The Post-1971 Non-Recognition of the Bangladeshi Genocide: a Legal, Political, and Social Analysis

People protesting in Dhaka, © Nahmad Hassan, 2024, via Pexels

The Post-1971 Non-Recognition of the Bangladeshi Genocide: a Legal, Political, and Social Analysis

24-09-2024

Martina Riccardi

Bangladesh Campaign Team,

Global Human Rights Defence

1.Introduction

Following Bangladesh’s declaration of independence in 1971, a 9 month period of war ensued, where an estimated 3 million Bengalis were killed, approximately 300,000 women were raped, and 10 million refugees fled into India because of violence perpetrated by the Pakistani military and Bengali accomplices. However, the violence, which amounts to genocide, has never been formally recognised by either the Pakistani government or a collective international community represented by mainstream international organisations, such as the United Nations (hereinafter “the UN”). The reasons for the non-recognition of the Bangladesh Genocide since 1971 are complex and multifaceted, encompassing social, political, and legal dimensions. This article will delve into each of these perspectives, analysing the key factors that hindered the recognition of the genocide.

 

2. Social perspective

2.1 Systematic biases and collective trauma in divergent society

The power imbalance between the Global North and the Global South fosters selectivity of memory and justice, which frequently ignores or minimises the pain of marginalised communities, reinforcing systemic inequalities (Mookherjee, 2015). This continued marginalisation of the Bangladesh Genocide in global consciousness demonstrates how historical narratives can easily be constructed to serve the interests of the powerful rather than seek justice for the oppressed. This selective memory fosters silence and prevents the global community from confronting past atrocities committed by regimes, resulting in a larger social divide and historical amnesia (Kundu, 2023).

 

A collective trauma of the people is revealed through large accounts and various forms of direct and indirect human rights violations, pushing them away from acceptance. The divergent social structures are knitted by intersectionality in Bangladesh. The 98 percent majority Bengali-speaking community faced the direct horrors of genocide by the West Pakistani government in 1971, and the numbers, yet to be recognised, are enormous, with deaths ranging between 300,000 and 3,000,000 (Respinti, 2024). Added trauma is contributed by prominent identities such as religion, creating a superior-inferior narrative spread in the perpetrator state to justify its actions (Kundu, 2023). The substantial impact upon intellectuals, academia, and students became a contributing factor to the loss of knowledge, creating rifts in the ‘right’ sources of information (Hussain, 2010). The aforementioned divergences in socio-political factors created deep-rooted crevices, which preserve the adversity, making it systematically easy to trigger pain and trauma. A recent example of the 2024 student protests, which turned violent, was fuelled by the political and social use of the term ‘Razakars’ – historically used to describe Pakistan’s collaborators during the 1971 genocide. The term’s resurgence highlighted deep unhealed societal trauma, stigma, and persisting pain from the genocide. Although the protests were primarily triggered by the reinstatement of a controversial job quota system that reserves 30 percent of government jobs for descendants of war veterans, sparking student outrage over perceived favouritism and hindrances to merit-based hiring, the resulting violence underscored ongoing frustrations with both historical trauma and systemic inequalities.

 

2.2 Sexual violence taboos and documentation deficiencies

Certain taboos may have played a role in impeding the recognition of the genocide. While rape and sexual violence were claimed to have been widespread, discussions regarding such issues are highly taboo within the more conservative and religious society of Bangladesh (Saha, 2023). These restrictions may have negatively impacted the environment for open discussion regarding the genocide, especially when it was committed through sexual violence. Testimonies from impacted women would aid in recognition, however, the social taboo prevents victims from coming forward. Even if victims do come forward, it may still be difficult to verify the claims due to the lack of documentation or forensic evidence.

 

Furthermore, the absence of comprehensive historical records has significantly impeded the recognition of the genocide. The violence perpetrated on a more rural and dispersed level was harder to document due to the lack of communication channels, deficiency in education in rural Bangladesh, and general wartime chaos (Choudry & Basher, 2002). This lack of documentation and uncertainty about the numbers hindered the validity of the Bangladeshi accounts and the convincingness of the claims of genocide. Although the establishment of the International Crimes Tribunal of Bangladesh contributed to the investigation of the crimes during wartime, its actions did not gain much recognition or attention from the international community.

