The
Rules of Good Neighbourliness
As
the violence spread in East Pakistan the flood of refugees fleeing from
that violence took on such vast proportions that it created a formidable
problem for India. In face of this invasion of refugees, the Indian
Government adopted a policy whose impact on events in East Pakistan was
decisive. During a first phase, from the end of March to the end of
November 1971, various measures were taken of direct or indirect
assistance to the insurgents, including an increasingly active military
assistance which finally led to frontier incidents and engagements
between Indian and Pakistani troops. Then, on December 3, took place the
Pakistani air attack on Indian air bases, and India 's retaliation in
the form of a massive land attack which led to the surrender of the
Pakistani forces in East Pakistan. By these acts, first of assistance
and later of armed intervention, did India contravene its international
obligations ? Or did India have adequate legal motives to justify those
acts?
It
should be borne in mind that according to the terms of Article 2 of the
Charter India, like Pakistan and all other Member States of the United
Nations, was bound to settle its international disputes by peaceful
means and to' refrain in its international relations from the threat or
use of force against the territorial integrity or political
independence-of ally State'. Moreover, in accordance with international
customary law India's first duty was to maintain an attitude of
neutrality and to refrain from inferfering in the hostilities which had
broken out in the neighbouring State. Indeed, subject to other
considerations which will be discussed later, the traditional rule of
neutrality in respect of belligerents engaged in a civil war was
applicable to India up to December 6, 1971, the date on which she
recognised Bangladesh as an independent country.
We
will consider first the legality of the assistance given by India to the
insurgents who were fighting for an independent Bangladesh, and then the
legality of India 's armed attack, resulting in the surrender of
the Pakistani armed forces in East Pakistan.
Assistance to Insurgents
If
India's actions had been limited to receiving and offering shelter to
the Bangladesh leaders claiming to constitute a 'government in exile'
granting them certain practical facilities such as the use of its radio
services for broadcasts intended for Bangladesh, and even building up
troop concentrations along its frontiers with Pakistan, they would not
have offered very serious cause for protest on the part of Pakistan. The
right of sanctuary for belligerents is recognised in customary law, and
as to the radio broadcasts, the mass media of a neutral nation may be
permitted to take whichever side in the controversy they may select. It
may be that the radio programmes from India served to increase the flow
of refugees, by increasing their fear of the Pakistan army, and by
making it known that the Indian Government was prepared to allow them to
cross the frontier and to provide for them in refugee camps. But none of
these things involved an infringement of neutrality. As regards the
concentration of troops along the frontiers, while this may be seen as
the expression of an unfriendly and mistrustful attitude, it is
nonetheless a current practice, even among states which are particularly
careful to maintain an attitude of strict neutrality when civil war is
raging in a neighbouring country.
More serious, however, from the point of view of international law, is
the military assistance given by India to the Bangladesh insurgents.
This assistance is not admitted by India, but there seems to be little
doubt that the Bangladesh guerrilla forces, the Mukti Bahini, were able
to recruit and train volunteers on Indian soil, and were given the
necessary arms, ammunition and logistic support to enable them to mount
operations from Indian territory. According to the principles of
customary international law, India was under a duty to observe
neutrality by refraining from providing either of the belligerents with
any military supplies or allowing them to use her neutral territory for
the transit of military forces or for the preparation or launching of
military operations. It appears clear that these obligations under the
customary laws of neutrality were not respected by India.
If
the people of East Pakistan had been justified in international law in
asserting their independence under the principle of self-determination,
then by virtue of Article 2 of the United Nations Charter they would
have been entitled to seek and to receive support in accordance with the
aims and principles of the Charter, and India, like all other states,
would have had a duty to 'promote the realisation of the right of
self-determination' (U.N. Resolution 2625). We have already expressed
the view, however, that it cannot be established that the principle of
self-determination of peoples applied to this situation, and India's
assistance to the insurgents cannot, therefore, be justified under this
principle.
