War Crimes Law and the Constitution Abstract Jamaat‐e‐Islami Bangladesh is amoderate Islamic political party that believesin democracy and human rights. Fromthe early 1960sJamaat was active against allthe autocratic governments. The Awami League wasin powerfortwo terms:from1972‐1975 and 1996‐2001.During these two termsthey took no step whatsoeverforthe trial ofthe leaders ofJamaat‐e‐Islami on the allegation ofthe so‐called war crime.During themassmovementforrestoration of democracy in the 1980s and during themovementfor CaretakerGovernmentin the 1990s,the Awami League had no difficulty in working side by side with Jamaatleaders. A person is presumed innocent until he is proven guilty. Itisreally surprising that when the leadership ofJamaat was notlisted among the 195 who were to be tried for war crimes,they have now been termed as war criminals. Thisis a violation the fundamentalrights and human rights ofthe Jamaatleaders. Jamaat‐e‐Islami and Constitutionalism Jamaat‐e‐Islami (“Jamaat”)is one ofthe oldest partiesin the sub‐continent. It was organised in British India in 1941.Jamaatstarted its work in whatis now Bangladesh in the 1950s.Jamaat‐e‐ Islami is amoderate Islamic political party that believesin democracy, human rights and is committed to upholding the rule oflaw.Jamaat wantsto establish an justsociety through democratic process and democratic process only. Because in Islamno one hasthe rightto lead unless he orshe is an elected representative ofthe people. Thisis precisely the reason why in more than half a century ofits existence Jamaat hasfollowed the democratic path only. It has participated in almost allthe national and local elections. To attain its objectives,Jamaat has neverresorted to violence or unconstitutionalmeans. It has always abided by the laws ofthe country and in the face of extreme provocation and politicalrepression pursued itsrightthrough legalmeans. For example, in January 1964 Jamaat was outlawed by the then government of Pakistan. The decision ofthe government was challenged and finally,the Supreme Court of Pakistan presided over by the then ChiefJustice A.R. Cornelius declared the government’s action of outlawing Jamaat unlawful[See: Sayiid Abul A’la Mawdudi andOthers Vs TheGovt. of West Pakistan andOthers, 17Dhaka Law Report, Supreme Court, Page 209]. Similarly in 1973,the Government, by a notification disqualified ProfessorGolamAzam, former Ameer ofJamaat, frombeing a citizen of Bangladesh. 22 yearslater ProfessorGolamAzamchallenged the order of the government before theHigh Court, and both theHigh CourtDivision and the Appellate Division ofthe Supreme Court of Bangladesh declared the government’s decision as unlawful.Thus ProfessorGolamAzamobtained his birth right of citizenship through court oflaw.[See ProfessorGolamAzamVs. Bangladesh (45Dhaka Law Report,High CourtDivision, page 433 and Bangladesh Vs. ProfessorGolamAzam, 46Dhaka Law Report, AppellateDivision, page 192]. Jamaat’s participation in the democraticmovements Fromthe early 1960sJamaat,together with other political parties, was active againstthe autocratic government of Ayub Khan.Jamaat was atthe fore front offorming Pakistan Democratic Movement(PDM), CombinedOpposition Parties(COP) and later onDemocratic Action Committee (DAC),three platforms of allthe political parties which fought againstthe autocratic regime of Ayub Khan. The Awami League was also an active component of COP and DAC. In the 80s,Jamaattook partin themassmovementforrestoration of democracy side by side with the twomajor political parties, namely the BNP and the Awami League. In thislong struggle forrestoration of democracy there were liaison committees ofthe BNP,Jamaat and the Awami League and the liaison committees ofthe three parties used to sitregularly to formulate common programmes. Itis a historicalfactthatJamaat wasthe first political party to raise the demand of holding Parliamentary elections under a neutral CaretakerGovernment. In the movementforincorporating the concept of CaretakerGovernmentin the Constitution Jamaat, Awami League and Jatiya Party foughtside by side. They addressed press conferencesfromthe same platform. Jamaat’s participation in the national elections Jamaat has been represented in Parliamentsince 1962. It has participated in allthe Parliamentary and local elections with a view to institutionalising democracy. In the Parliamentary elections of 1962 Jamaat won 4 seatsin theNational Assembly and 2 seatsin the Provincial Assembly fromwhat wasthen East Pakistan. In the general elections of 1970 although Jamaat