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
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
Pakistan v. India 1973
Judges Forster, Gros, Bengzon, Petrén, Onyeama, Ignacio-Pinto, Morozov, Jiménez
De Aréchaga, Sir Humphrey Waldock, Nagendra Singh, Ruda
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
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 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
- Article 14 of the convention says that " Prisoners of War are entitled
to in all circumstances to respect for their persons and their honour
- In captivity, the PoWs must not be forced for any information under
Physical or mental coercion.
- Using the POWs as human shields are strictly prohibited.
- 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
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
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.
important principles were laid down in the case
- Any person who commits a crime is liable for the punishment under
International law will be held guilty.
- 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
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
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.
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.
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.
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
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.