CASE STUDY ON PAKISTAN V. INDIA, 1973. A CASE CONCERNING TRIAL OF PAKISTANI PRISONERS OF WAR.

Subject title: Public International Law. Submitted to: Prof. Dr. V. Balakista Reddy.

NALSAR University of Law, Hyderabad

BACKGROUND OF THE CASE The Indo-Pakistani conflict was sparked by the Bangladesh Liberation war, a conflict between the traditionally dominant West Pakistanis and the majority East Pakistanis. The Pakistan army conducted a widespread genocide against the Bengali population of East Pakistan, aimed in particular at the minority Hindu population, leading to approximately 10 million people fleeing from East Pakistan and taking refuge in the neighbouring Indian states. The East Pakistan-India border was opened to allow refugees safe shelter in India. The governments of West Bengal, Bihar, Assam, Meghalaya and Tripura established refugee camps along the border. The resulting flood of impoverished East Pakistani refugees placed an intolerable strain on India's already overburdened economy. The Indian government repeatedly appealed to the international community, but failing to elicit any response, Prime Minister Indira Gandhi on 27 March 1971 expressed full support of her government for the independence struggle of the people of East Pakistan. The Indian leadership under Prime Minister Gandhi quickly decided that it was more effective to end the genocide by taking armed action against Pakistan than to simply give refuge to those who made it across to refugee camp. The main Indian objective on the western front was to prevent Pakistan from entering Indian soil. There was no Indian intention of conducting any major offensive into West Pakistan. The war stripped Pakistan of more than half of its population and with nearly onethird of its army in captivity, clearly established India's military dominance of the subcontinent. In spite of the magnitude of the victory, India was surprisingly restrained goals the establishment of Bangladesh and the prospect of an early return to their homeland of the 10 million Bengali refugees who were the cause of the war. In announcing the Pakistani surrender, Prime Minister Indira Gandhi declared in the Indian Parliament "Dacca is now the free capital of a free country. We hail the people of Bangladesh in their hour of triumph. All nations who value the human spirit will recognize it as a significant milestone in man's quest for liberty." India took approximately 90,000 prisoners of war, including Pakistani soldiers and their East Pakistani civilian supporters. 79,676 prisoners were uniformed personnel, of which 55,692 were Army, 16,354 Paramilitary, 5,296 Police, 1000 Navy and 800 Pakistani Air Force (PAF). The remaining prisoners were civilians - either family members of the military personnel or collaborators. The Pakistani military suffered further humiliation by having their

90,000 prisoners of war (POWs) released by India only after the negotiation and signing of the Simla Agreement on July 2, 1972. In addition to repatriation of prisoners of war also, the agreement established an on-going structure for the negotiated resolution of future conflicts between India and Pakistan (referring to the remaining western provinces that now composed the totality of Pakistan). In signing the agreement, Pakistan also, by implication, recognized the former East Pakistan as the now independent and sovereign state of Bangladesh. Simla Agreement: In 1972 the Simla Agreement was signed between India and Pakistan, the treaty ensured that Pakistan recognized the independence of Bangladesh in exchange for the return of the Pakistani POWs. India treated all the POWs in strict accordance with the Geneva Convention, rule 1925. It released more than 90,000 Pakistani Prisoners of War in five months. Further, as a gesture of goodwill, nearly 200 soldiers who were sought for war crimes by Bengalis were also pardoned by India. The accord also gave back more than 13,000 km of land that Indian troops had seized in West Pakistan during the war, though India retained a few strategic areas. Hence, Pakistan has approached International Court of Justice for repatriation of those 195 Pakistani Prisoners of War.

BRIEF FACTS Government of Pakistan initiated proceedings in International Court of Justice against Government of India by an application to Registrar on 11 May 1973. Pakistan in its application stated the facts and the grounds, for initiation of proceedings before ICJ as the subject of the dispute relates to charges of genocide against 195 of the over 92,000 Pakistani prisoners of war and civilian internees being held in India. The central issue is whether or not Pakistan has an exclusive claim to exercise jurisdiction in respect of such persons by virtue of Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly on 9 December 1947, to which both India and Pakistan are parties. It stated the facts in detail as, on 21 November 1971, taking advantage of the internal situation in East Pakistan. And acting in breach of her obligations under the United Nations charter, the Government of India launched direct armed attacks against Pakistan's Eastern

