Introduction
The legal recognition of the crime of genocide is relatively modern, even though the crime has existed since ancient times. Under the Genocide Convention and the Rome Statute, there exist four protected groups, i.e., national, ethnic, racial, or religious groups. Notably, in the case of Bangladesh, even after meeting all the requirements of the crime of genocide according to international law, the genocide of the 1971 liberation war is not recognised under the international legal framework. Specifically, the genocide of the ‘Hindu’ minority groups of Bangladesh during the time of the war of 1971 is not recognised yet. Even after providing compelling evidence, including first-hand testimonies, historical documentation, and judicial rulings under the Bangladesh International Crimes (Tribunals) Act 1973, this genocide has not been officially acknowledged by the United Nations (UN) or the International Criminal Court (ICC).
The Historical Evolution of the Concept of Genocide
Introduction
The legal recognition of the crime of genocide is relatively modern, even though the crime has existed since ancient times. Under the Genocide Convention and the Rome Statute, there exist four protected groups, i.e., national, ethnic, racial, or religious groups. Notably, in the case of Bangladesh, even after meeting all the requirements of the crime of genocide according to international law, the genocide of the 1971 liberation war is not recognised under the international legal framework. Specifically, the genocide of the ‘Hindu’ minority groups of Bangladesh during the time of the war of 1971 is not recognised yet. Even after providing compelling evidence, including first-hand testimonies, historical documentation, and judicial rulings under the Bangladesh International Crimes (Tribunals) Act 1973, this genocide has not been officially acknowledged by the United Nations (UN) or the International Criminal Court (ICC).
The Historical Evolution of the Concept of Genocide
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 art 2; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 art 6.
According to Jean-Paul Sartre, “The Fact of Genocide is as old as humanity”. However, the legal concept regarding genocide is considered younger. The criminal prosecution of genocide originated when it was recognised that persecution of ethnic, national, and religious minorities was not just morally outrageous but also gave rise to legal accountability. Notably, the persecution of genocide involves violent crimes against individuals, which include murder as per the general rule. Additionally, as genocide overlaps with the crimes of homicide and assault, it was considered that there is nothing new regarding the persecution of genocide in this sense. Nevertheless, criminals escaped prosecution as historically they were considered to be above the law. One of the core reasons for such escapes was that the perpetrators were immune within the boundary of their country since they possessed the power, except for the change in the regime.
The term ‘Genocide’ was coined by Raphael Lemkin during the German occupation practice in Europe. He merged the Greek word genos and the Latin word cide to construct the word genocide. Individually, the word ‘Genos’ means nations, race, or tribe, and the word ‘Caedere’ means killing. An ancient example of the usage of this word can be seen to describe the destruction of Carthage by the Romans in 146 BCE, when the Carthaginians were mercilessly murdered and the ones who surrendered were enslaved. Another historical example of genocide was the mass killing and wiping out of entire tribes and races by Genghis Khan during the thirteenth century. And lastly, the most well-known, modern, and famous example of genocide is the Nazi Holocaust, which took place during World War II.
Because of such landmark genocides throughout history, many countries came together to form protection against crimes of genocide under international law. This can be traced back to the 17th century. This protection was primarily granted to religious minorities under the “Treaty of Peace between Sweden and the Empire” and the “Treaty of Peace between France and the Empires”. These treaties came to be famously known as the “Peace of Westphalia of 1648”. The “Treaty of Peace between Russia and Turkey”, signed on September 14th, 1829, concerned the protection of Christian minorities, whereas the “Treaty of Peace and Friendship between France and Great Britain” concerned the protection of Roman Catholics and was signed on April 11th, 1713. Moreover, the “Treaty of Peace between France, Great Britain, and Spain” ultimately led to the development of the doctrine of humanitarian intervention during the nineteenth century. This doctrine developed into the protection of national, ethnic, and religious groups. Also, international human rights law is considered to have originated from the law of armed conflict, or international humanitarian law. However, the codification of the laws of armed conflict started during the nineteenth century, where, in its early years, it was focused on the protection of medical personnel and the prohibition of certain types of arms.
Richard A Falk, Gabriel Kolko & Robert Jay Lifton, Crimes of War (Random House, 1971) 534.
William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, Cambridge University Press, 2009) 1, 17.
David L. Nersessian, Genocide and Political Groups (online edn, OUP 2010) 6.
William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, Cambridge University Press, 2009) 18.
