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Rape in 1971 -- an Act of Genocide

BUDDHADEB HALDER states the case for the sexual violence of 1971 as being an act of genocide.

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It is well known that during the nine months of Bangladesh's fight for independence in 1971 the Pakistani army and its collaborators murdered 3 million Bengali-speaking citizens, raped no less than 200,000 girls and women, and burned and destroyed houses belonging to minorities and intellectuals. The conflict forced an estimated 10 million refugees to flee to India.

It is also well known that a wholesale killing of innocent civilians is nothing short of genocide. But what about the mass rapes that occurred during the same period?

1971: Mass rape as genocide?
The recognition of rape as a war crime can be traced back to the Tokyo War Crimes Trials after World War II. In the Tokyo trials, commanders were held responsible for rapes committed by soldiers under their command.

In 1993, the United Nations passed a resolution placing rape, for the first time, within the framework of war crimes. Furthermore, the UN General Assembly established that rape under certain circumstances could also constitute genocide. The International War Crimes Tribunal in The Hague reinforced this with a ruling in 2001, stating that rape of civilians is a crime against humanity.

Under the International Criminal Court's 1998 Rome Statute, wartime rape is not a freestanding crime and must be charged as an act of war, genocide or crime against humanity. The International Criminal Court has the power to establish ad hoc tribunals of limited jurisdiction, like those created to deal with the conflicts in Rwanda and in the former Yugoslavia. The international criminal tribunals for Rwanda and for the former Yugoslavia have successfully prosecuted cases of rape as war crimes and acts of genocide.

"Rape" was defined for the first time under international law in the International Criminal Tribunal for Rwanda in 1998 and charged as a crime against humanity. It is described as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."

A judge at the International Criminal Tribunal for Rwanda, Richard Goldstone, wrote, "Rape is a form of aggression. Rape is a violation of personal dignity. Rape and sexual violence constitute one of the worst ways of harming the victim as he or she suffers both bodily and mental harm."

In 2000 the United Nations Security Council adopted the historic Resolution 1325, which ''calls upon all parties to armed conflict to take measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.''

I insist on defining 1971 rape in Bangladesh an act of 'genocide' that can be structured in tandem with mass killing. In favour of my arguments, let me mention some recent international level legal developments on the issue of wartime rape. Though after a long interval the International Criminal Court (ICC) have been established (17th July 1998), the ICC has replaced the article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (UN CPPCR) 1948.

According to the UN definition of genocide, to settle on a case of genocide, only one of the acts under article 2(b) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (UN CPPCG) needs to be established. Let us see what says the article 2 of UN CPPCG.

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide (UN CPPCG)

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The Article 2 of the UN CPPCG defines genocide as: 'Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a. killings, (b) causing serious bodily or mental harm, (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, (d) imposing measures intended to prevent births and (e) forcibly transferring children of the group to another group.'

In the case of Bangladesh war, the Pakistani Army and their allies committed genocide. This can be identified easily according to Article 2 (a) of UN CPPCG.

However in the case of 'wartime rape' in Bangladesh, it is also easy to establish as an act of genocide under the Article 2(b) of the UNCPPCG, which says: 'Causing serious bodily or mental harm to members of the group, 'with intent to destroy, in whole or in part, a national, ethical, racial or religious group'.

But here the big question is how to establish the '1971 rape as an act of genocide? The 1971 rape has the same potential to devastate a group as does killing members of a group. Before investigating the issue, it is really important to remember that the actus reus requirement is implying the imposition of the measures. But there is no need to prove whether those measures actually did succeed.

Here, the issue is whether the rapes of women in Bangladesh during 1971 have been causing serious bodily or mental harm in accordance with the definition of Genocide by the United Nations.

Such harm has been defined recently in the International Criminal Tribunal for the Former Yugoslavia (ICTY) case law as 'harm that seriously injures the health, causes disfigurement or causes any serious injury to the external or internal organs or senses'. The ICC Preparatory Commission has pointed out in particular with regards to the mental injury that it must be 'more than the minor or temporary impairment of mental faculties'. It has been mentioned in the judgement of Akayesu trial that 'rape may certainly constitute one of the worst ways to inflict harm since the victim suffers both mentally and physically'.

The rapes during 1971 in Bangladesh were often associated with brutal violence (e.g. beatings, cuttings and the forceful insertion of objects into the vagina) and gang rapes that often took place in front of the victim's husbands, children or parents.

The exploratory materials from different civil society organisations and others provide countless examples of how victims suffered both physically and mentally as a result of rape.

Victims of different ages mainly the young girls from schools, universities and colleges were brutally gang raped and tortured in Rajarbag police lines. A sweeper of Rajarbag Police Line, Rabeya Khatun witnessed the carnage and cruelty on women by the Pakistani Army at the police line after March 25, 1971. Rabeya Khatun's statement is a burning evidence of brutality of the Pakistani forces. She witnessed Pakistani solders used to stab women and cut their breasts, some push their sticks into their vagina. Some brutal soldiers liked to celebrate by cutting flesh from their hips, some liked to bite their breasts scratching flesh from the bodies. Sometimes the victims used to cry in severe pain. The soldiers used to push iron rods into their vagina and kill them brutally. The hands of each and every woman were tied behind their backs. They were the victims of regular torture. Parts of their bodies became mutilated. Some lost their teeth, some received severe wounds on their lips, fingers of some women were fractured due to regular torture by the soldiers with sticks and iron rods.' There are also reported cases, where victims had committed suicide following her rape.

