
In order to explain why this was urged upon the Bangladesh govern­
m ent, the nature o f the violations o f hum an rights which occurred on both
sides will be outlined briefly, followed by com m ents upon their im plica­
tions under international pénal law, before dealing with the trial procédures
which the Com m ission suggested should be followed.
T he serious violence began on the night o f M arch 25, 1971, at the end of
three weeks o f inconclusive talks in D acca betw een Président Y ahya K han
and Sheikh M ujibur Rahm an. T hese w ere aim ed at reaching agreem ent
upon the broad lines o f a new constitution to replace the m ilitary régime
which had usurped pow er in M arch 1969.2
*Secretary-G eneral International C om m ission o f Ju rists; form er M inister o f State in the
G overnm ent o f the U nited Kingdom.
tB ased on an address by the a uthor to the A m erican Bar A ssociation Section of
International L aw on A ugust 16, 1972, at San Francisco.
'T h e E ve n ts in E a st Pakistan, 1971, available from the International C om m ission of
Jurists, 109 route de C hêne, 1224 C hêne-B ougeries/G eneva, Sw itzerland. Price U .S. $3
(postage free).
2lt will be rem em bered that in élections to the E ast Pakistan C onstituent A ssem bly in
D ecem ber, 1970, the A w am i L eague, led by Sheikh M ujibur R ahm an had won 167 o f the 169
E ast Pakistan seats, constituting a m ajority o f the entire A ssem bly. T he num ber o f seats
allocated to W est Pakistan was 144. T he C o n stitu en t A ssem bly was due to m eet in D a cca on
M arch 3, but P résident Y ahya K han postponed the m eeting for further talks.
\
476
In te rn a tio n a l L a w ye r, Vol. 7, N o . 2
Crimes Against Humanity in Bangladesh
477
During the three-w eek period, the Pakistan arm y rem ained in their
cantonm ents, and it is hardly an exaggeration to say th at the Awami
League led by M ujibur Rahm an had provided the de facto governm ent o f
E ast Pakistan. Considering the prevailing tensions, there had been rem arkably little violence, apart from one m ajor ou tburst against the Biharis in
Chittagong from 3 to 7 M arch.3
O n M arch 25 Président Y ahya K han flew back to W est Pakistan, and at
10 PM the arm y left their cantonm ent in D acca. A t the time it was said
that their object was to restore law and order. L ater it was stated that the
object was to forestall an arm ed uprising planned for the next morning by
defecting Bengali troops and police, and by Awam i League supporters. In
the C om m ission’s staff study neither o f these explanations was accepted,
for reasons stated. The m ore simple and obvious explanation seem ed likely
to be the right one, nam ely, th at w hen P résident Y ahya K han concluded
th at there was no basis for agreem ent upon a constitutional settlem ent, he
decided to reassert the authority o f his m ilitary régime over E ast Pakistan.
It was not till 1:30 the next m orning th at Sheikh M ujibur R ahm an was
arrested at his hom e, where he was waiting quietly for his captors —hardly
the conduct o f a leader of a planned arm ed uprising. T he other A w am i
League leaders fled, and on the next day proclaim ed a sovereign and
independent State o f Bangladesh accom panied by a call to the Bengali
people to resist the army.
T h e main targets of the arm y’s attack at D acca w ere the U niversity, the
police headquarters, various bazaars o r shopping areas, m any of the poorer
quarters o f the city and the H indu areas.
A t the U niversity the student halls were attacked. Light small arm s
résistance cam e from one of the halls but was overcom e after som e 35
m inutes. T he arm y shooting continued, how ever, till about 7:00 A M . T he
students killed were buried in a m ass grave dug with a bulldozer, and are
believed to have num bered som e hundreds. T en o f the U niversity staff
w ere taken from their quarters and shot perem ptorily. One o f them , Professor M unirazzam an, was later said to have been shot by accident, and his
relatives were paid com pensation by the P akistan governm ent. T here could
hardly be clearer confirm ation o f the illégal nature o f the shooting s.
T he police headquarters were attacked with tanks. A ny who did not
escape w ere killed. T he bazaars w ere burnt to the ground, as w ere large
3T he “ B iharis” is the nam e given to the U rdu speaking M oslem s who cam e from India to
E ast Pakistan, m ostly from Bihar, at the tim e o f the partition o f India and the founding o f the
State o f P akistan in 1947. T hey tended to rem ain in closely knit groups, concentrated in the
m ain tow ns, continuing to speak U rd u and nev er becom ing fullÿ integrated into the Bengali-speaking com m unity. T here had been o utbursts o f com m unal strife against them a t earlier
periods of tension.