Province. These armed attacks continued to increase until Pakistan was forced to take measures in self-defence. The fighting spread to West Pakistan and resulted in a state of war between India and Pakistan on 3 December 1971. India notified the existence of state of war to Pakistan through the Government of Switzerland on 4 December 1971. On 11 December 1971, the Chief of Staff of the Indian Armed Forces, called upon the Pakistan Forces in East Pakistan to surrender to the Indian army, in a radio broadcast he gave his "solemn assurance" that the personnel who surrendered would be treated with the dignity and respect all soldiers are entitled to, and that India would abide by the provisions of the Geneva Conventions. Consequently, upon this cal1 by General and wishing to avoid any further bloodshed and destruction, the vastly outnumbered Pakistani forces under the Eastern Command surrendered to the Indian army on, 16 December 1971. On December 12 1971 the very next day to the Generals solemn assurance Indias External Affairs Minister assured it in Security Council by saying "India stands committed to dealing with the enemy forces according to Geneva Conventions." He also recalled that India's Chief of Army Staff had assured west Pakistani troops in East Pakistan of their safe evacuation to West Pakistan, if they surrendered. Consequent upon his call, on 16 December 1971 the Eastern Command of the Pakistan army surrendered, and a large number of armed personnel became prisoners of war of India which was the sole belligerent power in the international conflict with. The prisoners of war, including civilians paid out of the resources of the armed forces, according to the information received through the International Committee of the Red Cross, number 81,888. In addition, India continues to detain over 10,000 civilians, among them 6,500 women and children. On 16th December India made a cease-fire call, the next day Pakistan troop ceased firing and hostilities were ceased. On 21st December 1971, Security Council of UN took cognizance of the matter with the independence of Bangladesh. The Security Council adopted resolution No. 307, in respect of the conflict on 21 December 1971, in which it noted the cessation of hostilities and called upon India and Pakistan to withdraw from territories occupied by them. The Security Council also called for the observance of the Geneva Convention. Pakistan contended that in January 1972, over 92,000 Pakistani prisoners of war and civilian internees, who were under Indian custody, were transferred to Prisoner of War Camps in India. India, as the sole Enemy Power, had the right to detain the Pakistani prisoners of war until such time as hostilities ceased. However, in spite of the cessation of hostilities, which the Security Council acknowledged on 21 December 1971, India continues

to hold the Pakistani prisoners of war in contravention of the Geneva Convention. Pakistani civilians, who voluntarily placed themselves under Indian protection on the basis of the assurance of earliest possible repatriation to West Pakistan, were wrongfully interned and continue to be illegally and improperly detained. State of Bangladesh declared their intention of holding trials for genocide and "crimes against humanity of a number of Pakistani prisoners of war then in Indian custody. The Government of Pakistan cannot agree to the trial of its prisoners of war by "Bangladesh" since Pakistan has exclusive jurisdiction over its nationals in respect of any acts of genocide allegedly committed in Pakistani territory. Moreover, the concept of crimes against, humanity is not even remotely applicable. Bangladesh leaders continued to make declarations regarding the trial of Pakistani Prisoners of War. They made many a declarations which were published in the newspapers; Pakistan contended that the aim of the Bangladeshi leaders is to try Pakistani army personnel. Pakistan also alleged that Bangladesh declared the intention to try Pakistani prisoners of war and hold trials for crimes against humanity and genocide with the help of India who were then in India. Pakistan also disagrees with it as Pakistan exclusive jurisdiction over its nationals in respect of any acts of genocide allegedly committed in Pakistani territory. But then also Bangladesh leaders continued to make declarations regarding the trial of Pakistan prisoners of war (POW). On 17 January 1973 India told the United Nations that those persons who had committed grave crimes such as genocide and crimes against humanity were, in its view, not entitled to any immunity under the Geneva Convention and that the Joint Command of Bangladesh and Indian forces had the right to demand their evacuation on behalf of the Government of Bangladesh so that they could be taken into custody pending appropriate legal action under the law of the land and under international law. On 17 April 1973, the Dacca Radio announced that 195 Pakistani prisoners of war would be tried in Bangladesh for committing genocide and crimes against humanity and this was confirmed by the Foreign Minister of Bangladesh. India and Bangladesh made a joint statement that they were ready to seek a solution to all humanitarian problems through simultaneous repatriation of Pakistani prisoners of war and civilian internees, except those required by the Government of the People's Republic of Bangladesh for trial on criminal charges. The repatriation of Bengalis forcibly detained in Pakistan and the repatriation of Pakistanis in Bangladesh, i.e., al1 non-Bengalis who owe allegiance and have opted for repatriation to Pakistan. Even if Pakistan unilaterally repatriated 617 Indian POWs of West front on 1 December 1972 to India according to Article 118 of third Geneva Convention which reads that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities and

also Article 134 of fourth Geneva Convention, whereas India repatriated only 550 Pakistani POWs then. The number of detained Pakistani Prisoners of war is 195 according to the Indian press reports who were captured in the Eastern Front.

