Geoffrey Robertson report 2 - Pakistani military crimes

This is the second post on the Geoffrey Robertson QC report reviewing the International Crimes Tribunal. The first one, concerning the independence of the report, can be seen here. The full report can be accessed here. 

This post looks at what it has to say about the Pakistan military - to some extent a forgotten party when it comes to issues of accountability for crimes committed during Bangladesh's 1971 War of Independence.

This section of the report - which excoriates the Pakistan military, and calls for the investigation of their crimes as well as their prosecution (and please note all italicized emphasis has been added) does supports Robertson's claim that he is coming to this report with an independent mind.

Crimes committed by the Pakistan military
Robertson strongly criticizes the Pakistan military. In relation to 'operation search light', which was the action taken by the Pakistan military on 25 March 1971, at the very beginning of the war, he says (at p.31):

Without doubt, “Operation Searchlight” was a crime against humanity: a deliberate and systematic attack on a civilian population by the state and its military agency, which killed and seriously injured thousands of men, women and children (the exact number is impossible to estimate). It went far beyond any conceivable defence of “military necessity”: the government had the option of continuing negotiations, of imposing martial law, or (if there was any evidence of a treasonable conspiracy) of interning or prosecuting the Awami League leaders. Instead it opted to terrorise the civilians of Dhaka by persecuting intellectuals and community leaders, killing law enforcement officers and making genocidal attacks on Hindus that forced millions of them to flee the country. Although the operation lasted only 48 hours, it remains an international crime whose perpetrators have never been punished.  

President Yahya Khan, who gave the order, was replaced by Bhutto after Pakistan’s surrender to India in December 1971. He was put under house arrest, but this disgrace was punishment for losing the war and not for unleashing “Searchlight”. For that crime he was never prosecuted, and he died in 1980. General Tikka Khan, architect of the operation and commander of the eastern military, bears even greater responsibility than his President: he was not drunk and was not stupid. His callous calculations of the groups to be killed – Professors and students, non- Urdu speakers, Hindus - made this “Butcher of Bengal” as guilty as General Mladic, the Bosnian Serb who “ethnically cleansed” Srebrenica. Tikka Khan went straight into Bhutto’s cabinet, as Defence Minister and later (after Bhutto’s own execution in 1979) became Secretary General of the P.P.P. and later the Governor of the Punjab. When he died in 2002, he was given a State funeral with full military honours. Considering how high his reputation still stands in Pakistan, he might be an appropriate candidate for a posthumous prosecution – to set out authoritatively the calculated inhumanity of “Operation Searchlight”.

There is a footnote to the question of 'posthumous' (i.e one following the death of a person) prosecution which states

International Courts have never been tasked with posthumous prosecutions, although the Lebanon Tribunal is undertaking trials in absentia and there is not much difference – indeed, a posthumous prosecution would be a form of in absentia proceeding, in which the deceased would be represented as effectively as possible, the prosecution wouldcollect and present damning evidence which might not otherwise be made public, and the judges would deliver a verdict that would carry weight with historians. Any unfairness would be mitigated, unlike the Bangladesh Tribunal in absentia trials, (see later) by the fact that the defendant could not be execute or suffer at all, other than by an indelible blot on an undeserved posthumous reputation.

The report goes on (at p.33) to look at the Pakistan military operations after 'operation searchlight'.

“Operation Searchlight”, concentrated in Dhaka, had not restored calm: it turned what was a constitutional debate into one of the twentieth century’s most brutal civil wars. The army began it, and once it realised that the “whiff of grapeshot” had set off a Bengal-wide conflagration, it inhumanely and foolishly decided to replicate the attacks throughout the country, targeting Awami League members, students and intellectuals, and Hindus. When rebel-held Bengali towns were captured, the civilians were massacred – men, women and children, with some of the cruellest killings carried out by local Biharis, in revenge for massacres that they had suffered at the hands of the Mukti Bahini. As the year dragged on, the army (now commanded by General Niazi) committed atrocity after atrocity. Civilians (especially Hindus) who had been captured were then lined up for execution on the banks of rivers, which would wash their blood away, as well as their bodies. Evidence (some from Pakistan’s own judicial enquiry) confirms that Hindus as such were specifically targeted in army commands thus supporting the US Consulate allegation of genocide.

(This paragraph refers in a footnote to the the International Commission of Jurists report, 'The events in East Pakistan, 1971')

The report carries on to refer to an important distinction between the Pakistan military's violence and the initial violence of Bengalis against the Biharis

There was mob violence on the other side, involving Bengali mob attacks on Biharis who were seen as army accomplices. As the International Commission of Jurists notes, however “The atrocities committed against the population of East Pakistan were part of a deliberate policy by a disciplined force. As such they differed in character from the mob violence committed at times by the Bengali’s against the Bihari’s”.

