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Case Study On The Trial Of Pakistan Prisoners Of War

Facts of the case
This case between Pakistan and India started after the Bangladesh Liberation war. Initially, India was neutral against the uprising of Eastern Pakistan. But then the protests broke out in Eastern Pakistan, now known as Bangladesh, many refugees from East Pakistan came to India the estimate is about 10 million. India tried diplomatic and economic support towards East Pakistan now Bangladesh as the atrocities such as operation searchlight started. India also raised this plight at the UN and with other nations to put a stop to the genocide occurring in East Pakistan.

Looking at India's trial to stop Pakistan; on 3rd December 1971, Pakistan Air Force raided Indian Bases near the western frontier as a pre-emptive strike. After that India simultaneously launched a full-blown attack on the Western front as well as on the Eastern front.

On 16th December, the Indian representative Lt General Jagjit Singh and Pakistani representative General A.A.K Niazi signed the "The instrument of surrender" meaning that Pakistan forces in East Pakistan have surrendered to Indian Military forces with 90,000 Prisoners of Wars. Indian General Manekhshaw assured that the Pakistani Prisoners of Wars will be treated as per the Geneva Convention. Lt General Jagjit Singh Aurora also gave his assurance that the personnel who will surrender to the Indian forces will be treated with dignity and respect that they are entitled to under Geneva Convention to which India is a signatory.

On March 29, 1972, the Bangladeshi government announced a formal plan to try the 1,100 Pakistani military people, including general A.A.K Niazi and Rao Farman Ali Khan for the crime against humanity they committed in East Pakistan. India agreed to hand over Prisoners of War against whom evidence of such crimes was presented by Bangladesh.

Many of the 4,00,000 Bangladeshis stuck in west Pakistan became Hostages to use for bargain against Bangladeshi Government. In November 1972, Bangladesh and India decided to repatriate some 6000 family members of the Prisoners of War and Pakistan simultaneously at their end to this process released 10,000 Bangladeshi women and children. Bangladesh, however, told India that it would not release the 195 Prisoners of War accused of war crimes.

On August 28, 1973, India and Pakistan signed the Delhi Accord, which followed the repatriation for the release of stranded Bengalis and Pakistan Prisoners of War held in either of the nations respectively. Later the government of Bangladesh appointed Mr S.S Pal and Mr Serajive Haque as the chief government prosecutors for the war crimes tribunals to try Pakistani Prisoners of War for the genocide that occurred in Bangladesh. On 17th April 1973, the Bangladeshi government announced its decision to try the Pakistani Prisoners of War for crimes against humanity.

Name of case: Case concerning the trial of Pakistan Prisoners of war
Parties Name: Pakistan v. India 1973

Bench Description:
President Lachs
Judges Forster, Gros, Bengzon, Petrén, Onyeama, Ignacio-Pinto, Morozov, Jiménez De Aréchaga, Sir Humphrey Waldock, Nagendra Singh, Ruda
Registrar Aquaron

Analysis
The case of Pakistan v. India, 1971 encompasses two main concepts; which are in our present times not widely discussed: "Prisoners of war" and "Crimes related to humanity" in other words known in this case also known as war crimes. Such concepts are only discussed in a retrospective effect because such crimes are not committed in modern times.

Another important concept, in this case, is Repatriation of the prisoners of the war which in this case was of 195 Prisoners of war among the 90,000 such Prisoners of War, against whom Bangladesh put allegations of crimes against humanity committed in the Genocide of Bengali Muslims. But all the Prisoners of War including the 195 accused of such crimes were to be returned to Pakistan as per the instrument of surrender signed between India and Pakistan.

Geneva Convention
Geneva Convention plays an important role in this case. It safeguards the rights of the prisoners of war captured by either party in this case by India. Following are the rights that the prisoners of war are entitled to under the Geneva Convention:
  1. Article 14 of the convention says that " Prisoners of War are entitled to in all circumstances to respect for their persons and their honour
  2. In captivity, the PoWs must not be forced for any information under Physical or mental coercion.
  3. Using the POWs as human shields are strictly prohibited.
  4. They must be provided with all the health facilities and any other facilities that might be necessary for their standard of life.
Another important concept that is important for the analysis of this case is "Crimes against humanity" or in this case "war crimes". That took place in Bangladesh by Pakistani forces. It is considered one of the greatest genocide that might have occurred after World War II.

The terms Crimes against humanity and war crimes in their strict sense are very different. The case itself has failed to differentiate between the two. "War crimes" in its strict sense means all different type of crimes that might have been committed during an ongoing war; such as killing civilians, attacking a hospital etc. Whereas "Crimes against humanity" need not be committed during a war, they can emerge out of peace or protest situations, such as Apartheid, genocide, rape etc.