In
any event, any such assistance in promoting a right of
self-determination must be 'in accordance with the provisions of the
Charter'. The Declaration on Principles of International Law approved in
Resolution 2625 states (in the section dealing with the principle that
states shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the purposes of
the United Nations) that
'Every state has the
duty to refrain from organising or encouraging the organisation of
irregular forces or armed bands, including mercenaries, for incursion
into the territory of another state.'
and
that
'Every state has the
duty to refrain from organising, instigating, assisting or participating
in acts of civil strife or terrorist acts in another state or
acquiescing in organised activities within its territory directed
towards the commission of such acts, when the acts referred to in the
present paragraph involve a threat or use of force.' (our italics)
On
the face of it, certain of India 's actions fall within the terms of
this condemnation, namely the provision of military supplies to the
insurgents and the granting of facilities to recruit and train guerrilla
forces on Indian soil. India's involvement appears to have gone further
than this. There can be no doubt that India did take military action
against Pakistan before the outbreak of open war. Apart from shelling
across the frontier which had gone on for some time on both sides, each
alleging it was done by way of retaliation, more serious operations
occurred towards the end of November. As we have seen, the Indian army
penetrated several miles into Pakistan territory with tank forces and
indeed captured and brought back to India some Pakistan tanks. India's
justification was that this action was directed to stopping the attacks
being made and being prepared by Pakistan forces against Indian
territory. It is always difficult to pass judgment on conflicting claims
concerning frontier incidents, but it is hard to see how these attacks
by India can be justified. These hostilities did, however, retain the
character of frontier incidents up to December 3.
In
these circumstances, what was the justification for the preventive
attack, or 'pre-emptive strike' by the Pakistan air force against Indian
air bases on December 3? The only justification for resorting to force
expressly recognised by the United Nations Charter - and then only
subject to certain conditions - is that referred to in Article 51, that
is to say 'the inherent right of individuals or collective self-defence
if an armed attack occurs against a Member of the United Nations'.
Customary international law authorises military action in self-defence
only where there exists a 'necessity of self-defence, instant,
overwhelming, leaving no choice or means and no moment for
deliberations'.1 Moreover, the response to the attack must be
proportionate to the threat which the attack represents.
We
find it difficult to see how the military action taken by India up to
the date of the Pakistan air attack justified more than frontier
reprisals of the kind which had been taking place on both sides for some
time. It was natural that Pakistan should want to put a stop to the
Mukti Bahini's Indian based guerilla operations, and the pursuit of
guerillas on to Indian territory or attacks on training centres in India
could no doubt have been justified upon this ground. But the Pakistan
air raids on Indian air bases hundreds of miles away from the frontier
with East Pakistan cannot be justified either on the basis of reprisals
or as self-defence.
India's reaction to Pakistan's 'pre-emptive strike' was to treat it as
an act of aggression, a casus belli, justifying India in sending her
forces into the territory of Pakistan. Soon thereafter India recognised
the Government of Bangladesh as an independent sovereign state and from
then on India's justification for her action was that she was giving aid
to this government in its war of liberation against Pakistan. And so the
internal conflict between the two provinces of Pakistan became an
international armed conflict of the conventional type.
While it is difficult to establish accurately the exact moment at which
the Indian troops came into action, it seems that there was an interval
of about two days between the Pakistani preventive attack and the Indian
retaliation. A surprise attack of this type certainly offers sufficient
justification for retaliation, and probably is sufficiently grave to
constitute a casus belli. Various writers have speculated upon the
motives underlying Pakistan's air attack against India and India's reply
to it. It has been suggested that Pakistan intended to precipitate the
war and thought she would be able to achieve military successes on the
western front which would strengthen her hand in the negotiations she
anticipated would result from a United Nations intervention. On the
other hand it has been suggested that India seized upon the
opportunity offered by the air attack to transform into a casus belli an
event which was certainly serious but which might have been seen as an
isolated 'incident' had she not preferred to magnify its importance and
treat it as an 'aggression'.
It
would be unwise to embark on a judgment of either party based on their
supposed intentions. We restrict ourselves to the facts. In our view the
circumstances, technically, justified a declaration of war and India's
claim that she was acting in self-defence in accordance with Article 51
of the Charter of the United Nations was legally valid. It does not
follow, however, that all of India's subsequent actions can be justified
on grounds of self-defence.
As
we have observed in relation to Pakistan's air attack, the doctrine of
self-defence requires that the response to an attack should be
proportionate to the threat which the attack represents. We find it
difficult to accept that the scale of India's armed action was motivated
solely by military considerations based on the need to protect her
national frontiers and territory. India, of course, also argues that as
from December 6, when she recognised the Government of Bangladesh, her
action was justified as legitimate support for her new ally in its
struggle for independence.