In te r n a tio n a l L a w y e r, Vol. 7 , N o . 2
478
IN TE R N A TIO N A L LAW YER
areas o f the p oorer quarters and the H indu quarters. T he fleeing in­
habitants w ere m achine gunned.
T he shooting continued interm ittently for 48 hours. According to conservative estim âtes, some tw o thousand to three thousand civilians were
killed, T he effect in D acca was a cow ed population, but in other parts of
the country a very différent situation prevailed.
In many o f the main population centers defecting E ast Bengali soldiers
and police, supported by A wam i League vigilantes, seized contro'l. T he
W est Pakistan! army was besieged in their cantonm ents or forced to flee to
seek reinforcem ents. In tw o places arm y com panies were wiped out.
A s inform ation about the conduct of the army in D acca becam e known,
vengeance was w reaked against the Biharis and some frightful m assacres
resulted. In some places, such as Chittagong, it was up to two or three
w eeks before the arm y regained control o f these other centers. W hen they
did so, savage m easures o f repression followed, beginning first in tow ns
and then in the surrounding villages.
T he arm y w ere supported by R azakars, a locally recruited param ilitary
force. In areas w here there w ere Biharis, the R azakars w ere recruited
largely from the Biharis, but in many areas they w ere recruited from
Bengalis who w ere loyal to the W est P akistan connection. L ater, when the
arm y w ent to guard the frontiers with India, the task o f preserving “law
and o rd e r” in the interior fell upon these auxiliaries and upon “ rangers”
and police brought from W est Pakistan.
T he général pattern o f repression was as follows:
(1) People denounced as A w am i League supporters, students or H indus
w ere simply taken out and shot. T he killing of H indus was justified on the
grounds that “ H indus are enem ies o f the people.” T he arm y appear to have
been the victim s o f their own propaganda, which erroneously proclaim ed
that it was the H indus, acting as thé agents o f India, who had led the
Awam i L eague and the people o f E ast Bengal to dem and autonom y. In
fact, ail the leaders o f the Awam i League were M oslem s, and there w ere
few H indus am ong its m em bership.
(2) A ny areas or villages from which shots w ere alleged to have been
fired, o r assistance given to guerrillas, w ere destroyed, and those o f the
inhabitants who did not flee Were shot.
(3) If any attem pt was m ade to blow a bridge, every building within 150
yards was razed to the ground.
(4) Hindu villages were destroyed and those o f the inhabitants who did
not flee w ere shot.
T he scale o f the destruction o f villages was truly colossal, and was not
confined to the initial period. Indeed it was intensified when the guerrilla
forces trained in India returned after June.
In te rn a tio n a l L a w y e r , V ol. 7 , N o . 2
Crimes Against Humanity in Bangladesh
479
T he resuit o f this system atic repression was a flood o f refugees to India
on an unprecedented scale. W e have no reason to think that the Indian
estim ate o f 10 million refugees is exaggerated.
Tw o other features of the repression should be m entioned. R ape is
alleged to have occurred on a very wide scale. T h e num bers m ay have
been exaggerated, but the fact th at a spécial state agency has been created
to deal with the resulting social problem o f unm arried m others is evidence
o f the m agnitude of the problem . Secondly, there are m any accounts o f the
torture o f political prisoners when, as occurred after June, the authorities
arrested rath er than shot suspects. In some cases older suspects w ere m ade
to w atch while the younger detainees w ere beaten.
It is outside the scope of this subject to discuss the legality of the
military assistance given by India to the M ukti Bahini guerrilla forces,
though the C om m ission’s staff study does so. A s is well-known, the events
in E ast P akistan w ere brought to a speedy term ination by the Indian
invasion on D ecem ber 6 and the 12-day w ar leading to the surrender of the
W est P akistan army. D uring the closing days o f the war, there was a
further wave o f shootings of university teachers and o ther professional and
leading persons among the Bengalis.
It is not surprising th at in the early days, after the surrender, there w ere
some savage reprisais. O ne incident, in which form er R azakars w ere bayonetted to death on the Sports G rou nd at D acca, received world-wide
publicity since it occurred in front o f télévision cam éras. This and similar
incidents occurred before any new governm ental authority had been established. W hen Sheikh M ujibur R ahm an was released and returned, he used
ail his authority to stop thèse reprisais, and prom ised that those responsible
for “ w ar crim es” would be dealt w ith by due process o f law.
