Beyond Recognition: Political, Social, and Legal Barriers to Acknowledging the 1971 Bangladesh Genocide

Introduction

After gaining independence through the nine-month Liberation War of 1971, Bangladesh has transformed from a nation once labelled a “basket case” (Fowler, 2017) into a developing country with a population of 160 million people. Despite this remarkable journey, the recognition of the Bangladesh genocide remains a contentious issue, with scholarly discourse on the topic emerging only in recent years. In the immediate aftermath of the war, the atrocities committed were largely overlooked, a silence shaped by complex internal and external political dynamics. A myriad of social, legal, and political factors contributed to the failure to classify the events of 1971 officially as genocide. This article seeks to unpack these multifaceted elements, highlighting how they have influenced both historical narratives and ongoing efforts to recognise what occurred as ‘genocide’.

Social perspective

Historical and International Context

The inaction of the United Nations, coupled with divisions within the Security Council, reflected the tension during the Cold War among global powers, such as the US, the Soviet Union, and China. These geopolitical tensions impeded the issuance of official recognition of the Bangladesh Genocide in 1971, leading to failure in the prevention of mass human rights violations, and undermined the attention of the international community when relevant drafted resolutions were consistently rejected (EFSAS, 2018). Furthermore, as a result of cultural, linguistic, and religious discrepancies alongside the pursuit of self-determination, many were led to view the mass killings as internal affairs or nationalistic conflicts (Hossain, 2015). This perception, justified by principles of sovereignty and non-intervention, diminished the severity of the violations. Additionally, Bangladesh was neither widely recognised as an independent state nor a member party of major international organisations or conventions in 1971, which led to Bangladesh’s restrictive impact and limited attention from the global community.

Limitation and Control of Narrative

The ongoing conflicts and continuing discrepancies between Pakistan and Bangladesh lead to limited narratives and control over the historical accounts of the 1971 genocide. For Pakistan, the genocide did not recall much reflection and was even romanticised as a part of the glorious Muslim past (Shujaat, 2019). Meanwhile, the classification of “internal conflict” resulted in the narrative concentrating mainly on the collaboration of nationalism. For Bangladesh, the division of political and social parties, such as the Bangladesh Awami League and Bangladesh Nationalist Party, led to a serious disagreement over the ownership of the war (Hossain, 2015). Therefore, the inconsistency within Bangladesh itself also prevented a unified narrative of the characterisation of events in 1971. In addition, although there is research regarding the Bangladesh Genocide, most of them are Western-centric and lack objectivity (Gerlach, 2010).

Undetermined Terminology of Classification

No explicit, appropriate, or precise terminology was applied to classify or determine the 1971 atrocity. Various terms, including but not limited to genocide, holocaust, mass killing, extermination, and massacre, were inconsistently adopted. The term “genocide” was not preferred by Bangladeshi nationalists or popular commentators (Bose, 2011). Even if “genocide” was adopted, it was used as a political term without any clear definitional clarity to indict Pakistan for brutal killings. The term usage was not consistent with the definition of genocide in international law nor in line with the veracity of the casualty, which resulted in a divergence and potential contradiction between the legal and social recognition of genocide. The targeted use of  “genocide” intended to be recognised became blurry and deficient in clear constituent elements, giving rise to controversies concerning the recognition of genocide. Even if the discussion is limited to genocide in the legal sense only, the primary determination of war crimes since 1971 in the first place undermined the focus on genocide.

Lack of the Portrayal of Individuals Involved

From the victims’ perspective, being a comparatively marginalised group, the Bengali population lacked protection and faced systematic discriminative policies issued by the Pakistan authority before liberation, which blocked the pronouncement of the Bengali group under pressure (Hossain, 2015). Women, children, and intellectuals were among the main victim groups due to their particular vulnerabilities, which contributed to significant challenges in identifying and documenting the full scope of these victim groups. For perpetrators, the highly controversial amnesty in 1973 and the limited jurisdiction of the International Crimes Tribunal resulted in an incomplete figure of perpetrators (Islam, 2019). The difficulties in seeking justice and the negative trend in criminal trial proceedings further impacted the recognition.