This is a dangerous doctrine, and would set at nought all the principles
of international law enjoining neutrality on third-parties in a civil
war situation. All that a neighbouring country would need to do
would be to grant recognition to the rebel forces in order to justify
her intervention in their support. It becomes necessary, therefore, to
look further into the circumstances in order to determine what
justification, if any, there was for India's full-scale invasion of
Pakistani territory.
In the Name of Humanity
Neither the military operations, nor the political developments which
followed, offer support for the allegation that India wanted to take
advantage of the situation in order to settle its account with Pakistan
and put an end to the dispute on the western frontier which had not been
settled by armed conflict a few years earlier. But it is clear that
India did intend to use military action to free Bangladesh and enable it
to become a sovereign state independent of Pakistan. On what grounds, if
any, can the resort to force for this purpose be justified in
international law? The answer is complex and involves matters of
international concern as well as India's own direct interests.
We
have already rejected the proposition that India's actions can be
justified in international law as support to a people who were asserting
a right to self-determination.
We
may also recall the 1950 treaty between India and Pakistan, by which the
two contracting parties solemnly guaranteed for all citizens within
their respective territories absolute equality regardless of religious
distinctions, and security in respect of their lives, culture, property
and personal dignity.2 This treaty is important because it gives India a
direct interest in the way in which Pakistan treats its Hindu minority,
and it means that Pakistan cannot claim that this is a question falling
solely within its domestic jurisdiction. The treaty officially recognised the real character of the problem as an international, and
not merely an internal, affair. There can hardly be any doubt that the
large-scale and systematic discrimination and persecution of which the
Hindus were victims from March to December 1971 constituted a violation
by Pakistan both of its international treaty obligations and of its
obligations under the International Convention on the Elimination of All
Forms of Racial Discrimination. One may, however, question whether these
violations alone, if there had been no additional circumstances, would
have constituted a sufficient justification for launching the war.
Moreover, the religious question, important though it does not seem to
have been the decisive factor in the crisis which finally led to war.
Closely linked with the preceding problem is that of the refugees, which
again has both national and international aspects. No exact figures are
known. India claimed that at the beginning of December
1971 the total number exceeded 10 million, and the judgment of most
impartial observers appears to confirm that the number was of that
order.
One
can get some impression of the scale of this migration, or 'civil
invasion' as Mrs. Indira Gandhi fairly called it, by comparing it with
the total estimated number of refugees in the world. These were
estimated in 1959 at about 15 million and in 1979 about 17.6 million,
which would give an average annual increase of something less than
200,000.3 When one realises that the 'tidal wave' of refugees into India
probably raised the world figure, in a little over six months, from 17.6
million to about 27.6 million and that only a single country was
affected, one begins to understand what the impact on that country must
have been. Quite apart from the social and political repercussions
provoked by this flood of destitute humanity pouring into an area
already over-populated, with large numbers living in great poverty, the
sheer cost of harbouring the refugees until the end of December 1971 has
been estimated at over 500 million dollars. About half of this was
provided by international assistance, but there was no assurance that
this level of international aid would continue, still less that it would
increase.
It
is probable that the effect on the Indian economy was such as to
disrupt, possibly even to halt for several years, the normal economic
development of the whole country. The World Bank estimated that if the
refugees had remained on Indian soil for a further three months, the
cost of that further period might have amounted to 700 million dollars.
We find neither historical precedent nor juridical definition
applicable to this situation. It was not an 'armed attack' in the sense
of the Charter, nor even a provocation on the part of Pakistan, nor a
blockade - although it gravely threatened India's economy. It must be
recognised that India's vital economic interests were at stake and that
the in the creation of political conditions which would make it possible
to repatriate the refugees. The United Nations, as we have seen, was
doing nothing to bring about these conditions, and it is hard to see how
they would have been achieved without the liberation of Bangladesh.
This problem of the refugees involved a further and far from negligible
problem of a humanitarian nature. Indeed, it is in this realm of
humanitarian law, in the widest sense of the term, that Pakistan was
most vulnerable. In addition to the appalling brutalities which were
continuing within East Pakistan, the condition in which the refugees
were forced to live, in spite Indian and international assistance,
itself Involved a massive violation of human rights. One need only
consider the physical conditions and the appalling death rate which
actually resulted and that which might have resulted in the long term.