did not win any seatin theNational Assembly of East Pakistan, it emerged asthe second largest political party nextto Awami League which had a landslide victory.However, in the Provincial Assembly election of 1970 Jamaat won 1 seatin the district of Bogra. Afterthe independence of Bangladesh Jamaat could nottake partin the elections of 1973 because allthe Islamic political partiesincluding Jamaat were outlawed.However,Jamaattook partin 1979 Parliamentary elections underthe name IslamicDemocratic League (IDL) and secured 6 seatsin Parliament with itsleader Mawlana Abdur Rahimelected fromBarisal. In 1986 Jamaat won 10 seats; in 1991, 18 seats; in 1996, 3 seats; and in 2001, 17 seatsin Parliament.Jamaat hasthe support of about 15 % ofthe total electorate.Jamaat also participated in the coalitiongovernment of 2001.Jamaat’s Ameer(Chief) Mawlana Matiur RahmanNizami held the portfolios of Ministry of Agriculture and Ministry of Industries while its SecretaryGeneral Mr. Ali Ahsan Muhammad Mujahid held the portfolio of Ministry of Social Welfare. Itis accepted even by the opponents ofJamaatthatthose Ministries were run efficiently and honestly. Itmay be mentioned that BangladeshNationalist Party (BNP) could not have formed the governmentin 1991 withoutthe support ofthe Jamaatin Parliament. Allegations of TerrorismagainstJamaat Asmentioned earlier,Jamaat believesin democracy, human rights and rule oflaw. In the later part of 2005, a series of bomb blaststook place in Bangladesh. The terroristsin the name of Islamalso killed two judges ofthe Subordinate court. TheOpponents ofJamaatmade frantic effortsto implicate Jamaatin the terrorist attacks.Jamaattook a firmstand againstthose terrorists, issued pressstatements, organisedmeetings and rallies acrossthe country. Itis largely due to Jamaat’ssincere effortsthatthe religiousleaders ofthe country throughout Bangladesh ‐ fromthe villagesto the capital city‐ in one voice condemned those acts of terrorism. With public supportthe then coalition government was able to arrestthe terrorists and try themin open court and finally they have been sentenced to death. Allegations of war crimes againstJamaatleadersOn 16thDecember 1971,the Pakistani Army surrendered inDhaka and ninety three thousand ofthemwere taken as prisoners of war (POWs).Out ofthem,there were allegations of war crimes against 195, and they were identified assuch by theGovernment of Bangladesh.On 19th July 1973, Parliament passed the International Crimes(Tribunal) Act 1973 to try the alleged war criminals. Earlier on 15th July 1973,the Constitution was amended denying the protection offundamentalrightsto the alleged war criminals. Following the Simla Agreementsigned on 2nd July 1972 between IndiraGandhi, Prime Minister ofIndia and Zulfikar Ali Bhutto, President of Pakistan a number of agreements were signed between India and Pakistan regarding repatriation ofthe POWs.On 9th April 1974, an Agreement wassigned between Bangladesh, India and Pakistan inNew Delhi in which, among otherissues,the question oftrial ofthe 195 POWs wasraised and finally it was decided that they would be repatriated to Pakistan along with the other prisoners withouttrial. For better understanding, paragraph 15 ofthe 1974 Agreementis quoted below:‘In the light ofthe foregoing and, in particular, having regard to the appeal ofthe Prime Minister of Pakistan to the people of Bangladesh to forgive and forgetthemistakes ofthe past,the Foreign Minister of Bangladesh stated thattheGovernment of Bangladesh had decided notto proceed with the trials as an act of clemency. It was agreed thatthe 195 prisoners of warmay be repatriated to Pakistan along with the other prisoners of war now in process ofrepatriation undertheDelhi Agreement’. Thus 195 POWs were repatriated to Pakistan, and the question oftheirtrial as war criminals was finally abandoned. Itshould bementioned that underthe International Crimes(Tribunal) Act, 1973 the Tribunal has jurisdiction to try and punish the persons who weremembers of any armed, defense or auxiliary forces and has committed war crimes or crimes against humanity.No one fromJamaat has ever been amember of armed, defense or auxiliary forces,therefore,the question oftrying themby the Tribunal does not arise. As amatter offact a Tribunalformed underthe War Crimes Act will have no jurisdiction to try anymember ofJamaat. Allegations are frequentlymade against Jamaatthatit organised paramilitary forceslike Al‐Badr, Al‐Shamas and Razakar and committed atrocitiesin the war ofindependence in 1971.Jamaatstrongly denies any