 

3. Political perspective

3.1 Geopolitics and international relations

In the 53 years since the Liberation War, the desires and aspirations of the Bangladeshi people for justice have remained captive to a political battle for power and a constant rewriting of history (Kori, 2022). However, the precise political barriers to genocide recognition in this context remain a point of contention within existing scholarship (Fowler, 2016; Batabyal 2021; Halim, 2023).

 

The 1971 Bangladesh Genocide transpired during the Cold War when the US and its allies valued geopolitical interests over addressing the atrocities committed by Pakistan, a key ally (Batabyal, 2021). This geopolitical influence, along with a lack of accountability in the political arena, to some degree determined the marginalised status of the Bangladesh Genocide in the global narrative. Today, the Global North’s sociopolitical power over international discourse reinforces this marginalisation (Kennedy, 2021). Current events that serve Western interests frequently overlook discussions of past atrocities in the Global South, such as the Bangladesh Genocide (Fowler, 2016).

 

Several geopolitically relevant countries have strong economic and political ties (and relationships of convenience) with Pakistan, including United Nations Security Council (UNSC) members. For example, in 1971, powerful countries, including the US and China, were pro-Pakistan and arguably used their influence in the UNSC to prioritise national interests over a formal recognition of the Bangladesh Genocide. On a larger canvas, the polarisation on ideological fronts amongst the UNSC members has also played a role in decisions pertaining to when, why, and how genocide is recognised or not.

 

On the domestic level, Bangladeshi lawyer, politician, and academic Tarana Halim refers to the military strategic value of Pakistan to the West as one of the underlying reasons for hesitancy (Halim, 2023). Pakistan was deemed to be a key asset in the War on Terror with Afghanistan, though Halim contests this, arguing that Pakistan was aiding the US whilst also providing the Taliban with weapons, which in turn facilitated the successful overtaking of Afghanistan (Halim, 2023). In addition to this, the current political instability and human rights concerns in Bangladesh could further muddle the waters, making recognition a less relevant and more complicated matter in the international community.

 

3.2 Insufficient but ongoing domestic recognition

Despite the previous disregard of the international community, there are several states making efforts to ensure recognition of the genocide at a domestic level. The US has taken steps towards genocide recognition. On October 14th, 2022 Representative Steve Chabot, in conjunction with co-sponsors, introduced Resolution 1430 to the House of Representatives, which “condemns the atrocities committed by the Armed Forces of Pakistan against the people of Bangladesh from March-December 1971” (H.Res.1430, 2022). Similar developments were seen in the British Parliament in 2022, with a motion proposed to recognise the atrocities, though it was unsuccessful (Ani, 2022). Earlier this year, the High Commissioner of Bangladesh to the UK, Saida Muna Tasneem, advocated for the reintroduction of such a motion – a move that would represent a positive progression from earlier reluctance based on diplomatic fallout and associations with the colonial era. In 2023, Dutch politician and former Member of Parliament, Harry Van Bommel, visited Bangladesh with a European delegation with the intent to investigate the role of the Pakistani Army in the atrocities of 1971. This investigation was  the initiative of the European Bangladesh Forum, with results to be presented to the Dutch government. If the Netherlands, being one of the first countries to recognise the independence of Bangladesh, were to officially recognise the genocide, it would increase the chances that other European countries would follow the same. The ongoing domestic recognition indeed provides more hope for the international recognition of the Bangladesh Genocide. However, it is important to remember that recognition is still not widespread enough and there is a long way to overcome geopolitical dilemmas and obtain generally accepted acknowledgement.

 

4. Legal perspective

4.1 Ambiguous legal authorities of recognising genocide

 

At the crossroads of legal and political challenges to the recognition lie the institutional limitations and complexities of international law. Recognising “genocide” carries significant legal and moral obligations, requiring a robust response that international powers were ill-prepared or unwilling to undertake (Totten & Parsons, 2009).

 

Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide  recognises genocide as “[…] acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […].”[1] The recognition of the crime can be done by various authorities, including states, international courts and tribunals, domestic courts, non-governmental organisations (hereinafter “NGOs”), and international organisations like the UN (O’Brien, 2022). Unfortunately, there is no specific international legal mechanism or treaty exclusively focused on the recognition of genocide. Although the Convention defines genocide and imposes obligations on States to prevent and punish it, it does not declare a clear process for the formal recognition of past genocides.