ISSUES RAISED Pakistan alleged that India as the Detaining Power has, therefore, sought to place conditions on the repatriation of Pakistani prisoners of war after the cessation of active hostilities and has acted in breach of its international obligations under Article 118 of the Third, and Articles 133 and 134 of the Fourth Geneva Convention. India is also in breach of the aforementioned Conventions since it has not complied with the provisions regarding humane treatment under the Conventions. It also said that 129 Pakistani prisoners of war have been shot by Indian Guards of whom 45 succumbed to their injuries. In addition, 120soldiers and civilians have died of illness. Over-crowding, unhygienic conditions, malnutrition and inadequate medical facilities which characterize the captivity of Pakistani soldiers, according to reports received through the International Committee of the Red Cross. Pakistan condemned and didnt accept that India has a right to transfer its prisoners of war for trial to Bangladesh and claimed that by virtue of Article VI of the Genocide Convention, persons charged with genocide shall be tried by a Competent Tribunal of the State in the territory of which the act was committed. In which Pakistan meant that it has Exclusive jurisdiction to the custody of persons accused of the crimes of genocide, since at that time the acts are alleged to have been committed, the territory of East Pakistan was universally recognised as part of Pakistan. Further it held that the Genocide Convention do not warrant the holding of over 92,000 persons in custody in breach of their right under international law to be repatriated, merely because of allegations against a few regarding acts of genocide. And also that Bangladesh cannot have a competent court because of the charged situation which was then and Pakistan quoted some situations in which Chief Counsel of East Pakistan was not allowed to enter Dacca on November 13 1972 and other eminent persons accused of war were awarded brutal punishments. Moreover a competent tribunal is a one which applies international law, have impartial judges and allow the accused to be defended by the counsel of their choice. And there will be no retrospective application of law. The facts of this case have raised many a questions in relation to interpretation and application of the Genocide Convention. The jurisdiction of International Court of Justice is invoked by the party approached i.e. Pakistan under Article IX of the Genocide Convention which says in accordance with which disputes between contracting parties relating to

interpretation application or fulfilment of the convention, shall be submitted to International Court of Justice at the request of any of the parties to the dispute. Hence, ICJ entertained the case as it has the jurisdiction under Article 36 (I) of its Statute. Pakistan prayed the court to adjudge and declare that Pakistan has an exclusive right to exercise its jurisdiction to try 195 Pakistani POWs or any number of Pakistani nationals in Indian custody on accusation of crimes of genocide in Pakistani territory by virtue of the Convention and no other government can be competent to try or exercise jurisdiction. And also denied the charges framed against the accused as crimes against humanity or war crimes as inapplicable. And claimed the transfer of 195 or any number of prisoners for trial to Bangladesh as illegal as Pakistan has possessing competent jurisdiction over the trial of 195 POWs. It furthered contented that the tribunal cannot implement international law retrospectively which violates the Declaration of Human Rights and even if India legally transfers Pakistani Prisoners of War Bangladesh cannot fulfil the requirements of a competent court as the situation is so charged and as Bangladesh was a new born state and an atmosphere of hatred towards Pakistan prevailed, hence Bangladesh couldnt keep up to the standards of an international law as a competent tribunal. On 11 May 1973 Pakistan requested f or interim measures of protection in accordance with Article 41 of the Statute, read with Article 66 of the rules of Court to the Government of Pakistan against the Government of India relating to the continued detention of over 92,000 Pakistani Prisoners of War and civilian internees and the threatened transfer of one hundred and ninety-five or any other number of such persons to Bangladesh for the purpose of trial for alleged acts of genocide and crimes against humanity. It also prayed for the process of repatriation of prisoners of war and civilian internees to be continued and not to be interrupted by virtue of charges of genocide against certain number of individuals detained in India and they should not be transferred to Bangladesh which is not competent to try and in its Pakistans exclusive jurisdiction to hold a trial. On this request made by Government of Pakistan, the Government of India was notified about the request for interim measures and the subsequent hearings but India declined to jurisdiction of the court as it has not consented and that there was no legal basis for the case instituted whatever might be the jurisdiction and hence government of India denied to attend the hearings or meetings which were to be held. But Government of Pakistan approached for postponement of the interim measures to facilitate negotiations. For claiming interim measures the issue is meant to be of urgency inherently but hear Pakistan prayed for postponement of interim measures hence, the court by 8 votes to 4 fixed time limits for written proceedings of both the parties as 1st October 1973