Restrictive Material Conditions in Recognition

Due to the narrative control of authorities coupled with unsuccessful trials, which play an essential role in fact-finding, evidence collection, and preservation, there was a lack of reliable data or documents to support the recognition. Many genocidal sites or events were not officially acknowledged and protected by the government (Dash et al., 2020). Meanwhile, at the time of the Bangladesh Genocide, the concentration of the international community and the rules of international law were primarily concerned with state responsibility, which did not provide efficient access to justice for Bangladesh, even up to now. The restrictive development of international law and customs also determined the lack of international human rights workers, platforms or institutions capable of collaborating on recognition efforts from a civil society perspective in 1971.

Political causes

International Political Affairs Since 1948

In the case of the Bangladesh Genocide in 1971, external relations played an important role in the development of events during the Liberation War and continue to do so in the ongoing fight for recognition of the Genocide until today, as political divisions persist and the formal recognition of the Bangladesh Genocide remains deeply contentious.

Genocide has formally been an affair of international politics since 1948 (Genocide Convention, 1948). However, the United Nations has not yet formally recognised the Bangladesh Genocide. Although there were multiple attempts, the most recent by Sanchita Haque, Deputy Permanent Representative, to hold the Pakistani Army accountable for its past brutalities, for the longest time, the importance of the debate seemed overlooked (Kundu, 2023). Politically, this delay of interest can partly be attributed to the Islamist regime, ruling Bangladesh after the coup in 1975 and their political proximity to Pakistan (Halim, 2024). However, this internal reluctance should not have stopped international ambition in the fight for punishment and prevention of genocidal acts.

With the USSR, India has been one of the most important supporters of the Bangladeshi case. India offered shelter to thousands of refugees and was primarily responsible for the sudden end of the Liberation War on December 16^th, 1971, after increasing the pressure on (West) Pakistan’s military leaders (Bass, 2016). However, after prioritising peace with Pakistan, India missed an opportunity to maintain pressure on Pakistan to pursue justice for the 1971 Bangladesh Genocide, including holding war crime trials. This weakened Bangladesh’s position, forcing it to accept impunity for Pakistani war criminals in exchange for recognition as an independent nation. Today, India is once again supporting Bangladesh’s government in seeking UN recognition of the 1971 genocide (Alamgir & d’Costa, 2011).

Major Western powers, such as the United States (US), still do not officially recognise the Bangladesh Genocide. During the Liberation War, Cold War alliances led the Nixon administration and China to support West Pakistan, enabling President Yahya Khan’s authoritarian military turnover after Sheikh Mujibur Rahman’s election (Wilkinson, 2022). Later, US support continued to be connected to Pakistan’s role in the War on Terror (Halim, 2024). Given these historical actions, these major powers must use their influence to advocate for formal recognition of the genocide by the United Nations, thereby addressing the injustice suffered by victims and survivors.

Denial of Genocide

Richard Sisson and Leo Rose, political scientists, argued that the acts that occurred in East Pakistan (Present day Bangladesh) did not amount to genocide; rather, it was merely repressive actions on behalf of the Pakistani Army. They also claimed that Indian radio reports regarding the situation of East Pakistan were overstated to create an immediate effect on the citizens of East Pakistan (EFSAS, 2018). Similarly, Neil McDermot, head of the International Commission of Jurists, did not recognise the 1971 Bangladesh genocide, arguing that preventing a nation from achieving political autonomy does not qualify as genocide and that there is insufficient evidence of intent to destroy the Bengali people as such (MacDermot, n.d.).

Additionally, Pakistan, under military rule at the time, vehemently denied the allegations of genocide and exerted significant diplomatic pressure to prevent such recognition. The Pakistani government labelled the conflict as a civil war and portrayed its actions as efforts to maintain national unity. The international community, particularly countries aligned with Pakistan, were influenced by this narrative, making it difficult for genocide recognition to gain traction.