There is no need to establish a 'cause and effect' relationship between the acts of rape and the destruction of the group. It is adequate enough to show that the victims suffered from physical or mental harm and that these acts were committed with the mental element. Thus, on the basis of above eye witness statement it is crystal clear that the rape of 1971 caused 'serious bodily or mental harm to members of the group' as required to define genocide under the article 2 (b) of the UN CPPCG.

We already have noticed that there are some important phrases in the article 2 of the UN CPPCG namely 'with intent to destroy'; 'in whole or in part' and targeting 'a national, ethnical, racial or religious group'. Now, let us throw some light on these fronts to define in a more rational way the 1971 rape as a pure act of genocide.

With the intent to destroy
Are the acts as enumerated under article 2 (b) of UN CPPCG powerful enough to attest widespread rape in Bangladesh during liberation movement as an act of 'genocide'?

Let us use the ICC reference on the issue of wartime rape. The two forms of criminal responsibility have been stated in the general principles of ICC Statute. Article 25 states individual responsibility and article 28 states the command responsibility. In 1971, the Pakistani Army and its collaborators both were accused of committing rape in Bangladesh and there is enormous evidence that indicates a possibility to establish both individual responsibility and command or superior responsibility for the rapes in Bangladesh during liberation war.

With intent to destroy in whole or in part?
According to one expert, it is 'absurd' to consider that rapes can destroy any group in whole or in part. But in the case of Bangladesh, the rapes which occurred in 1971 are somehow different from any other incidental rape. Here, the question that must be answered is whether the rapes had caused serious physical or mental harm with the intent to demolish the Bengali population. In an interview with BBC, Major Gen Patrick Cammaert (2008), the former commander of the UN peacekeeping force in eastern Congo, 'It's (i.e. rape) a very effective weapon, because the communities are totally destroyed',…. 'You destroy communities. You punish the men, and you punish the women, doing it (i.e. rape) in front of the men'.

Considering the social and cultural background, the Pakistani Army and its collaborators successfully completed the mass rape campaign against the Bengali women to destroy the Bengali traditional culture and to dehumanise Bengali womanhood. Still rape is a stigma in Bengali society and rape during Bangladesh genocide served a purpose of the perpetrators . The main motive was to demolish the Bengali population. To define wartime rape is genocide, it is not essentially needed to prove whether the measures are planned to destroy the group, in whole or in part, but the fact they were intended to destroy the group, in whole or in part.

Thus, the systematic rapes in 1971 'constitute genocide in the same way as any other act as long as they were committed with specific intent that characterizes genocide' which resulted physical and psychological destruction of Bengali women, their families and their communities.

Accordingly, it is fairly possible to extrapolate that there are enough circumstantial evidences to support the claim 'the perpetrator believed that the acts would destroy the group, in whole or in part'.

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In the tragic tale of the 1971 rapes, the ultimate intention was a mental factor and this is difficult to prove until the accused person(s) admit it. The Preparatory Commission argues that the existence of intent and knowledge must therefore be derived from the general context, from circumstances and from relevant facts i.e. circumstantial evidence argues that 'violence must be understood and explained in its specific context'. As ICTY has recognized that genocide is an organised crime, the existence of a plan will provide a really strong support of the specific intention of committing systematic rape in 1971.

According to many eyewitness accounts, members of the intelligentsia, journalists groups and national, international media reportage, rape against the Bengali women had been part of Pakistan-sponsored genocidal campaign in Bangladesh in 1971.

There was also an attempt to wipe out the minorities from Bangladesh at the time of liberation war. In his eye-witness account Capt (Retd.) Syed Suzauddin Ahmed describes, on an instance, he heard "an army officer shouting, 'why you have killed Muslims. We ordered you to kill only Hindus." According to him, 'thus, I realised that they wanted to kill all Hindus of the country'

Though Bengali women were raped irrespective of their religious identity, Hindu women were mostly targeted.

Dr. Viggo Olsen has described in his book 'Daktar: Diplomat in Bangladesh' that 'Although thousands of young Hindu women were killed, the most attractive among them were captured to become sex slaves in the military cantonments. When the girls tried to hang themselves with their clothing, their garments were taken away from them. Then, when they tried to strangle themselves with their long black hair, they were shaved bald. When they became five or six months pregnant, they were released with the taunt: 'When my son is born, you must bring him back to me'.

There are various estimates regarding the extent of the rapes that had taken place in the fateful year of 1971.The figure ranges between 200,000 and 400,000. Irrespective of any source we lay our hands on, it would not be difficult to prove that the rapes were subjected to a considerable number of the sections in Bangladesh during 1971.