link with such atrocities. In those daysthe paramilitary forces were organised locally by the thenGovernment under a provincial legislation, namely the Razakar Act 1971 and it had no central command. Jammat also denies any involvement whatsoever with the abduction andmurder ofjournalists and academics.Onemember ofJamaat, Abdul Khalique Mojumder, was prosecuted and convicted by a subordinate courtin the seventiesfor his alleged involvementin the killing of an intellectual namely Shahidullah Kaiser, but his conviction had been set aside by theHigh Court. The government did notfile any appeal in the AppellateDivision ofthe Supreme Court against the judgment oftheHigh CourtDivision. Itistrue thatthe then Jamaat‐e‐Islami Bangladesh supported the cause of united Pakistan. It wasJamaat’s political decision.Nomember ofJamaat was everinvolved with any crime of murder, arson, lootlet alone any crime against humanity. The Bangladesh Collaborators(Special Tribunals)Order, 1972 was promulgated to set up tribunalsfortrial ofthe individuals or members of organisations who directly orindirectly acted as collaborators or abettors ofthe Pakistan Armed forces. This PresidentialOrder waslaterrepealed by the Bangladesh Collaborators(Special Tribunal) (Repeal)Ordinance, 1975.On 19th July 1973 Parliament passed the International Crimes(Tribunal) Act 1973 by which a legalframework was created to try the war criminals.Nomember orleader ofJamaat wastried or convicted underthis Act. Previously ProfessorGolamAzam,the ex Ameer(Chief) ofJamaat was accused of committing atrocities during the war. Thematter wasraised by the then AttorneyGeneral in theHigh CourtDivisionduring the hearing of his citizenship case. Even Mr.Justice Mohammad IsmailUddin Sarker,the dissenting Judge who held that ProfessorGolamAzamwas not a citizen of Bangladesh,made the following observations: ‘thatthere is nothing to directly implicate the petitionerin any ofthe atrocities alleged to have been perpetrated by the Pakistani Army ortheir associates – the Rajakars, Al Badrs orthe Al Shams……..we do notfind anything thatthe petitioner wasin any way directly involved in perpetuating the alleged atrocities during the war ofindependence.’ [See ProfessorGolamAzamVs. Bangladesh (45Dhaka Law Report,High CourtDivision, page 433] The double standard of a political party The Awami League wasin powerfortwo terms:from1972‐1975 and 1996‐2001.During these two termsthey took no step whatsoeverforthe trial ofthe leaders ofJamaat‐e‐Islami on the allegation ofthe so‐called war crime.During themassmovementforrestoration of democracy in the 1980s and during themovementfor CaretakerGovernmentin the 1990s,the Awami League had no difficulty in working side by side with Jamaatleaders who are now accused of war crimes. In the 7 years ofstruggle forrestoration of democracy, numerousmeetings were held between the leaders ofJamaat, BNP and Awami League in which Jamaatleaders namely Matiur RahmanNizami, Ali Ahsan Mohammad Mujahid, MohammadQamaruzzaman, Abdul Qader Molla, ATM Azharul Islamand others participated.On behalf of Awami League Messers late Abdus Samad Azad, AbdulJalil, Tofail Ahmed, Suranjit SenGupta, AmirHossain Amu MohammadNasimand others also participated. The evidence ofthosemeetings can be found in the pressreports ofthe yearsfromthe 1984‐1990. Afterthe general elections of 1991, on behalf of Awami League, Mr. AmirHossain Amumade an offerto Jamaatthrough Mr Ali Ahsan Mohammad Mujahid,the present SecretaryGeneral ofJamaatto formgovernment with the help of 18 MPs ofJamaat and in return Jamaat was offered 2‐3ministries with a number ofseats reserved for women MPs.Jamaatstraightway refused the offer of Awami League.During the movementfor caretaker governmentthe leaders ofJamaat and Awami League addressed press conferencesjointly. In one press conference, addressed fromthe precinct of ParliamentHouse in 1996,the then leader oftheOpposition SheikhHasina,the leader ofthe Jamaat Parliamentary party Matiur RahmanNizami and that ofJatiya Party Moudud Ahmed, attended. This Press conference was also attended, among others, by Mrs. Sajeda Chaudhury, Mr. Suranjit SenGupta. The national dailies published photographs ofthat event.Jamaat was not alone to support Pakistan Jamaatis notthe only political party which supported the cause of united Pakistan. There were other parties namely,the MuslimLeague,Nezam‐e‐IslamParty,JamiyatUlema Islam,the Pro China Communist Party all of which supported the cause of united Pakistan. Besides,there was a sizeablemember of prominent personalities which