United States and Richard Nixon

Gary Bass, in his book ‘The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide’, explained how Richard Nixon and Henry Kissinger supported Pakistan’s authority in conducting the 1971 atrocities in East Pakistan (Bass, 2013). The personal relationship between Nixon and Yahya Khan led to much support for the atrocities. It is estimated that the US Government supplied military equipment to the Pakistani authorities after the genocide began in East Pakistan worth $3.8 million. Nixon considered Yahia Khan as a channel to normalise the connections between the US and China, which had been lost from the Soviet Union during the 1960s Cold War. However, as soon as the war of 1971 ended, the US changed its policy towards Pakistan and recognised Bangladesh as a new independent country. Christiana Spens, a Cambridge scholar, believes that it was a manipulation of Nixon and Kissinger to obscure their culpability in the Bangladesh genocide (EFSAS, 2018). Under such circumstances, there was no initiative to recognise the Bangladesh Genocide in the US. Gary J. Bass, a political scientist, claimed that it was the primacy of international security over justice for the victims of the genocide (Boissoneault, 2016).

Geopolitical Interests vs Recognition of Genocide

After the Liberation War, Bangladesh, being a newborn country separated from Muslim-majority Pakistan, had to deal with the struggle to establish itself in the global community. The UN membership of Bangladesh was initially denied due to China’s veto of the UN Security Council, with other Muslim nations reluctant to accept the newly formed Bangladesh. Pakistan’s alliance with China and religious bond with other Muslim nations were reasons behind such disapproval (Khan, 2023). Since Bangladesh needed urgent global recognition as an independent country, foreign aid, and UN membership, it prioritised its geopolitical benefits. It did not raise a global voice to recognise the Bangladesh 1971 Genocide and prosecute the Pakistani army and its auxiliary forces immediately after the occurrence (Islam, 2023).

Legal causes

Lack of a Clear Legal Framework

While the Genocide Convention was adopted by the United Nations in 1948, its application was still relatively novel and had yet to be applied by the International Court of Justice. The international legal community was hesitant to label conflicts as genocide unless there was overwhelming evidence and a clear political consensus. International reticence to apply the Genocide Convention was largely due to political factors, including Cold War tensions, and legal barriers to state sovereignty interference  (Azad, 2022). Moreover, the definition of genocide under the Convention is quite specific, requiring proof of intent to destroy a particular group, which can be difficult to establish (Billah, 2021). In the case of Bangladesh, while the atrocities have since been well-documented, proving the specific intent required under international law remains a significant challenge.

Proving Mens Rea (Genocidal Intent)

The International Court of Justice requires proof of dolus specialis, or a specific intent, to legally establish an aggressor’s genocide under the Convention (Ambos, 2009). This criterion can only be satisfied if the evidence is “fully conclusive” of the particular intent to commit genocide (International Court of Justice, 2007, para. 209; International Court of Justice, 2015, para. 178).  The term “fully conclusive” represents an extremely high standard of proof. In the only judgments handed down in genocide cases by the ICJ to date, the ICJ has held that this standard has not been satisfied. Proving genocidal intent is a daunting challenge for the prosecution, which is why prosecutors have been noticeably cautious and have preferred charging the factual account of atrocities under crimes against humanity.

Evidential Barriers &  Reluctance to Intervene Due to State Sovereignty

In the immediate aftermath of the 1971 conflict, there was limited international access to the region, making it difficult to collect evidence and document the extent of the atrocities. Although many reports and testimonies emerged, the lack of comprehensive, on-the-ground investigations hindered efforts to build a strong case for genocide recognition.