The Pakistani Army and their collaborators had identified five sections of Bengali citizens as their main enemies. In conducting this gory dance of death and destruction, they followed this priority list: 1) leaders, activists and supporters of Awami League, 2) communists and socialists, 3) freedom fighters and their associates, 4) the Hindu community irrespective of sex or age and 5) students and intellectuals or professionals.

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As the Pakistani Occupation forces were engaged in killing Bengali population intending to destroy the Bengali population, they should have had the same underlying policy of systematic rape of Bengali women and girls with a view to destroy Bengali population.

Though, academician like Sarmila Bose questions the 'true extent of rape' and also questions whether 'was there any systematic policy of rape by any party', it must be remembered that to prove the crime of genocide, the definite numbers are not vital; it is the underlying target to destroy either in whole or in part. Here it should be argued that the strategic political motives behind the organised and systematic rape during the liberation movement of Bangladesh indicate the intent to destroy a substantial number of the group.

Targeting a specific group?
Article 2(b) of the UN CPPCG declares that the intent to destroy must be directed against one of the four groups; national, racial, ethnical or religious.

Here we will look on the claim whether the 'rape' (read as 'intent to destroy') was directed against at least two groups (mentioned in the definition) of Bengali women during 1971 liberation movement of Bangladesh which amounted to genocide.

Firstly, Bengalis as a national group and secondly, quite a number of victims being the members of a particular ethnical / religious group- that is the head counts being Hindus primarily substantiate my point.

The 'Bengalis' constitute a national group whose nationalism is rooted in the history and cultural heritage of Bengal which developed well mainly in the first half of the twentieth century. Though, in 1947 India fragmented into two parts on the basis of religion, common Muslim population of East Pakistan mainly believed in belonging as 'Bengali' not as 'Muslims'. 'In post-1947 Pakistan, the official Pakistani ideology, promoted by the central Pakistani government, claimed that Pakistan-consisting of both West and East Pakistan-was a state of one nation, the Pakistanis, and denied that the Bengalis, the inhabitants of East Pakistan, formed a separate national group which was entitled to a state of its own. However the Bengalis nationalists ideology, insisted on the national, linguistic and historical distinctness of Bengalis, who were as a separate nation, entitled to a separate state'. The first identity of East Pakistani inhabitants was Bengali and the second as Muslim. In 1971 a strong Bengali nationalistic sentiment was fiercely present among all Bengalis. Thus, the Pakistani Army intended to destroy a part of Bengali national group (i.e. Bengali women) by organisning systematic rape campaign in 1971. This act undoubtly constituted 'war crime' and 'act of Genocide'.

Secondly, very recently the ICTR has defined an ethnical group as 'a group which distinguishes itself, as such […] or a group identified as such by others.' ICTR also has been defined a religious group as a 'group sharing common beliefs.' Therefore, it would certainly not be difficult to establish the link that the Hindu rape victims (in 1971) in Bangladesh were targeted as members of either ethnical or religious groups. The perpetrators selected the rape victims in 1971 even on the basis of nationalism or ethnicity/religion. During the conflict women were targeted largely because they 'belong(ed) to' the enemy's community. War and armed conflict is aimed to destruct the enemy always. Apart from direct action like mass killing, other indirect actions are destroying enemy's cultural heritage, economy and etc. Rape is actually an effective tool to destroy enemy's culture, as long as women are perceived to be "bearers of the Nation" and are responsible for the collective's honour'.

In the Akayesu case (ICTR 1994), judges gave the statement that rape is 'a step in the process of destruction of the will to live and of life itself'. Therefore it means that rape in itself is a deliberate act of destruction.

Recently, the United Nations Security Council has adopted a historic resolution 1820 (2008) on 'Women and Peace and Security'. The UN also acknowledged that women and girls are frequently targeted during conflicts 'as a tactic of war to humiliate, dominate, instil fear in, disperse and /or forcibly relocate civilian members of a community or ethnic group.' The UNSC also mentioned that 'rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide'. The UN Secretary General Ban Ki-moon (2008) mentioned 'war time rape' as 'silent war against women and girls' during the debate of the UNSC Resolution.

Almost 40 years ago, rape was being considered by Bengali women as spoiling of their chastity and this was quite normal understanding in Bengali society as well. So it is not surprising at all that rape as a political tool becomes a predominantly important issue in cultures that strongly emphasize the chastity and virginity of women. 'By raping a woman the oppressor does not just aim at hurting her personally, he takes what's a woman's private possession and at the same time tramples and humiliates the identity of the […] people as a whole.' Though rape is not primarily aimed in destroying physically a particular woman, is directed at taking away her sexual morality that is believed to belong to a man and the entire community. Thus, rape becomes the final evidence of how a man has failed as a warrior and a protector.

In 1971, women were targeted for abuse and at the same time the acknowledgement of their existence as individuals was denied. This is one of the arguments in favour of the claim that the 1971 rape in Bangladesh was committed "with intent to destroy, in whole or in part, a particular group, targeted as such" as required by article 2 of the UNCPPCG.

Thus, on the basis of above mentioned arguments the mass rapes in 1971 in Bangladesh must amount to genocide.

Buddhadeb Halder is a freelance consultant and digital marketing expert for small NGOs.