include university professors, doctors, engineers, journalists and religiousleaders who supported the cause of united Pakistan. Although Jamaat accepted Bangladesh since 16thDecember 1971 and it has been working for the welfare of Bangladesh and is committed to preserve itssovereignty, it has been singled out and a smear campaign has been going on againstit only forthe narrow political gains of certain political parties.When the sub‐continent was divided into two states; India and Pakistan in 1947,the MuslimLeague wasin favour ofthe division ofIndia and the Congress wasforthe unity ofIndia. After partition the MuslimLeague has been functioning in India and theNational Congress worked as a political party until 1970 without any stigma. However, itis unfortunate that after 36 years ofindependence Jamaatis dubbed as an anti liberation force although it has been sufficiently represented in Parliament and had twoministersin the past coalition government. Violation of human rights ofJamaat’sleaders Itis very unfortunate thatleaders of a few political parties and a section ofthe pressin a smear campaign dubbed the top leaders ofJamaat as war criminals. Thisis contrary to all civilized norms and the provisions oflocal and international legislations. A person is presumed innocent until he is proven guilty by a competent court oflaw and in caseslike this,the burden is on the prosecution and the standard of proofis guilty beyond reasonable doubt. Itisreally surprising that when the leadership ofJamaat was notlisted among the 195 who were to be tried for war crimes,they have now been termed as war criminals. Thisis violation of principles of natural justice and also violation ofthe fundamentalrights and human rights ofthe Jamaatleaders which are guaranteed underthe Constitution of Bangladesh and a number ofInternational conventionsincluding theUniversalDeclaration ofHuman Rights and International Covenant on Civil and Political Rights. APPENDIX Simla Agreement 2 July 1972This agreement on Bilateral Relations between India and Pakistan wassigned afterthe 1971 India‐PakistanWar, in which Pakistan was defeated conclusively and which resulted in the creation of Bangladesh. India refrained fromattacking orfinishing off Pakistan and signed this agreement with the hope that henceforth the countriesin the region would be able to live in peace with each other. The then Pakistani Prime Minister, Zulfiqar Ali Bhutto, also promised the then Indian Prime Minister, MrsIndiraGandhi,that his country would acceptthe Line of Control (LOC) in the state ofJ&K asthe de facto border and would nottry to destabilise it. This was not formally entered in the agreement because Bhutto said it would cause domestic problemsfor himatthisjuncture. MrsGandhimagnanimously accepted his promise and did notformalise that part ofthe agreement. But Pakistan, aslater events were to prove, never keptits part of the deal. TheGovernment of India and theGovernment of Pakistan are resolved thatthe two countries put an end to the conflict and confrontation that have hithertomarred theirrelations and work forthe promotion of a friendly and harmoniousrelationship and the establishment of durable peace in the sub‐continent,so that both countriesmay henceforth devote theirresources and energiesto the pressing task of advancing the welfare oftheir peoples. In orderto achieve this objective,theGovernment ofIndia and theGovernment of Pakistan have agreed asfollows: (i) Thatthe principles and purposes offthe Charter oftheUnitedNationsshall govern the relations between the countries; (ii) Thatthe two countries are resolved to settle their differences by peacefulmeansthrough bilateral negotiations or by any other peacefulmeansmutually agreed upon between them. Pending the finalsettlement of any ofthe problems between the two countries, neitherside shall unilaterally alterthe situation and both shall preventthe organization, assistance or encouragement of any acts detrimentalto themaintenance of peaceful and harmonious relations. (iii) Thatthe pre‐requisite forreconciliation, good‐neighbourliness and durable peace between themis a commitment by both countriesto peaceful co‐existence,respectfor each other’sterritorial integrity and sovereignty and non‐interference in each other’sinternal affairs, on the basis of equality andmutual benefit; (iv) Thatthe basic issues and causes of conflict which have bedevilled the relations between the two countries ofthe lasttwenty‐five yearsshall be resolved by peacefulmeans; (v) Thatthey shall alwaysrespect each other’s national