Of Atrocities and Obligation: Accusing Pakistan for ‘Double-Edged’ Violation?

Unlike its domestic analogy, International Criminal Law (ICL) has refuted the principle of 'non-retrospectivity', establishing the trial-based justice for the jus cogens crimes (genocide, war crime, crime against humanity etc). Moreover, to emphasise the trial for international crimes, ICL is now embarking on the erga omnes principle by virtue of which any state assumes obligation to bring the perpetrators under investigation and prosecution. The failure or unwillingness to prosecute the perpetrators gives birth to another wrongful act (omission) of the state that it must cease immediately.

Considering this perspective, Tapos Kumar Das, Assistant Professor and Chairman, Department of Law, Jahangirnagar University, has undertaken a provocative study in his recently published book The Obligation to Investigate and Prosecute Past Atrocity: Examining State's Response to the 1971 Bangladesh Genocide (published by ELCOP, July 2020). The major intervention of this work lies in that he accused Pakistan of the violation of substantive and procedural obligation arising out of the atrocities committed by the Pakistani Army in 1971. The author argues for a "double-edged" breach by Pakistan; one is the violation of jus cogens norms by committing such atrocities itself and another is the unwillingness to bring perpetrators under judicial measures.

The author developed this argument by dividing the book into four interrelated parts. It begins with a powerful construction of how Bangladesh's factual existence as a 'state' should be taken into consideration for determining the 1971 liberation war as International Armed Conflict (IAC). In doing so, the author strongly stands against labeling the past atrocities as merely an 'internal disturbance' by Pakistan which, as he argues, is a misrepresentation of facts. To prove it as an International Armed Conflict (IAC), he sidesteps the self-determination criterion under the Additional Protocol II 1977 (as it was enacted after the 1971 atrocities) and argues for its basis in the Montevideo criteria. 

The second part of the book discusses the legal basis of the crimes that took place in 1971's armed conflict arising out of the violations of relevant international laws. One pressing point that the author highlighted here is the pattern of 'partial and total' genocide committed against the Bengali and Bengali Hindus respectively. He argues that such an act of pulling down the Hindu religious group formed 'genocidal intention' under the Genocide Convention while claiming '[t]his geopolitical and religious enmity culminated in the Pakistani army's specific intention for the total annihilation of the Bengali Hindus in 1971'.

In the third part of the book, the author claims that the principle of pacta sunt servanda in article 26 of Vienna Convention on the Laws of Treaties, 1969 along with the erga omnes obligation binds Pakistan to undertake appropriate substantive and procedural measures for the violation of international laws. As a result, Pakistan's denial to the fulfillment of its obligations created a double-edged violation, not only for the crimes they committed but also for the omission not to undertake procedural obligations. To end the continuing wrongful act, he therefore demands that 'Pakistan needs to fulfill its procedural obligations…by pursuing appropriate investigative, prosecutorial, and remedial measures for the 1971 atrocities'.

The final part of the book reflects upon the response to the 1971-atrocities from different international organisations, states and the politics surrounding the two phases of post-war mechanism. He also focused on the formation of the International Crimes Tribunals Bangladesh as well as addressed some of the criticism regarding the tribunal's fairness and biasness. The author finally asked, albeit ambitiously, for minimal reparations as a form of 'apology'.

The aforementioned aspects make the book unique from many perspectives. However, there are some points that the author did not elaborate. For example, the author used the Montevideo criteria to prove the 1971-atrocity as an IAC but the relationship of these criteria with the IHL's purpose of defining IAC and NIAC has not been elaborated in the book. Further, the author discussed the external obstructions in initiating prosecution and the latter resumption mobilised by the people. But why these extra-legal factors are important in assessing the responsibility of any state to try such heinous crimes 'without excuse' are not addressed in the book.

It seems the author has to counterbalance the depth of the book with its breadth and the points as mentioned above are perhaps not elaborated for this constraint. In terms of its depth, the book is undeniably a masterful account of atrocities and obligations that may illuminate the readers interested in the study of crime and genocide across the discipline.

The reviewer is an LLM student at Jahangirnagar University.