 

Since the 50th anniversary of Bangladesh’s liberation, several international NGOs, including the Lemkin Institute, Genocide Watch, the International Coalition of Sites of Conscience, and the International Association of Genocide Scholars (hereinafter, “IAGS”), have recognised the Bangladesh genocide (Genocide Watch, 2021). According to IAGS rules, any resolution to recognise a genocide requires 51 percent of the total vote from its members, and the Bangladesh Resolution initially failed to gather the required votes in 2022 (Azad, 2024). However, in 2023 this rule was amended to lower the minimum participation threshold to 21 percent. In the second attempt, 218 out of 626 IAGS members participated in the vote, which represents 34.8 percent of the total membership (Azad, 2024). While the Resolution recognising Bangladesh’s genocide ultimately passed, the disheartening reality is that 65.2 percent of IAGS members did not vote at all, which highlights a persistent lack of awareness among global genocide scholars regarding the 1971 genocide.

 

While certain international organisations, such as the UN, have been hesitant to recognise genocides readily, they might provide a reference to a possible formal and legal approach to recognise the Bangladesh Genocide: establishing an international tribunal to investigate and adjudicate the crimes, gathering thorough evidence supporting the genocidal intent, engaging in international advocacy, raising awareness regarding these crimes, thus initiating international legal proceedings.

 

4.2 Undtermined procedure of recognising historical genocides

Unlike other acknowledged genocides which were decided upon by international courts or tribunals, no such legal institution was created for the Bangladesh genocide. Without similar mechanisms and clear alignment with the legal definition, the 1971 brutality in Bangladesh remains unrecognised as genocide under the Convention. Additionally, the Convention states that the responsibility for a breach of the Convention can only be applied to crimes that have occurred after the States have brought the Convention into force. However, the International Court of Justice has repeatedly emphasised that the Convention enshrines principles that are part of customary international law as well as peremptory norms, binding all States to have obligations to prevent and punish genocide. Although Bangladesh became a party to the Convention in 1998, more than 25 years after the occurrence of these crimes, the customary nature of provisions of the Conventions may still impose positive obligations to act on relevant states, including Bangladesh and Pakistan, and give rise to state responsibility when the States fail to comply.

 

For individual criminal responsibility, the Convention may also provide a legal source for perpetrators’ accountability for their crimes. While the crimes in Bangladesh were committed more than half a century ago and face the principle of non-retroactivity and statutes of limitation, their recognition is still urgent and possible. In the Mpiranya case (2014), the International Criminal Tribunal for Rwanda (hereinafter, “the ICTR”) held that the passage of time does not minimise the international community’s responsibility and ability to bring the suspects of the crime of genocide to trial. Meanwhile, Article 29 of the Statute of the International Criminal Court (hereinafter “the ICC”) also acknowledges the non-applicability of any statute of limitations. Although the Bangladesh Genocide satisfies the jurisdiction of neither the ICTR nor the ICC, these legal institutions offer instruction that in these mass atrocities, it is essential to punish the perpetrators to bring a sense of justice to the survivors of this crime.

 

5. Conclusion

For over 50 years, the 1971 Bangladesh Genocide has failed to receive the international recognition commensurate with its severity. This article examines the reasons for this lack of recognition through social, political, and legal lenses.

 

Socially, historical biases and societal disparities in Bangladesh have hindered efforts to acknowledge the genocide. Systemic inequalities, inadequate mechanisms for addressing sexual violence, and a lack of comprehensive evidence and documentation have all contributed to this challenge. Politically, Bangladesh’s ongoing geopolitical challenges and its relatively vulnerable international status have created significant obstacles. Strong ties with powerful states, driven by their own interests, have further complicated the path to recognition. While there has been some progress at the domestic level, restrictive institutions and international legal frameworks indicate that full acknowledgement remains a distant goal. Legally, the Genocide Convention offers a clear – although very limiting – definition of genocide, but the legal institutions entitled to legally recognise such atrocities have yet to effectively address the 1971 Genocide. Challenges remain in the procedures for recognising historical genocides and in implementing state and individual responsibility.

 

These factors, though distinct, are deeply interconnected, creating a formidable challenge in acknowledging the 1971 Bangladesh Genocide. However, recognising this atrocity is a crucial step for the international community in its pursuit of justice and historical accountability.

 

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