unity,territorial integrity, political independence and sovereign equality; (vi) Thatin accordance with the Charter oftheUnitedNations,they shallrefrain fromthe threat or use offorce againstthe territorial integrity or political independence of each other; (II) BothGovernments willtake allsteps within their powerto prevent hostile propaganda directed against each other. Both countries will encourage the dissemination ofsuch information as would promote the development offriendly relations between them; (III)In order progressively to restore and normalize relations between the two countriesstep by step, it was agreed that; (i) Stepsshall be taken to resume communications, postal,telegraphic,sea, land including border posts, and airlinksincluding overflights; (ii) Appropriate stepsshall be taken to promote travelfacilitiesforthe nationals ofthe other country; (iii) Trade and co‐operation in economic and other agreed fields will be resumed asfar as possible; (iv) Exchange in the fields ofscience and culture will be promoted. In this connection delegationsfromthe two countries willmeetfromtime to time to work outthe necessary details. (IV)In orderto initiate the process ofthe establishment of durable peace, bothGovernments agree that: (i) Indian and Pakistaniforcesshall be withdrawn to theirside ofthe international border; (ii) In Jammu and Kashmir,the line of controlresulting fromthe cease‐fire ofDecember 17, 1971 shall be respected by both sides without prejudice to the recognized position of eitherside. Neitherside shallseek to alterit unilaterally, irrespective ofmutual differences and legal interpretations. Both sidesfurther undertake to refrain fromthe threat ofthe use offorce in violation ofthisline; (iii) The withdrawalsshall commence upon entry into force ofthis Agreement and shall be completed within a period ofthirty daysthereof.(V) This Agreement will be subjectto ratification by both countriesin accordance with their respective constitutional procedures, and will come into force with effectfromthe date on which the Instruments of Ratification are exchanged. (VI) BothGovernments agree thattheirrespectiveHeads willmeet again at amutually convenienttime in the future and that, in themeanwhile,the representatives ofthe two sides willmeetto discussfurtherthemodalities and arrangementsforthe establishment of a durable peace and normalization ofrelations, including the questions ofrepatriation of prisoners of war and civilian internees, a finalsettlement ofJammu and Kashmir and the resumption of diplomatic relations. Sd/‐ IndiraGandhi Prime Minister Republic ofIndia Sd/‐ Zulfiqar Ali Bhutto President Islamic Republic of Pakistan Indo‐Pak Joint Agreement(28th August 1973) The Special Representative ofthe Prime Minister of India, Shri P.N.Haksar, and the Pakistan Minister of State forDefence and Foreign Affairs,His Excellency Mr. Aziz Ahmed, held talksin Rawalpindi fromJuly 24 to July 31, 1973 and inNew DelhifromAugust 18 to August 28, 1973, Shri P.N.Haksar was assisted by Foreign Secretary, Shri Kewal Shingh, Secretary to the Prime Minister, Shri P.N.Dhar,Joint Secretariesin the Ministry of External Affairs, Shri K. P. S. Menon, Shri A. S. Chib andDr. S. P.Jagota, andDeputy Secretaries, Shri K.N. Bakshi and ShriNaresh Dayal. The Ieader ofthe Pakistani delegation was assisted by the Foreign Secretary, Mr. Agha Shahi,DirectorGeneral in the Ministry of Foreign Affairs, Mr. Abdul Sattar and Directors, Mr. Abdul Waheed and Mr. Khalid Saleem. These talks were held in the context ofsolving the humanitarian problemsset outin the JointIndo‐BangladeshDeclaration of April 17, 1973. 2.During the course ofthe talks both at Rawalpindi and atNew Delhi, which weremarked by mutual understanding,the delegations ofIndia and Pakistan reviewed the progressso farmade in the implementation ofthe Simla Agreementsince theymetlastinNew Delhi in August 1972.The Special Representativesreaffirmed the resolve oftheirrespectiveGovernments expressed in the Simla Agreementthat “The two countries put an end to the conflict and confrontation that have hithertomarred theirrelations and work forthe promotion of a friendly and harmoniousrelationship and the establishment of durable peace in the sub‐continent.” In this connection the Special Representatives were confidentthatthe repatriation of prisoners of war and nationals of Bangladesh and Pakistan will generate an atmosphere ofreconciliation and thus contribute to the building of a structure of durable peace in the sub‐continent. 