The report though does goes onto state that "as the year progressed and the Mukti Bahini struck back with assistance from India, this force of nationalist fighters was also guilty of atrocities and of atrocities that were in some cases no different in kind or description to those which are being punished in the ICT."

Holding the Pakistan military to accounts
The report also considers the issue of the criminal accountability of the Pakistan military officers, narrating how they avoided prosecution in Bangladesh. Significantly, it comes to the conclusion that (a) no amnesty was provided to them; (b) the UN should set up an ad hoc international criminal tribunal responsible for their investigation and prosecution and (c) the Bangladesh government should seek reparations from the Pakistan government.

On p.45 the report starts the story in the following way: 

"On April 17, 1973, the State of Bangladesh announced that it would proceed to try [the 195 army officers held in India] “for genocide, war crimes, crimes against humanity, breaches of Article 3 of the Geneva Convention, murder, rape and arson”. The government’s press release explained: “Trials shall be held in Dhaka before a Special Tribunal, consisting of judges having the status of judges of the Supreme Court. The trials will be held in accordance with universally recognised judicial norms. Eminent international jurists will be invited to observe the trials. The accused will be offered facilities to arrange for their defence and to engage counsel of their choice, including foreign counsel.”  …. although the legislation which established this tribunal promised trials that were fair according to the standards of the time, any form of foreign trial of its army officers was a spectacle that Pakistan was not prepared to accept. It claimed that such a trial would be in breach of Article 118 of the Geneva  Convention, although Article 119 makes clear that prisoners of war must face trial for war crimes,  so long as that trial is fair. It also disputed Bangladesh’s jurisdiction, because “the alleged criminal acts were committed in a part of Pakistan”. This does not prevent a successor state - or any other state – taking jurisdiction to try war crimes, genocide, or crimes against humanity. Nonetheless, Pakistan launched a legal action at the International Court of Justice in an attempt to stop the trials of its army officers, and Bhutto sneered that the Tribunal would deliver “palm tree justice” - which he threatened to emulate by putting some of the stranded Bengalis on trial for treason. There were fears that the army would again run amok if its senior officers faced justice, even international justice, and some UN members (most notably China, nervous about the prospect of retribution for its own massacres in Tibet in 1960) denounced the proposed trials as a breach of the UN Charter - which of course they were not, although the UN had turned a blind eye while international crimes were being perpetrated by Pakistan’s army. 

In the end, diplomacy diffused the crisis with its usual compromises and lack of attention to principle. There was a “Tripartite Conference” between India, Pakistan and Bangladesh convened in April 1974. Sheikh Mujibur spoke of reconciliation and agreed to drop his demand to put the 195 army officers on trial. In return, he received an apology from Pakistan, which “condemned and deeply regretted any crimes that may have been committed”99 and renewed a pledge to “constitute a judicial Tribunal of such character and composition as will inspire international confidence” to consider evidence of army criminality.  

And so the Delhi deal was done, and the 195 alleged war criminals were repatriated to Pakistan,where of course they were never put on any sort of trial. Bhutto had set up an Inquiry, chaired by Chief Justice, Hammodur Rahman, into the East Pakistan military disaster, and had hint that they might be prosecuted on its recommendations, but he had no intention of following through and in any event he was afraid to challenge the army, beyond retiring some of the officer responsible for the defeat. He received the Judicial Commission’s report – which was so devastating that he dared not publish it - and actually promoted Tikka Khan who had been responsible for “Operation Searchlight”. Bhutto needed the army to maintain internal order, and it did not object when he secured the release of its officers in return for recognising Bangladesh.

The report then goes on at p.47 to state that:

Surprisingly, and probably by oversight, the ICTA was not repealed. Notwithstanding the agreements between India and Pakistan in 1972-3, and the Delhi Tripartite Agreement in 1974, and the devious dealings after Mujibur was killed, I can find no evidence in these events that any amnesty binding in law was offered or granted for crimes against humanity committed during the civil war.  

….. Although the Tripartite Agreement made in Delhi in 1974 is often described as an “amnesty”, at least for the Pakistani suspects, it is no such thing. It has been described by historians as “implicitly recognising” that none of the 195 “would ever be tried or held accountable,” but any binding amnesty must be clearly expressed and not merely “implicit”. True it is that Bangladesh agreed to abandon its demand for the 195 prisoners in Indian custody, but it did not thereby abandon the idea of putting them, or others, on trial at some time in the future. There can, in any case, be no amnesty for an international crime like genocide. The deal in Delhi was not a bar to prosecutions, however many years later, under ICTA.

In the conclusion of the report (at p.120), Robertson says that Pakistan officers should be amongst those whom a an ad hoc international criminal Tribunal, established by the United Nations, should investigate and prosecute and he goes onto say (at p.122) that

"Perhaps it is time for Bangladesh to seek reparations, in the same or some other forum, for the Pakistan army crimes of genocide that so blighted its birth and its future as a nation."