Furthermore, the concept of state sovereignty has acted as a significant barrier to labelling Pakistani government actions against the populations as genocide (Ranjan, 2016). This principle asserts that states possess authority over their territory and internal affairs, discouraging external intervention. In the context of the 1971 atrocities, states feared that acknowledging Pakistan’s actions as genocide could lead to legal obligations for intervention and jeopardise diplomatic relations (Ranjan, 2016). Additionally, such a recognition could have set a precedent for international intervention in similar situations elsewhere, such as to the more recent events in Syria and Myanmar, where nations have similarly avoided the term ‘genocide’ and prioritised state sovereignty over urgent humanitarian concerns (Zahed, 2021; Sarkin, 2021).

Post-War Reconstruction

Following Bangladesh’s independence, the international community and the newly formed Bangladeshi government focused on rebuilding the country and normalising relations with Pakistan. The priority was ensuring regional stability and securing international aid, making pushing for genocide recognition less of an immediate concern. Additionally, the Shimla Agreement of 1972 between India and Pakistan emphasised bilateral resolution of issues, further reducing the focus on internationalising the recognition of the genocide that had occurred (Wankhede, 2021). Further complicating matters was India’s growing relationship with the Soviet Union. In August 1971, the two countries signed the “Treaty of Peace, Friendship, and Cooperation”,which seemed to signal to the international community that India “would be relinquishing its role as a neutral bystander in the Cold War” (Boissoneault, 2016).

Conclusion

The failure to recognise the 1971 Bangladesh Genocide is the result of an intricate web of social, political, and legal circumstances. From international Cold War politics and narrative control to legal ambiguity and geopolitical interests, these components conspired to distract from the atrocities committed. Despite overwhelming evidence and continued efforts to seek justice, the path to legal recognition remains filled with challenges. The recognition of Bangladesh’s past remains crucial not only for victims and justice but also for the international community to reaffirm its commitment to preventing future genocides. The ongoing dialogue on the 1971 events is a vital testimony to the need for accountability and the importance of international solidarity in the face of human rights violations.

Biliography

Alamgir, J. and d’Costa, B. (2011). The 1971 Genocide: War crimes and political crimes. Economic and Political Weekly, Vol. 46, pp. 38. Available from: http://www.jstor.org/stable/41152283 [accessed 21 August 2024].

Ambos, K.N. (2020). What does ‘intent to destroy’ in genocide mean? International Review of the Red Cross. 102(876). Available from: https://international-review.icrc.org/sites/default/files/irrc-876-ambos.pdf [accessed 1 November 2024].

Azad, E. (2022). Symposium on Bangladesh Genocide and International Law: Criminal Responsibility of the Pakistani Prisoners of War. Cambridge International Law Journal. Available from: https://cilj.co.uk/2022/06/03/symposium-on-bangladesh-genocide-and-international-law-criminal-responsibility-of-the-pakistani-prisoners-of-war/  [accessed 21 August 2024].

Bass G.J. (2013). The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide. Knopf.

Bass, G.J. (2016). Bargaining Away Justice: India, Pakistan, and the International Politics of Impunity for the Bangladesh Genocide. International Security, Vol. 41(2), pp. 140-187. Available from: https://doi.org/10.1162/ISEC_a_00258 [accessed 21 August 2024].

Billah, M. (2021). Prosecuting Crimes against Humanity and Genocide at the International Crimes Tribunal Bangladesh: An Approach to International Criminal Law Standards. Laws 82, Vol 10 (4). Available from: https://doi.org/10.3390/laws10040082 [accessed 1 September 2024].

Boissoneault, L. (2016). The Genocide the U.S. Can’t Remember, But Bangladesh Can’t Forget. Smithsonian Magazine,. Available from: https://www.smithsonianmag.com/history/genocide-us-cant-remember-bangladesh-cant-forget-180961490/ [accessed 19 August 2024].

Bose, S. (2011). The question of genocide and the quest for justice in the 1971 war. Journal of Genocide Research, Vol. 13(4), pp. 393 – 419. Available from:  https://doi.org/10.1080/14623528.2011.625750 [accessed 1 November 2024].

Dash S. R., Hossain M. R., Ferdous N., and Babu M. S. U. (2020). Witness Statements of Bangladesh Genocide, 1971: A Study on Sonaimuri Genocide’. American Journal of Humanities and Social Science Research, Vol. 4(9), pp. 203-208.