for Government of Pakistan to file a memorial and 15th December 1973 for counter memorial by Government of India. A request for postponement in relation to interim measures can only have the legal effect of withdrawal, which must take priority over al1 other considerations, particularly when India had declined to be present was opined by Judge Nagendra Singh. But Judge Petren gave a dissenting opinion opined that the postponement of interim should be accepted as the issue is of urgency and the Court cannot decide the jurisdiction immediately as its the issue between India and Pakistan and cannot comment or make a move regarding Bangladesh a recognised independent state according to international law, which is recognised by 70 states and a member of many specialized agency of United Nations. And it is essential to invite both the parties to negotiations. And moreover judge opined that Pakistan was correct asking time limits and also; as Pakistan hadnt expressly withdrawn the proceedings the court cannot stop the proceedings.

JUDGEMENT Both the Governments of Pakistan and India couldnt make it possible to file a memorial and counter memorial respectively. Hence, by an Order of 29 September 1973 the President of the Court extended the time- limit to 15 December 1973, at the request of the Agent of Pakistan, the time-limit for the filing of the Memorial and extended to 17 May 1974 the time-limit for the filing of the Counter-Memorial. By a letter dated 14 December 1973 to the Registry which is received on the same day from the agent of Pakistan, referred to negotiations between the Government of Pakistan and the Government of India which had resulted in an agreement signed at New Delhi on 28 August 1973, and, with a view to facilitating further negotiations, requested the Court to make an Order officially recording discontinuance of the proceedings in this case. Whereas the Government of Pakistan had thus informed the Court in writing that it is not going on with the proceedings instituted. Whereas the Government of India, while it has addressed certain communications to the Court through its Ambassador in Hague, has not yet taken any step in the proceedings. Hence, because of the discontinuance of the proceedings by the Government of Pakistan instituted by it on by an application dated 11 May 1973 was ordered to be removed from the list on the request of the applicant or the party approached.

CONTRIBUTION OF THIS CASE TO INTERNATIONAL LAW

Pakistan and India have demonstrated that an exceptionally difficult international dispute can be settled by diplomatic negotiations even where the relations between the disputing nations are not exactly cordial. The present case exemplified the disputes that arise while settling different international in different manners which lead to ultimate confusion in the dispute resolution. The attitudes of both the Governments in this case shows that it is the intervention of a mediator than an intervention of an international judge could resolve the disputes and the series of disagreements between them. In this case the judicial role of the court couldnt solve the problems between the parties from legal angle. Hence its a true example of International Law in which the laws can be obliged with mutual free consent; this case reflects the basic principles of international law like pacta sunt servenda and good faith are upheld in resolving the core dispute between India and Pakistan. Though initiation of proceedings in ICJ couldnt resolve the actual dispute between the two States, negotiations and its Delhi Agreement on August 28 1973, is responsible for the resolution of the dispute between the two and three states. India has steadfastly taken the position that the problems which exist between Pakistan and India arising out of the 1971 hostilities in East Pakistan can only be resolved after Pakistan's recognition of Bangladesh as an independent sovereign nation. The Delhi Agreement contains no explicit provision with respect to this matter. However, in two provisions which call for subsequent decisions (the future negotiations respecting the repatriation to Pakistan of additional non-Bengalis; and the ultimate fate of the 195 Pakistani prisoners of war charged with the commission of war crimes), the Agreement specifies that "Bangladesh has made it clear that it will participate in such a meeting only on the basis of sovereign equality." It would appear that once India and Bangladesh have demonstrated their good faith by the implementation of the provisions of the Delhi Agreement, and the problem of the 195 Pakistani prisoners of war has been resolved, formal recognition of Bangladesh by Pakistan can be expected. Thus, the problems concerning the repatriation of Bengalis from Pakistan to Bangladesh and the repatriation of the vast majority of the Pakistani prisoners of war and civilian internees held by India have been fully resolved; the problems concerning the repatriation of the non-Bengalis from Bangladesh to Pakistan and the ultimate fate of the 195 Pakistani prisoners of war charged with the commission of war crimes have been given temporary solutions and will require further negotiations; and the problem with respect to Pakistani recognition of Bangladesh has been settled by implication although not actually covered by the Agreement. Thus from this case it is crystal clear that this case has pointed out the lacunae in the Genocide Convention, its applicability and interpretation are questioned in

this case. Even then both the states made it possible to resolve the dispute by negotiations and finally an agreement which is obliged by both the parties putting a permanent solution for the dispute of Trial of Pakistani Prisoners of War.