In considering the atrocities com m itted on both sides, a distinction is to
be draw n betw een crim es com m itted as part o f a system atic policy o f
repression carried out by a disciplined arm ed force, and crim es com m itted
by undisciplined and frenzied m obs. T he distinction is brought out clearly
in the rem arkable accounts given by A nthony M ascarenhas. H e was a
notable journalist from W est P akistan, a C hristian who came originally
from G oa, and who was an official correspondent attached to the 9th
Pakistani D ivision stationed in the Com illa area. H orrified by the brutality
o f the arm y repression, he later fled to the w est and published his account
o f w hat he saw. A m ongst other things, he speaks o f the opérations directed
against the civilian population know n officially as “ kill and burn” m issions.
T here could hardly be clearer evidence o f the violation o f the G en ev a
C onventions.
O ne may w onder how it is possible that a disciplined arm y would carry
out such violations o f hum an rights. T hree factors are perhaps relevant.
In te r n a tio n a l L a w y e r, V ol. 7, N o . 2
480
IN TE R N A TIO N A L LAW YER
F irst, it m ust be rem em bered th at the arm y were exposed to ail the
d ifficu ltés o f an arm ed force, fighting against an insurgent guerrilla force
disguised in civilian clothing, and operating under cover o f a generally
sym pathetic civilian population. Secondly, the arm y did w hat it did in the
cause o f patriotism and in the cause o f religion, and for them this was the
same cause. Pakistan was founded as an Islam ic state, and alm ost its sole
unifying feature was the Islam religion. T hose who were seeking to w eaken
or dism em ber the unity o f the state w ere seen as enem ies o f Islam. The
war against them was a holy war. Thirdly, there was a m assive barrier
betw een the opposing forces in the language barrier. Evidence show s that
the w orst crim es in arm ed conflicts occur betw een people who cannot
com m unicate with each other. O ne has only to think in recent tim es o f the
Mi Lai m assacre, or o f the little publicized destruction o f E ritrean villages,
and annihilation o f their inhabitants by Am haric- speaking soldiers o f the
Ethiopian arm y. W hilst none o f these factors excuse, they m ay help to
explain how these atrocities occurred.
International Pénal Law
M any o f the brutalities com m itted were, of course, violations o f w hat
P rofessor F rank N ew m an term s the International Bill o f H um an Rights,
i.e., the U niversal D éclaration, the two International C ovenants and the
O ptional Protocol. T he C ovenant on Civil and Political Rights recognizes
th at there m ay be some dérogation from thesç rights in time o f public
em ergency “ to the extent strictly required by the exigencies o f the situ­
ation ,” and provided that they do not involve discrim ination. But no déro­
gation is allowed from the articles dealing with the right to life; torture,
cruel and inhum an or degrading treatm ent or punishm ent; the right to
récognition as a person before the law; and the right to freedom o f thought,
conscience and religion. T hese breaches do not, o f course, at present give
rise to any enforcem ent procédures or sanctions.
It can also be argued that som e breaches o f the C onvention on the
Elim ination o f Racial D iscrim ination occurred. T here is a procédure for
subm itting com plaints about violations to a U .N . C om m ittee, but it was
never invoked.
Perhaps the clearest breaches in international law were those o f A rticle
3 o f the G eneva C onventions dealing with “arm ed conflicts not o f an
international ch aracter,” a category into which the hostilities clearly fell
until D ecem ber 6, when the Indian invasion converted the struggle into an
international war. A rticle 3 provides that “ Persons taking no active part in
the hostilities . . . shall in ail circum stances be treated with hum anity without any adverse distinction founded on race, colour, religion or faith, sex,
In te rn a tio n a l L a w ye r, Vol. 7 , N o . 2
Crimes Against Humanity in Bangladesh
481
birth or wealth or any other similar criteria.” T here are also spécifié
prohibitions of m urder, m utilation, cruel treatm ent, taking o f hostages, and
humiliating or degrading treatm ent. U nfortunately, no spécifié sanctions
are provided. E ven the duty to search out and bring to justice persons who
com m itted “grave m easures” does not apply to breaches o f A rticle 3.
It has been widely alleged by the Bangalees, as the people of Bangladesh
are called, that the P akistan arm y was guilty o f genocide. G enocide has
become a highly em otive term widely used to cover any large-scale killings.