3.Desirous ofsolving the humanitarian problemsresulting fromthe conflict of 1971 and thus enabling the vastmajority of human beingsreferred to in the JointIndo‐BangladeshDeclaration to go to theirrespective countries, India and Pakistan have reached the following agreement: i) The immediate implementation ofthe solution ofthese humanitarian problemsis without prejudice to the respective positions ofthe parties concerned relating to the case of 195 prisoners of warreferred to in Clauses(vi) and (vii) ofthis paragraph; (ii) Subjectto Clause (i),repatriation of all Pakistani prisoners of war and civilian internees will commence with the utmost despatch assoon aslogistic arrangements are completed and from a date to be settled bymutual agreement: (iii) Simultaneously,the repatriation of all Bangaleesin Pakistan, and all Pakistanisin Bangladesh referred to in Clause (v) below,to theirrespective countries will commence; (iv)In thematter ofrepatriation of all categories of personsthe principle ofsimultaneity will be observed throughout asfar as possible; (v) Without prejudice to the respective positions of Bangladesh and Pakistan on the question of non‐Bangalees who are stated to have “opted forrepatriation to Pakistan”,theGovernment of Pakistan, guided by considerations of humanity, agrees, initially,to receive a substantial number ofsuch non‐BangaleesfromBangladesh. Itisfurther agreed thatthe Prime Ministers of Bangladesh and Pakistan ortheir designated representatives willthereaftermeetto decide what additional number of persons whomay wish tomigrate to Pakistanmay be permitted to do so. Bangladesh hasmade it clearthatit will participate in such ameeting only on the basis of sovereign equality; (vi) Bangladesh agreesthat no trials ofthe 195 prisoners of warshalltake place during the entire period ofrepatriation and that pending the settlement envisaged in clause (vii) below these prisoners of warshallremain in India; (vii)On completion ofrepatriation of Pakistani prisoners of war and civilian interneesin India, Bangaleesin Pakistan and Pakistanisin Bangladesh referred to in Clause (v) above, or earlierif they so agree, Bangladesh, India and Pakistan will discuss and settle the question of 195prisoners of war. Bangladesh hasmade it clearthatit can participate in such ameeting only on the basis ofsovereign equality. The Special Representatives are confidentthatthe completion ofrepatriation provided forin this agreement wouldmake a signal contribution to the promotion ofreconciliation in the subcontinent and create an atmosphere favorable to a constructive outcome ofthemeeting of the three countries; (viii) The time schedule forthe completion ofrepatriation ofthe Pakistani prisoners of war and civilian interneesfromIndia,the BangaleesfromPakistan, and the Pakistanisreferred to in Clause (v) above fromBangladesh, will be worked out by India in consultation with Bangladesh and Pakistan, asthe casemay be.theGovernment ofIndia willmake the logistic arrangements forthe Pakistani prisoners of war and civilian internees who are to be repatriated to Pakistan. TheGovernment of Pakistan willmake logistic arrangements within itsterritory up to agreed points of exitforthe repatriation of Bangladesh nationalsto Bangladesh. TheGovernment of Bangladesh willmake necessary arrangementsforthe transport ofthese personsfromsuch agreed points of exitto Bangladesh. TheGovernment of Bangladesh willmake logistic arrangements within itsterritory up to agreed points of exitforthemovement ofthe Pakistanis referred to in Clause (v) above who will go to Pakistan. TheGovernment of Pakistan willmake necessary arrangementsforthe transport ofthese personsfromsuch agreed points of exitto Pakistan. Inmaking logistic arrangementstheGovernments concernedmay seek the assistance ofinternational humanitarian organizations and others; (ix) Forthe purpose offacilitating the repatriation provided forin this agreement,the representatives ofthe Swiss FederalGovernment and any international humanitarian organization entrusted with thistask shall have unrestricted access at alltimesto Bangaleesin Pakistan and to Pakistanisin Bangladesh referred to in Clause (v) above. TheGovernment of Bangladesh and theGovernment of Pakistan will provide all assistance and facilitiesto such representativesin thisregard including facilitiesfor adequate publicity forthe benefit ofthe persons entitled to repatriation underthis agreement; (x) All personsto be repatriated in accordance with this agreement will be treated with humanity and consideration. 