Pakistan used Nazi killer Eichmann's argument
Pakistan went to the International Court of Justice and presented notorious Nazi murderer Eichmann's defense argument rejected a decade ago to rescue the 195 officers Bangladesh wanted to try. It also promised the court to set up a judicial tribunal to try them for their atrocities, a promise it never intended to keep.
When Pakistan found its back against the wall on the issue of trying its war criminals, it swiftly moved to the International Court of Justice in The Hague and argued on the line of defense of notorious Nazi killer Adolf Eichmann to deny Bangladesh's right to try the 195 Pakistani army officers held prisoners of war (POWs) in India.
Before going to The Hague, Pakistan had also promised to set up a judicial tribunal to try the accused persons, a promise it broke at its convenience. It was a statement made solely to deceive The Hague court.
One main objective of Pakistan was to stop at any cost the transfer of the POWs to Bangladesh which was preparing for trial of these killers including passing of a law named International Crimes Tribunal Act in 1973. Evidences were so enormous that there were no doubts about their conviction.
It is at this point that Pakistan went to the International Court of Justice in May 1973 and argued that only Pakistan and no other country had the exclusive right to try these military personnel.
Pakistan put forward the flawed argument that since these army officials had committed the crimes in Pakistan territory as Bangladesh did not exist then, only Pakistan had the right to try them, according to the proceeding of the case filed by Pakistan.
Therefore, Pakistan said, if India transferred these POWs to Bangladesh for trial, it would be an illegal act on part of India. So Pakistan wanted the International Court of Justice to pass an order blocking the imminent transfer of the prisoners, according to the case proceedings.
Pakistan's argument was, in fact, the same that was put forward by the defense of the Gestapo chief Adolf Eichmann who was responsible for the implementation of Adolf Hitler's infamous Final Solution involving the deportation, robbery and murder of approximately six million Jews in the Second World War.
Eichmann was captured by Israeli agents in Argentina, brought over to Israel, and put on trial. His counsel told the court that Israel had no jurisdiction to try the war criminal as no state named Israel existed during the Second World War. As such no law of Israel was violated by Eichmann.
This argument was however tossed out by the court. It said any crime against humanity or war crime is a grievous offense everywhere in the world and so any country can try such criminals.
And Pakistan in probability knew that its line of argument had been nullified a decade ago in Jerusalem during the Eichmann trial and this is why it held hostage the Bangladeshis stranded in Pakistan and blocked Bangladesh's membership in the UN using the veto power of China.
The Hague court held a hearing on June 4 in which the Pakistani attorney general argued that "the territory now constituting Bangladesh was universally recognized as part of Pakistan and therefore, Pakistan has the exclusive jurisdiction to hold such trials."
India declined to appear before the tribunal but sent a letter contending that the court had no jurisdiction to entertain Pakistan's suit, wrote SM Burke, a former Pakistan ambassador and professor of the University of Minnesota, in his article "The postwar diplomacy of the Indo-Pakistani war of 1971."
This legal wrangling strained the Indo-Pak relationship afresh as an Indian spokesperson charged that in taking the issue to the International Court of Justice, Pakistan had committed a breach of the Simla Agreement 1972 following the 1971 war under which the two countries had promised to settle their differences through bilateral negotiations.
Pakistan was so desperate to get its POWs freed that in the summit between Indian prime minister Indira Gandhi and Pakistan president Zulfikar Ali Bhutto during the Simla Agreement, Bhutto is said to have proposed that India negotiate to reduce the number of military men sent to war crimes trial.
Pakistan later withdrew its petition from The Hague court when Bangladesh yielded to the hostage pressure and agreed to return the POWs in exchange of the release of its 203 hostages.
Pakistan's going to The Hague court in May followed the Bangladesh-India joint declaration of April 17, 1973. The declaration read: "The two governments are ready to seek a solution to all humanitarian problems through simultaneous repatriation of the Pakistani prisoners of war and civilian internees, except those required by the government of Bangladesh (meaning the 195 POWs), repatriation of the Bangalees forcibly detained in Pakistan and repatriation of Pakistanis in Bangladesh, that is, all non-Bangalees who owe allegiance and have opted for repatriation to Pakistan."
Three days later, Pakistan in a statement rejected the right of Bangladesh to try any among the prisoners of war on criminal charges because "the alleged criminal acts were committed in a part of Pakistan." But Pakistan expressed its readiness "to constitute a judicial tribunal of such character and composition as will inspire international confidence" to try the persons charged with the offences, SM Burke, the former Pakistan ambassador wrote.
In the same breath, Pakistan threatened to try Bangalis stranded in Pakistan for "subversion, espionage and high treason."
It also used the recognition of Bangladesh as a bargaining chip for the release of the POWs. It is then that Bhutto sought the Supreme Court's advice in July 1973 on the legal aspect of according recognition to Bangladesh. The court unanimously gave the decision that there was no legal bar. Pakistan National Assembly then passed a resolution authorizing Bhutto to recognize Bangladesh "when it was in the best interest of Pakistan to do so," Pakistan Times reported on July 11, 1973.
Bhutto then played his hand once again saying: "recognition of Bangladesh was not yet appropriate because of the detention of Pakistani POWs in India and Bangladesh government's insistence of the trial of selected prisoners of wars."
Bangladesh finally signed a tripartite agreement in New Delhi on April 9, 1974. Bangladesh, represented by foreign minister Dr Kamal Hossain, said the crimes that these 195 POWs did constitute crimes against humanity and genocide and that they should be held accountable and tried.
Pakistan's state minister for defence and foreign affairs Aziz Ahmed said Pakistan "condemns and deeply regretted any crimes that may have been committed." He said Pakistan prime minister had appealed to the people of Bangladesh to forgive and forget the mistakes of the past.
In response, Bangladesh Prime Minister Bangabandhu Sheikh Mujibur Rahman said he wanted a fresh start in relationship saying: "the people of Bangladesh knew how to forgive."
In view of this greatness of the Bangali nation, it was then decided that the 195 POWs would be returned to Pakistan with the commitment that Pakistan would try its own soldiers.