Should India have allowed these mass deaths to continue? Within East
Pakistan, the insecurity which had provoked the exodus had not
diminished. Human rights were still violated on a major scale and the
general and-systematic nature of the inhuman treatment inflicted on the
Bangladesh population was evidence of a crime against humanity. Was this
massacre to be allowed to continue?
This brings us to the traditional doctrine of humanitarian intervention
which Sir Hersh Lauterpacht, in the last edition of Oppenheim's
International Law4 defines as follows:
'... when a State
renders itself guilty of cruelties against and persecution of its
nationals in such a way as to deny their fundamental human rights and to
shock the conscience of mankind, intervention in the interest of
humanity is legally permissible.'
And
Professor Borchard5 defines more clearly the form that such intervention
may take:
'When these human rights
are habitually violated, one or more states may intervene in the name of
the society of Nations and may take such measures as to substitute at
least temporarily, if not permanently, its own sovereignty for that of
the state thus controlled. Whatever the origin, therefore, of the rights
of the individual, it seems assured that these essential rights rest
upon the ultimate sanction of international law, and will be protected,
in the last resort, by the most appropriate organ of the international
community.'
Humanitarian intervention has been described by Professors McDougal and
Reisman as 'a venerable institution of customary international law
...regarded as accepted law by most contemporary international
lawyers'.6 It was accepted by both Grotius and Vattel, and it has been
invoked many times since. Examples are the armed intervention by Great
Britain, France and Russia against Turkey which led to the independence
of the Greek nation in] 830, and the Syrian intervention by France in
]860 following the protocol of the Conference of Paris.
The
unilateral use of this ancient and respected doctrine, which is the
expression of a profound and innate sense of justice corresponding to
the natural feelings and reactions of the average person, is
nevertheless questionable from two points of view. First of all it may
open the door to all sorts of abuses and risks and be used as a pretext
for acts of aggression: The justification for it is liable to be
subjective, whereas one would wish to see the reasons for a humanitarian
intervention established objectively. Secondly, it is reasonable to
suggest that as a result of the creation of the United States
Organisation (and possibly of Regional Organisations such as the Council
of Europe) there has been a transfer of authority and responsibility and
that henceforth humanitarian intervention is a matter to be dealt with
by
international bodies rather than individual nations. By virtue of
Article 39 of the Charter it is in the first instance the responsibility
of the Security Council to' determine the existence of any threat to the
peace ... and ... decide what measures shall be taken.' This means that
it is for the Security Council to decide whether or not a collective
humanitarian intervention is called for or, in certain cases, to
authorise action on the part of an individual state, and the Member
States are bound to accept this decision and to assist in its
implementation. The General Assembly, for its part, may make
recommendations in accordance with Article 55 of the Charter concerning
the, universal respect for, and observance of, human rights and
fundamental freedoms for all', and indeed Article 56 translates this
general obligation into a specific duty for each of the Member States,
who , pledge themselves to take joint and separate action in cooperation
with the Organisation for the achievement of (these) purposes '.
Some authorities have argued that the right of unilateral intervention
has been completely supplanted by these procedures for collective
humanitarian intervention under the United Nation.7 But what if
violation of human rights on a massive scale are not even considered in
the United Nations to see whether they constitute a 'threat to peace',
and if international organisations offer no redress or hope of redress?
Must everyone remain impassive in the face of acts which revolt the
human conscience, paralysed by considerations which are primarily of a
procedural nature or even - which is worse - by procedural obstruction?
When it is clear that the international authorities cannot or will not
discharge their responsibilities, it would seem logical to resort again
to customary international law, to accept its rules and the validity of
the doctrine of humanitarian intervention. At the same time, to avoid the
obvious dangers implicit in this doctrine, it is suggested that, before
unilateral humanitarian intervention by a single nation can be
justified, the following requirements should be satisfied:
-
The state against which
measures are to be taken must have shown itself manifestly guilty in
respect of its citizens of systematic cruelty and persecution to the
point at which
(a) their fundamental human rights are denied them, and
(b) the conscience of mankind is shocked and finds that cruelty and
persecution intolerable.
