Prosecuting 1971 rapes and other sexual violence crimes

In 1971, between 200,000 and 400,000 women were raped by members of the Pakistan army and its local collaborators. Many Bengali women were taken away by them and made to become sex slaves of the officers and soldiers for the duration of the war. These women received cruel, inhumane and degrading treatment. Also, rape and sexual slavery committed by the Pakistan army and its local collaborators during 1971 led to an estimated 25,000 forced pregnancies among Bengali women.

Prosecuting sexual violence crimes: The international law context
Article 27 of the Fourth Geneva Convention of 1949, related to the protection of civilian persons in times of war, explicitly prohibits wartime rape and enforced prostitution. These prohibitions were reinforced by the 1977 Additional Protocols to the 1949 Geneva Conventions.
The Rome Statute of the International Criminal Court, 1998 gives the International Criminal Court jurisdiction over genocide, crimes against humanity and war crimes. Articles 7 and 8 of the Rome Statute have included rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence both as a crime against humanity (explicit) and a war crime (implied).
In 1998, sexual violence, in general and beyond rape, was recognised for the first time as a crime against humanity in the Prosecutor v. Jean-Paul Akayesu by the International Criminal Court for Rwanda (ICTR). Further, in 2001, in the Prosecutor v. Dragoljub Kunarak, Radomir Kovak and Zoran Vukovic the International Criminal Court for the Former Yugoslavia (ICTY) established that even a single rape may constitute a crime against humanity. Sexual violences were held to fall under the crimes against humanity through various means, for example, as enslavement, as sexual slavery, as persecution, as forced marriage, or even as torture.
In 1998, sexual violence, in general and beyond rape, was also recognised for the first time as a war crime in the Prosecutor v. Furundzija by the ICTY. Similarly, as discussed above, a single rape may constitute a war crime.
War rape can also be considered as an act of genocide, as the definition of "genocide" will show. As per Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 and Article 6 of the Rome Statute, if it can be proved that wartime rape was used as a means to destroy, partially or totally, a specific group of people, it will come under the international definition of "genocide."
The ICTR in Prosecutor v. Jean-Paul Akayesu, established a precedent that rape is an element of the crime of genocide.
On June 19, 2008, the 15-member UN Security Council unanimously adopted Resolution 1820 (2008) which clearly states that rape can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide.

Prosecuting wartime sexual violence crimes under the 1973 Act (Bangladesh)
Section 3(2)(a) of the International Crimes (Tribunals) Act of 1973 lists rape, enslavement, torture and other inhumane acts (which might be considered as sexual violence crimes too) as "crime against humanity." The 1973 Act does not, however, mention rape or sexual violences in its list of "war crimes" contained in section 3(2)(d), but does leave room for the crime to be so included.
Further, since, the definition of genocide as provided under the 1973 Act is similar to Article 2 of the Genocide Convention and Article 6 of the Rome Statute, rape and other sexual violence crimes may well constitute as genocide under the 1973 Act too.

Rape and sexual violence crimes on trial: The challenges for Bangladesh
To put the sexual violence crimes on trial after 40 years of independence, Bangladesh might face a number of challenges. A few major challenges are discussed below:
a) Difficulties in investigation
There has been an active social silence regarding the sexual violence crimes committed by the Pakistan army and its local collaborators. Such culture very often leads to the "politics of active national forgetting" of the violence committed against Bengali women in 1971. Evidences might have been ruined, distorted or hidden, personally as well as nationally. This in turn goes a long way to not to prosecute the activities of the perpetrators of sexual violence crimes in Bangladesh. Also, there may be political consequences when the perpetrators are found to have polarised under the banner of a particular political party or parties. Therefore, investigation of sexual violence crimes might become difficult for Bangladesh.
However, it may be mentioned that even the International Criminal Court has been criticised for its failure to properly investigate and charge crimes of sexual violence in many cases, such as, Prosecutor v. Thomas Lubanga Dyilo, Prosecutor v. Katanga & Chui, etc.

b) International conspiracy to deny the history
There have recently been conscious efforts at the international level to undermine the history and reality of 1971. Even the very occurrence of rape and sexual violence crimes committed against Bengali women during the 1971 War of Liberation is being denied to serve the interest of the perpetrators.
Holocaust denial is illegal in a number of European countries, such as France, Belgium, Czeck Republic, Poland, etc. Even the countries which were among the perpetrators of the Holocaust -- Austria, Germany, Hungary and Romania -- have strictly banned Holocaust denial. Many countries also have broader laws that criminalise genocide denial (for example, Germany, Portugal, Switzerland, etc). In addition, the European Union has issued a directive to combat racism and xenophobia, which makes provision for member states to criminalise Holocaust denial with a maximum prison sentence of between one and three years [European Union Framework Decision for Combating Racism and Xenophobia, 2007].
Bangladesh, therefore, needs to enact similar laws criminalising any person, organisation or political party for active denial of international crimes committed by the Pakistan army and its local collaborators in 1971.

Conclusion
Sexual violence crimes should be treated as the most henious crimes by the civilised nations of the world. The perpetrators of such crimes should never remain unpunished. Hence, the sexual violence crimes committed by the Pakistan army and its local collaborators against the Bengali women during the 1971 War of Liberation must be prosecuted.

The writer is Prosecutor, International Crimes Tribunal, Bangladesh.