Civilian atrocities committed during the Bangladesh liberation war in 1971 seemingly bear the hallmarks of the crime of genocide prohibited and punished under the UN Genocide Convention, 1948. The international community has a curious habit of displaying its rhetorical reaction, 'never again', in the aftermath of every commission of genocide, unmatched by any decisive international action. This is attributable to the global geo-political conflict of interests of states prevailing at the time of any genocidal incident, and the Bangladesh genocide has also been a victim of this politics of international inaction.

Following the physical liberation of Bangladesh on 16 December 1971, about 82,000 surrendered Pakistani troops, including the alleged 195 war criminals, were taken as POWs in the Indian army custody. Bangladesh was yet to be a member of the UN and the Geneva Conventions 1949. The UN required both India and Pakistan to strictly follow the Geneva Conventions for the treatment of POWs. India had the sole responsibility for their safety and welfare and surmised that it might not have full control over POWs' treatment once transferred to Bangladesh. India had an underlying strategic interest in repatriating POWs to Pakistan, which it did under the New Delhi Agreement with Pakistan in 1973 and the Shimla Pact in 1974. This repatriation deprived Bangladesh of any opportunity to prosecute these alleged war criminals for committing genocide.

The criminal responsibility for war crimes including genocide eclipsed around the geo-politics of Pakistan and India together with their allies the US, China, the USSR, and the Muslim world. During the 1971 liberation war, the US supported the unity of Pakistan in the UN bodies, supplied arms, and even sent its mighty Seventh Fleet to save the Pakistani occupation troops from the defeat in Bangladesh. The USSR supported India and Bangladesh and imposed successive vetoes on a cease-fire resolution in the UN Security Council to end the 1971 war between Pakistan and the joint forces of India and Bangladesh. The international community and the UN were too preoccupied with the diplomacy of ending the war rather than the genocidal killings in Bangladesh.

After the war, Pakistan used its alliance with China to cast a veto in the UN Security Council on 25 August 1972 to prevent Bangladesh from getting the UN membership. All Muslim countries opposed Bangladesh for its breakaway from Pakistan, a Muslim country. Over 4000 Bangladeshis who lived in West Pakistan in 1971 were taken hostages in Pakistan as a bargaining chip. Bangladesh had to weigh the cost of these geopolitical interests of involved states against the urgency of releasing the Bangladeshis from Pakistani captivity, getting the UN membership, access to foreign aid, and the Arab labour market. These geo-political pressures and cost-benefit considerations denied Bangladesh any opportunity to wage a consciousness-raising campaign to internationalise the genocide perpetrated by the Pakistani occupation army and its auxiliary forces. Amid intense cold-war rivalry between the two superpowers in 1971, the imperfect international community conveniently opted for silence over the recognition of genocide and for impunity of the perpetrators over justice to the victims of genocide.

Genocide is 'the crime of crimes', susceptible to divergent legal, emotive, and rhetorical understandings. Most judicial bodies regard genocide as the most serious yet highly politicised and polarised crime and impose on prosecution a very stringent burden of proof to establish its commission beyond any reasonable doubt. It is this heavy evidentiary burden that often becomes insurmountable, which is a discernible barrier to bringing charges of genocide. The genocidal acts stipulated in various international, regional, and national legal instruments do not constitute the commission of genocide automatically as a matter of fact and law. These acts may well be grave crimes but not necessarily genocide. To constitute genocide, the alleged criminal acts must be committed as a part of a common policy and an intent to destroy, wholly or partially, the existence of any of the protected groups under the UN Genocide Convention.

It is comparatively easier to prove the physical perpetration of genocidal acts factually, but the specific intent to destroy a protected group is the hardest to prove before a court of law. The International Court of Justice (ICJ) in Bosnia/Herzegovina v Serbia/Montenegro (Judgment of 26 February 2007) and Croatia v Serbia (Judgment of 3 February 2015) required the protected group to be defined positively. It rejected the Bosnian claim that Serbia targeted the Bosnian Muslims in Srebrenica, which contained non-Serb and non-Muslims. There was ample evidence of physical commission of massacre in Srebrenica by Serb troops. Still, Serbia was not held criminally responsible for genocide for want of the specific intent to destroy a protected Muslim religious group.

The indiscriminate extermination of the distinct national groups of civilian population, particularly the Hindus as a religious group and pro-independence people as a political group, has been the deliberate policy of the Pakistani occupation army during the Bangladesh liberation war. The physical commission of these acts has been established through tangible evidence as a matter of fact before the International Crimes Tribunal (ICT) of Bangladesh, which has fulfilled the factual commission of genocide in its definition in the ICT Act 1973.

This historical fact of common knowledge was the least disputed issue in most ICT cases. However, the presence of the mental element (mens rea) of intention to destroy partially or fully a group, particularly the Hindus as a distinct targeted group, became a fiercely contested issue in every trial of the genocide charge. Proving beyond reasonable doubt the existence of the genocidal intent has been a daunting challenge for the ICT prosecution, which has noticeably been cautious in limiting the charge of genocide only in nearly half of the cases, albeit with limited success. Instead, the prosecution strategically preferred charging the factual account of atrocities under crimes against humanity with great success. These insurmountable prosecutorial challenges in proving the genocidal intent are not unique in the Bangladesh trials but common in most trials of the crime of genocide, which has also militated against the legal and judicial recognition of genocide in many instances.

Since the commencement of the national trials of international crimes in Bangladesh in 2010, the national, regional, and international awareness of the commission of genocide in 1971 has grown. Being the 'Nuremberg of Asia', this trial is fraught with the potential of galvanising international, political, legal, and public opinions towards a formal international recognition of genocide committed in Bangladesh in 1971.   

The writer is an Emeritus Professor of Law, Macquarie University, Sydney, Australia.