European Foundation for South Asian Studies (EFSAS) (2018). Bangladesh’s genocide debate: A conscientious research. Available from: https://www.efsas.org/publications/study-papers/bangladesh%E2%80%99s-genocide-debate;-a-conscientious-research/ [accessed 22 August 2024].

Fowler, P. (2017). Ali Riaz. Bangladesh: A Political History since Independence’. Asian Affairs 15, vol 48 (1).

Gerlach, C. (2010).  Extremely Violent Societies: Mass Violence in the Twentieth-Century World.  Cambridge University Press 2010, pp. 6-7. Available from: https://doi.org/10.1017/CBO9780511781254 [accessed 22 August 2024].

Halim, T. (2024). Why 1971 Bangladesh Genocide is not Recognized by the UN. Eurasia Review. Available from: https://www.eurasiareview.com/25032024-why-1971-bangladesh-genocide-is-not-recognised-by-un-oped/#:~:text=The%20push%20for%20the%20UN,League%20and%20other%20secular%20forces [accessed 22 August 2024].

Hossain, A. A. (2015). Contested national identity and political crisis in Bangladesh: Historical analysis of the dynamics of Bangladeshi society and politics. Asian Journal of Political Science, 23(3), 366-396. Available from: https://doi.org/10.1080/02185377.2015.1073164 [accessed 15 September 2024].

International Court of Justice. (2007). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 43, para. 209.

International Court of Justice. (2015). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 3, para. 178.

Islam, M. R. (2019). National Trials of International Crimes in Bangladesh: Transitional Justice As Reflected in Judgments. Brill, pp. 51-68. Available from: https://doi.org/10.1163/9789004389380 [accessed 1 November 2024].

Islam, M. R. /2023). Factors undermining the recognition of the Bangladesh genocide. The Daily Star. Available from: https://www.thedailystar.net/law-our-rights/news/factors-undermining-the-recognition-the-bangladesh-genocide-3279406 [accessed 20 August 2024].

Khan, M. (2023). The Bangladesh Genocide: Exploring a Forgotten Genocide and the Quest for Recognition. The Geopolitics. Available from: https://thegeopolitics.com/the-bangladesh-genocide-exploring-a-forgotten-genocide-and-the-quest-for-recognition/ [accessed 22 August 2024].

K

undu, K. (2023). The Past has yet to leave the present: Genocide in Bangladesh. Harvard International Review. Available from: https://hir.harvard.edu/the-past-has-yet-to-leave-the-present-genocide-in-bangladesh/ [accessed 22 August 2024].

MacDermot, N. (n.d.). Crimes against humanity: Bangladesh 1971. Center for Bangladesh Genocide Research. Available from: https://cbgr1971.org/index.php/genocide/genocide-articles/20-crimes-against-humanity-in-bangladesh [accessed 1 November 2024].

Mahmood, S. (2019). Revisiting East Pakistan and the War. Dawn. Available from: https://www.dawn.com/news/1471537  [accessed 22 August 2024].

Ranjan, A. (2016). Bangladesh Liberation War 1971. India Quarterly, Vol. 72 (2), pp. 132-145.

Sarkin, J. J. (2021). The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions. Routledge.

Wankhede, R. (2021). Opinion: The Shimla Agreement Was A Strategic Blunder. Youth Ki Awaaz. Available from: https://www.youthkiawaaz.com/2021/02/shimla-agreement-a-strategic-blunder/  [accessed 1 September 2024].

Wilkinson, A. (2022). Bangladesh. A world without genocide. Available from: https://worldwithoutgenocide.org/genocides-and-conflicts/bangladesh  [accessed 22 August 2024].

Zahed, I. U. M. (2021). Responsibility to protect? The international community’s failure to protect the Rohingya. Asian Affairs, 52(4). Available from: https://doi.org/10.1080/03068374.2021.1999689 [accessed 1 November 2024].