4. TheGovernment ofIndia and theGovernment of Pakistan have concurred in this agreement. The Special Representative ofthe Prime Minister ofIndia, having consulted theGovernment of Bangladesh, has also conveyed the concurrence of Bangladesh Governmentin this agreement.Done inNew Delhi on August 28, 1973 in three originals, all of which are equally authentic. Aziz Ahmed Minister of State forDefence&Foreign Affairs,Government of Pakistan P.N.Haksar Special Representative ofthe Prime Minister ofIndia Text ofthe Bangladesh‐India‐Pakistan Agreement Signed inNew Delhi on April 9, 1974 On July 2, 1972,the President of Pakistan and the Prime Minister ofIndia signed an historic agreement at Simla under which they resolved that “the two countries put an end to the conflict and confrontation that have hithertomarred theirrelations and work forthe promotion of a friendly and harmoniousrelationship and the establishment of durable peace in the sub‐ continent.” The Agreement also provided forthe settlement of “their differences by peaceful meansthrough bilateral negotiations or by any other peacefulmeansmutually agreed upon.” 2. Bangladesh welcomed the Simla Agreement. The Prime Minister of Bangladesh strongly supported its objective ofreconciliation, good neighborliness and establishment of durable peace in the sub‐continent. 3. The humanitarian problems arising in the wake ofthe tragic events of 1971 constituted a major obstacle in the way ofreconciliation and normalization among the countries ofthe sub‐ continent. In the absence ofrecognition, it was not possible to have tripartite talksto settle the humanitarian problems as Bangladesh could not participate in such ameeting except on the basis ofsovereign equality. 4.On April 17, 1973, India and Bangladesh took amajorstep forward to break the deadlock on the humanitarian issues by setting aside the political problemofrecognition. In aDeclaration issued on that date they said thatthey “are resolved to continue their effortsto reduce tension, promote friendly and harmoniousrelationship in the sub‐continent and work togethertowards the establishment of a durable peace.” Inspired by this vision and “in the largerinterests of reconciliation, peace and stability in the sub‐continent” they jointly proposed thatthe problem ofthe detained and stranded personsshould be resolved on humanitarian considerations through simultaneousrepatriation of allsuch persons exceptthose Pakistani prisoners of war whomight be required by theGovernment of Bangladesh fortrial on certain charges.5. Following theDeclaration there were a series oftalks between India and Bangladesh and India and Pakistan. These talksresulted in an agreement atDelhi on August 28, 1973 between India and Pakistan with the concurrence of Bangladesh which provided for a solution ofthe outstanding humanitarian problems. 6. In pursuance ofthis Agreement,the process oftree‐way repatriation commenced on September 19, 1973. So far nearly 300,000 persons have been repatriated which has generated an atmosphere ofreconciliation and paved the way for normalization ofrelationsin the sub‐ continent. 7. In February 1974,recognition took place thusfacilitating the participation of Bangladesh in the tripartitemeeting envisaged in theDelhi Agreement, on the basis ofsovereign equality. Accordingly,His ExcellencyDr. KamalHossain, Foreign Minister oftheGovernment of Bangladesh,His Excellency Sardar Swaran Singh, Minister of External Affairs,Government of India andHis Excellency Mr. Aziz Ahmed, Minister of State forDefence and Foreign Affairs ofthe Government of Pakistan,metinNew DelhifromApril 5 to April 9, 1974 and discussed the variousissuesmentioned in theDelhi Agreement, in particularthe question ofthe 195 prisoners of war and the completion ofthe three‐way process ofrepatriation involving Bangaleesin Pakistan, Pakistanisin Bangladesh and Pakistani prisoners of warin India. 8. The Ministersreviewed the progress ofthe three‐way repatriation undertheDelhi Agreement of August 28, 1973. They were gratified thatsuch a large number of persons detained or stranded in the three countries had since reached their destinations. 9. The Minister also considered stepsthat needed to be taken in order expeditiously to bring the process ofthe three‐ way repatriation to a satisfactory conclusion. 10. The Indian side stated thatthe remaining Pakistani prisoners of war and civilian interneesin India to be repatriated undertheDelhi Agreement, numbering approximately 6,500 would be repatriated atthe usual pace of a train on alternate days and the likely short‐fall due to the suspension oftrainsfromApril 10 to April 19, 1974 on account of Kumbh Mela, would bemade up by running additionaltrains after April 19. It wasthus hoped thatthe repatriation of prisoners of war would be completed by the end of April, 1974. 