U nd er the G enocide C onvention, genocide m eans the killing o f m em bers
o f a national, ethnie, racial o r religious group as such, with intent to destroy
the group in whole or in part; it also includes the doing of certain o ther acts
with that intent, including deliberately inflicting on the group, conditions of
life calculated to bring about their physical destruction in whole or in part.
We belive th at there would be great difficulty in establishing the intent to
destroy the Bengali people as such, though there may have been spécifié
incidents in which the necessary intent could be established. In the case o f
the attacks on H indus, how ever, there seem s to be a strong prim a fa c ie
case o f the intent to destroy them “as such.” T he question w hether the
attacks on Biharis were genocide m ust also be considered. T he Biharis
appear to have been an identifiable national, ethnie or racial group. T he
m ore diffîcult question is w hether acts o f m ob frenzy carried with them the
necessary intent to constitute this crim e. T he C om m ission’s Staff Study
inclines to the view that they do not, but th at individuals who consciously
stirred up the m ob with this intent would be guilty o f genocide.
T he G enocide C onvention had been ratified by P akistan, but at the time
o f these events the governm ent had not enacted the necessary législation in
accordance with A rticle 5, to give effect to the C onvention under Pakistani
law and provide effective penalties. H ow ever, under the C onvention, gen­
ocide is declared to be “a crim e under international law ” and so, at least
w hen the C onvention was ratified by Pakistan, genocide becam e a crim e
u nder international law applicable to ail persons resident within Pakistan.
It follows th at while a person could not be charged under Bangladesh law
with genocide, save under retroactive législation, no elem ent of rétroaction
would arise if charges w ere preferred under international pénal law.
The G enocide C onvention provides expressly in A rticle 4 that persons
com m itting genocide “ shall be punished” w hether they are constitutionally
recognizable rulers, public officiais or individuals. A m ore difficult question
is w hether the defense of “ superior o rders” is available. A clause in the
original draft which would have excluded it was left out. H ow ever, if, as I
believe, the N urem berg Principles are declaratory o f général principles o f
international pénal law, then superior orders would not provide a defense.
In te rn a tio n a l L a w y e r, Vol. 7, N o . 2
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IN TE R N A TIO N A L LAW YER
T his leads us to consider the scope of custom ary international pénal law
and the concept o f “crim es against hum anity.”
T he N urem berg Principles as form ulated by the International Law C om ­
m ission and approved by the U .N . G eneral Assem bly are, of course, the
principal statem ent on this subject, and contain a well-known définition of
w ar crim es and crim es against hum anity.
C rim es against hum anity are defined as “ m urder, exterm ination, enslavem ent, déportation and other inhum an acts done against any civilian popu­
lation or persécution on political, racial or religious grounds [when done] in
the execution o f o r in connection with any crime against peace or any war
crim e.” C rim es against peace are, in effect, acts o f international aggression,
and w ar crim es are “violations o f the laws or custom s of w ar.”
M any em inent authorities take the view that this définition restricts w ar
crim es and, in conséquence, crim es against hum anity to crim es in con­
nection with international wars.
T he C om m ission’s Staff Study respectfully argues to the contrary. In
summarising the argum ents, the need for brevity results in a m ore dogm atic
statem ent than is w arranted:
(1) T he N urem berg Principles them selves dérivé from the C h arter of
the N urem berg International M ilitary Tribunal. A s the Tribunal was set up
to try crim es com m itted in connection with an international war, it is not
surprising th at the term inology used relates more specifically to an inter­
national w ar situation. But, as the Tribunal itself said, that C h arter was
“ the expression o f international law existing at tfie time o f its création.” If
that be right, then the concept o f crim es against hum anity can be o f a m uch
wider scope, and not limited to international wars. Support for this view is
to be found in the ancient doctrine o f hum anitarian intervention, by which
a state could be prevented from acting tow ards its own nationals in such a
way as to shock the conscience o f mankind.
(2) In any case, the laws of w ar are not restricted to international wars.
A lthough the G en eva C onventions do not provide enforcem ent procédures
for breaches o f A rticle 3, this article is nonetheless part o f the laws o f war,
and breaches o f it in international w ar situations are “violations o f the laws
or custom s of w ar.”
(3) T he U .N . A ssem bly in resolution after resolution has declared apar­
theid and various o f the practices carried out under that policy to be “a
crime against hum anity.” T he subject is dealt with fully in the report of the
U N W orking G roup o f Experts which studied apartheid from the point of
view o f international pénal law (E /C N .4/1075, Feb. 15, 1972).