In this case, we see that both the terms are used in a similar sense because the genocide that occurred in Bangladesh directly or indirectly resulted in a war between Pakistan and India. It can also be said that "crimes against humanity" is a category of "war crimes"

Release and Repatriation of Prisoners of war
Article 118 of Geneva Convention 1949 says that "prisoners of war shall be released and repatriated without delay after the cessation of the active hostilities"

It is also important to note that the case related to war crimes and the prisoners of war had no direct connection. Indira Gandhi at that time said that India merely interfered with the conflict of Bangladesh and Pakistan because it was indirectly causing trouble for India. Although the war that raged between Pakistan and India in 1971 was because of the atrocities being committed in Bangladesh; end of the war resulted in a wholly different conclusion; resulting in the Shimla agreement and had no direct Nexus to the War crimes committed in Bangladesh.

From the above inference, we can say that India acted as a mediator between Pakistan and Bangladesh.

The Delhi Agreement 1973
The Delhi Agreement was a trilateral agreement signed between India, Pakistan and Bangladesh on 28th August 1973, ratified by only Pakistan and India. The agreement allowed the repatriation of the Prisoners of War.

Important case laws
Nuremberg trial: Jurisdiction of Nuremberg Tribunal
This case is one of the most important cases in the history of International law. The Nuremberg Tribunal was established to try and punish the war criminals of Germany for the crimes they committed against the Jews in Germany.

Two important principles were laid down in the case
  1. Any person who commits a crime is liable for the punishment under International law will be held guilty.
  2. The fact that a person committed such an act in the pursuance of the superior orders does not relieve him from taking responsibility for such a crime.
The second principle of the Nuremberg Trials is very important and has been used on numerous occasions.

Bosnian Genocide Case (Bosnia and Herzegovina v. Serbia and Montenegro)
In this case, Serbia was accused to have attempted to exterminate Bosnian Muslims; the population of Bosnia and Herzegovina in a mass killing.

Comparison of the case
There has not been any case to which this case can be directly compared with the given concept of "prisoners of war". Though there have been many instances throughout history which relates to the given concept. There just has been one case that comes to the nearest in comparison.

Bosnian Genocide Case
Similarity
In this case, Serbia contended that it was not involved in the Massacre of Bosnian Muslims and also that the International court of justice had no jurisdiction to try this matter. To very similarity in the discussed case of Pakistan v. India, Pakistan contended that the International Court of Justice had no jurisdiction to try this case.

Another similarity that can be seen is the case's remote relation to the massacre or genocide of the Bengali Muslims in Bangladesh similar to the Massacre that occurred in Serbia.

Dissimilarity
The Bosnian Genocide case was directly related to the Massacre of the Bosnian Muslims in Serbia. Whereas, the case of Pakistan v. India was only related to the prisoners of war, who were the result of the war between the two nations.

Conclusion
The ratio of the case given by the court:
There was no ratio of this case because Pakistan informed the ICJ that both India and Pakistan Governments held discussions and came to an agreement on the issue. Pakistan government also informed the court that they are not going ahead with the proceeding of the case of the war criminals. Following are the events that finally concluded the case of the Prisoners of war.

On April 10th, 1974, Bangladesh's position was formalised through the tripartite agreement between Bangladesh, India and Pakistan. It was reported internationally that the Pakistan Government offered an apology to Bangladesh on the same day.

Article 14 of the agreement noted that the prime minister of Pakistan would visit Bangladesh in response to the invitation to visit Bangladesh to promote reconciliation between Pakistan and Bangladesh. India also handed over all the prisoners of war to Pakistan along with the 195 war criminals with the mutual understanding between Bangladesh and Pakistan that they will be punished and prosecuted by the Pakistani authorities. At that time, Bangladesh continued the trial of local collaborators and hoped that Pakistan would keep its promise and try those soldiers for the horrific crimes they committed against humanity.

Own viewpoint
My viewpoint to this case is that India's intervention in the ongoing conflicts between Bangladesh and Pakistan is what caused the emergence of this case. The case itself is of not much importance but the events that took place before and after the case are of much importance to this date. If we see chronologically the Genocide that occurred in Bangladesh tainted every humane value we ever learnt.

While reading the estimates I came to know that about 3-4 lakh people were killed in brutal ways and about 2 lakh women were raped. Bangladesh took a very lenient way to deal with these atrocities. In my opinion, it should have approached the international court of justice and request an international tribunal similar to the Nuremberg trials. To this date, Bangladesh has not been able to punish the war criminals of the operation searchlight.

There should have been even stricter actions taken against the 195 war criminals. Also in my opinion India lost a lot of opportunities in the war they won at that time. In 1971 after the surrender by Pakistani forces India had the leverage and it has been many times criticised that India would have gained a lot more than it asked for in the Shimla agreement.

This case points towards a very big loophole in our International justice system that it doesn't have any stricter laws related to crimes against humanity and war crimes. All we have in this regard are principles and old judgements of the tribunals.

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