11. The Pakistan side stated thatthe repatriation of Bangladesh nationalsfromPakistan was approaching completion. The remaining Bangladesh nationalsin Pakistan would also be repatriated withoutlet or hindrance. 12. In respect of non‐Bangaleesin Bangladesh,the Pakistan side stated thattheGovernment of Pakistan had already issued clearancesformovementto Pakistan in favour ofthose non‐ Bangalees who were either domiciled in former West Pakistan, were employees ofthe CentralGovernment and theirfamilies or weremembers ofthe divided families, irrespective oftheir original domicile. The issuance of clearancesto 25,000 persons who constitute hardship cases was also in progress. The Pakistan side reiterated that allthose who fall underthe firstthree categories would be received by Pakistan without any limit asto numbers. In respect of persons whose applications had been rejected,theGovernment of Pakistan would, upon request, provide reasons why any particular case wasrejected. Any aggrieved applicant could, at any time,seek a review of his application provided he was able to supply new facts orfurther information to theGovernment of Pakistan in support of his contention that he qualified in one or other ofthe three categories. The claims ofsuch persons would not be Itime‐barred. In the event ofthe decision ofreview of a case being adverse theGovernments of Pakistan and Bangladeshmightseek to resolve it bymutual consultation. 13. The question of 195 Pakistani prisoners of war was discussed by the three Minister, in the context ofthe earnest desire oftheGovernmentsforreconciliation, peace and friendship in the sub‐continent. The Foreign Minister of Bangladesh stated thatthe excesses andmanifold crimes committed by these prisoners of war constituted, according to the relevant provisions oftheU. N.General Assembly Resolutions and International law, war crimes, crimes against humanity and genocide and thatthere was universal consensusthat persons charged with such crimes as the 195 Pakistani prisoners of warshould be held to account and subjected to the due process oflaw. The Minister of State forDefence and Foreign Affairs oftheGovernment of Pakistan said that hisGovernment condemned and deeply regretted any crimesthatmay have been committed. 14. In this connection the three Ministers noted thatthemattershould be viewed in the context ofthe determination ofthe three countriesto continue resolutely to work forreconciliation. The Ministersfurther noted thatfollowing recognition,the Prime Minister of Pakistan had declared that he would visit Bangladesh in response to the invitation ofthe Prime Minister of Bangladesh and appealed to the people of Bangladesh to forgive and forgetthemistakes ofthe pastin order to promote reconciliation. Similarly,the Prime Minister of Bangladesh had declared with regard to the atrocities and destruction committed in Bangladesh in 1971 that he wanted the people to forgetthe past and tomake a fresh start,stating thatthe people of Bangladesh knew how to forgive. 15. In the light ofthe foregoing and, in particular, having regard to the appeal ofthe Prime Minister of Pakistan to the people of Bangladesh to forgive and forgetthemistakes ofthe past, the Foreign Minister of Bangladesh stated thattheGovernment of Bangladesh had decided not to proceed with the trials as an act of clemency. It was agreed thatthe 195 prisoners of warmay be repatriated to Pakistan along with the other prisoners of war now in the process of repatriation undertheDelhi Agreement.16. The Ministers expressed their conviction thatthe above agreements provide a firmbasisfor the resolution ofthe humanitarian problems arising out ofthe conflict of 1971. They reaffirmed the vitalstake the seven hundredmillion people ofthe three countries have in peace and progress and reiterated the resolve oftheirGovernmentsto work forthe promotion of normalization of relations and the establishment of durable peace in the sub‐continent. Signed inNew Delhi on April 9, 1974 in three originals, each of which is equally authentic. SD/‐ (KAMAL HOSSAIN) Minister of Foreign Affairs Government of Bangladesh SD/‐ (AZIZ AHMED) Minister of State forDefence&Foreign AffairsGovernment of Pakistan SD/‐ (SWARANSINGH) Minister of External AffairsGovernment ofIndia
Posted on: Wed, 17 Jul 2013 01:05:56 +0000
Trending Topics
Recently Viewed Topics
© 2015