(4) Finally, and perhaps strongest o f ail, the C onvention on the
N on-A pplicability of Statutory Lim itations to W ar C rim es and C rim es
In te rn a tio n a l L a w y e r, Vol. 7 , N o . 2
Crimes Against Humanity in Bangladesh
483
Against H um anity, which entered into force on N ovem ber 11, 1970, p ro ­
vides in Article 1 :
N o statutory limitation shall apply to the follow ing crim es, irrespective o f
the date o f their com m ission:
(a) War C rim es [as defined in the N urem berg Principles] . . .
(b) C rim es against humanity w hether com m itted in tim e o f war or in tim e
o f peace, as they are defined in the N urem berg Charter and confirm ed
by resolutions o f the G eneral A ssem b ly . . . .
Pakistan voted for this C onvention. A lthough P akistan has not so ratified it
as to be bound by the restrictions on periods o f statutory lim itation, it is
subm itted that her affirmative vote involves acceptance that crim es against
hum anity are not restricted to international w ar situations.
T he m atter is o f practical im portance, since it affects the question w heth­
er, if Bangladesh does set up an international tribunal, it will be able to try
under international pénal law persons alleged to have com m itted “ crim es
against hum anity.” In this case, the défendants would be entitled to the
procédural protections for a fair trial provided for in the N urem berg P rin­
ciples.
T rial Procédures
T he prelim inary question is w hether the P akistani générais and senior
officiais should be tried at ail. It is by no m eans certain th at they will be.
Im m ensely im portant political considérations are involved, apart from the
question w hether sufficient evidence is available to establish responsibility
o f the accused for the crim es w hich were com m itted.
In the W estern world there seem s to be a considérable body o f opinion
which thinks there ought not to be any trials o f those alleged to be
responsible. A pproaching the m atter as a lawyer, it is difficult to see why
persons said to be responsible for terrible crim es com m itted on a m assive
scale should not be brought to justice, especially w hen private vengeance
has been deterred by assurances that those responsible would be brought
to trial. It is, o f course, true th at with notable exceptions, such as the trial
o f L ieutenant C alley, it is usually only enem y forces who are brought to
trial for w ar crim es. But this does not seem to be a good reason for bringing
no one to trial at ail. In any event, as we have seen, there is a duty to
punish, and therefore to prosecute, those who are responsible for genocide.
If there is to be a trial, w hat kind o f court should there be? Sheikh
M ujibur R ahm an asked at an early stage in public speeches that an inter­
national tribunal should be sent to Bangladesh to try “ war crim inals.”
U nfortunately, there is no one able and willing to set up such a tribunal.
T he efforts within the U .N . to prom ote the establishm ent of an inter­
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IN TE R N A TIO N A L LAW YER
national criminal court have, for the tim e being at least, foundered. Even
more m odest proposais, such as the U .N . High C om m issioner for H um an
Rights, so sturdily prom oted by A m bassador Rita H auser, have been
blocked. T here are, it seem s, too m any governm ents with too m any skeletons for them to agree to any effective enforcem ent m achinery for human
rights.
T h e C om m ission’s purpose in Bangladesh was to try to persuade the
governm ent that, if they do hold such a trial, they should them selves
constitute an International C o u rt for the purpose, much in the way that the
victorious allies did at N urem berg and T okyo after W orld W ar II. They
w ere urged to go further than the allied pow ers did, and instead of having a
tribunal o f the victors to try the vanquished, to have a tribunal with a
m ajority o f neutral judges. T hey w ere also urged to prefer charges under
international pénal law and not m erely under dom estic law.
T h ere are tw o argum ents which may weigh heavily with them, nam ely,
th at this is the only way o f trying charges o f genocide w ithout retroactive
législation, and it is the only way o f persuading world opinion that the trial
is an act o f justice and not an act o f vengeance.
T h e argum ent that they would be making légal history I found to have
less appeal for them. It tends to be only lawyers, and only some law yers at
that, who are interested in légal innovation. F o r them it is an attractive
argum ent. A t least it could be said that some lasting benefit would be
derived for hum anity from ail the suffering o f the Bengali people, if it helps
to carry us a few paces further along the road to the international enforce­
m ent o f hum an rights.
In te rn a tio n a l L a w ye r, V ol. 7 , N o . 2