-
The circumstances must
be such that no practicable peaceful means of resolving the problem is
available, such as negotiations with the state which is at fault,
intermediation, or submission to a competent international organisation.
-
The international
community must have had the opportunity within the limits imposed by the
circumstances:
(a) to ascertain whether the conditions justifying humanitarian
intervention do in fact exist, and
(b) itself to solve the problem and change the situation by applying
such measures as it may deem appropriate.
-
If the international
community does not avail itself of the opportunities offered and fails
to act in order to prevent or put a stop to widespread violations of
human rights which have been called to its attention, thereby leaving no
choice but intervention, then a state or group of states will be
justified in acting in the name of humanity provided that:
(a) before resorting to force it will deliver a clear ultimatum or
'peremptory demand' to the state concerned insisting that positive
actions be taken to ameliorate the situation;
(b) it will resort to force only within the strict limits of what is
absolutely necessary in order to prevent further violations of
fundamental human rights;
(c) it will submit reports on its actions to the competent international
agency to enable the latter to know what is being done and to intervene
if it sees fit to do so;
(d) it will withdraw the troops involved in the intervention as soon as
possible.
In
our present world it is only in quite exceptional circumstances that
unilateral action on the part of a state can be considered as legally
justified on the basis of the doctrine of humanitarian intervention,
particularly if that action involves the use of force on a scale of some
magnitude. Unilateral action is likely to be arbitrary and to lack the
disinterested character which humanitarian intervention should possess.
In the situation with which we are concerned, and on the basis of the
rules we have laid down, India might be accused of not having pursued
all possible peaceful means of solving the problem since she did not
submit the matter to the Security Council - a step, we may add, which no
Member State of the United Nations saw fit to take. Such a reproach may
seem somewhat unrealistic, since it was plain to all that there was no
prospect of the Members of the Council reaching an agreement capable of
offering any possibility of an effective solution, and nothing could
have been worse than a show of decision which would have paralysed
action without providing a positive solution. In our view the
circumstances were wholly exceptional; it was becoming more and more
urgent to find a solution, both for humanitarian reasons and because the
refugee burden which India was bearing had become intolerable, with no
solution or even any hope of a solution in sight. Events having been
allowed to reach this point, it is difficult to see what other choice
India could have made. It must be emphasised that humanitarian
intervention is not the ground of justification which India has herself
put forward. As we have seen, India claims to have acted first in self-defence,
and secondly in
giving support to the new Government of Bangladesh which she recognised
when the hostilities began. We have given our reasons for not accepting
the validity of these claims. If India had wished to justify her action
on the principle of humanitarian intervention she should have first made
a 'peremptory demand' to Pakistan insisting that positive actions be
taken to rectify the violations of human rights.8 As far as we are aware
no such demand was made.In conclusion, therefore, we consider that
India's armed intervention would have been justified if she had acted
under the doctrine of humanitarian intervention, and further that India
would have been entitled to act unilaterally under this doctrine in view
of the growing and intolerable burden which the refugees were casting
upon India and in view of the inability of international organisations
to take any effective action to bring to an end the massive violations
of human rights in East Pakistan which were causing the flow of
refugees. We also consider that the degree of force used was no greater
than was necessary in order to bring to an end these violations of human
rights.
Footnotes:
129
British and Foreign State Papers 1129, 1138 (remarks of Mr. Webster,
April 24, 1841).
2131 United Nations Treaty Series 3 (8 April, 1950).
3U.S. Committee for Refugees, World Refugee Reports 1969 and 1970.
4Oppenheim, L., 1962, International Law, 8th ed., Vol. I, p. 312 (ed. H. Lauterpacht).
5Borchard, 1922, Diplomatic Protection of Citizens Abroad, p.
14.
6International Lawyer, Vol. 3, No.2, p. 438.
7e.g. Jessup, Modern Law of Nations (1949), p. 170; Ganji,
International
Protection of Human Rights, 1962, Geneva, p. 44; Thomas & Thomas,
The
Dominican Republic Crisis 1965, Hammarskjold Forum, 1967, p. 20; the
contrary view, namely that the right or unilateral humanitarian
intervention remains unaffected, is stated by McDougal & Reisman,
International Lawyer Vol. 3, No.2, p. 444.
8cf. Ganji, op. cit.. pp. 14, 15 and 38.