Genocide under International Law
As per the definition of the Rome Statute and Genocide Convention, ‘Genocide’ is the act committed with the intention to destroy certain groups, i.e., religious, national, ethnic, and racial, wholly or partly by killing, causing serious physical or mental harm, forcing conditions aimed at bringing physical destruction, imposing measures where the objective is to prevent births, and transferring the children. Under the established international case precedents and laws, individuals or groups can be convicted for the crime of genocide. Regarding the commission of the crime of genocide, the act can be performed by an individual or through joint criminal enterprise with the presence of the intention of committing the crime. Notably, the individual or individuals can be convicted for secondary liability. To illustrate, the activities that involve planning, instigating, ordering, or aiding and abetting fall under the ambit of secondary liability that causes the acts of genocide. Additionally, limited forms of attempts, incitement, and even conspiracy can be considered as acts of genocide. Furthermore, constructive liability such as extended joint criminal enterprise and command or superior responsibility is considered one of the conduct elements of the crime of genocide. Lastly, the scale of atrocities committed is also taken into consideration.
The Scope of the Definition of Religious Groups
As per the international legal instruments, there exists no rigid or precise definition of religion. In order to focus on the broader scope, the main emphasis was given to the rights concerning thought, conscience, and religion. For example, according to the International Criminal Court of Rwanda, a religious group can be determined on the basis of shared religious beliefs, denomination, or worship practices. However, the drawback of this definition is that it depends more on the objective criteria. This dependency limits the inclusive approach in human rights law. In order to broaden the scope regarding the understanding of the concept of religion, other interpretations determine the religious group on the basis of common creeds, beliefs, doctrines, rituals, or practices. Nevertheless, the inclusion of atheists and non-religious groups is a debatable subject matter for scholars. It is because of the fact that such groups contain people from diverse religious backgrounds who
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 art 2; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 art 6.
The Prosecutor v Juvénal Kajelijeli [2003] (Trial Chamber II) ICTR-98-44A-T [764]; United States of America v Otto Ohlendorf et al. [1948] 4 TWC [1].
The Prosecutor v Juvénal Kajelijeli [2003] (Trial Chamber II) ICTR-98-44A-T [761]; The Prosecutor v Dario Kordic and Mario Cerkez [2004] (Appeals Chamber) IT-95-14/2-T [27]; Draft Code of Crimes against the Peace and Security of Mankind (adopted 8 August 1996, entered into force 8 August 1996) 1996 UNTS 321 art 2(3)(b); The Prosecutor v. Duško Tadic [1999] (Appeals Chamber) IT-94-1/A [229].
Statute of the International Criminal Tribunal for Rwanda (adopted 8 November 1994, amended 13 October 2006) 33 ILM 1602 art 2(3)(d); Statute of the International Criminal Tribunal for the former Yugoslavia (adopted 25 May 1993, amended 17 May 2002) 32 ILM 1192 art 4(3)(d); Rome Statute (n 10) art 25(3)(f); The Prosecutor v Juvénal Kajelijeli [2003] (Trial Chamber II) ICTR-98-44A-T [850]; The Prosecutor v. Alfred Musema [2000] (Trial Chamber I) ICTR-96-13-T [194].
Prosecutor vs. Dusko Sikirica Damir Dosen and Dragan Kolundzija [2001] (Judgement) IT-95-8-T [44]-[46]; The Chief Prosecutor vs. Abdul Jabbar Engineer [2014] ICT-BD-1 Case No. 01.
The Prosecutor v Akayesu [1998] (Trial Chamber) ICTR-96-4-T [515].
reject the traditional belief system. Thus, they do not appear as a homogenous group. However, their shared practices and belief systems create a functional unity. Thus, according to some scholars, the definition of religious groups should be adaptable enough to encompass atheists and other non-theists who are targeted for genocide due to either their internal belief systems or their distinct lack of worship. This broader scope of the definition aligns with evolving international perspectives on the classification of religious identity and persecution.
Legal Framework of Bangladesh Regarding the Genocide of Religious Groups
To begin with, secularism and religious freedom are two of the core features of the Constitution of Bangladesh. Article 12 of the Constitution of the People’s Republic of Bangladesh sets the outline for the elimination of communalism. Moreover, this provision prohibits the misuse of religion for political purposes, and it aims to prevent discrimination against individuals practicing different faiths. Additionally, Article 41 guarantees the right to profess, practice, or propagate any religion for every citizen. At the same time, this provision ensures that religious communities can establish and maintain their own institutions. Thus, the Constitution is constructed in a way that safeguards or protects the interests of every religious group and upholds their rights.
The International Crimes (Tribunals) Act, 1973, was enacted with the vision to enforce justice for the victims of the mass atrocities committed during the liberation war of Bangladesh. This particular legislation empowers the International Crimes Tribunal (Bangladesh) (ICT-BD) to prosecute individuals responsible for genocide, crimes against humanity, war crimes, and other violations of international law. Moreover, the Act provides a comprehensive definition of genocide. According to the definition, if any individual or individuals act with the intent to destroy religious, ethnic, national, and racial groups wholly or partially, the actions of the individual or individuals shall amount to the crime of genocide. Therefore, this law is considered a vital tool to address the past crimes against religious communities, and it continues to serve as a foundation for prosecuting such offences.
In order to enhance the effectiveness of ICTA 1973, the amendment of 2013 was introduced. The particular amendment expanded the scope of the tribunal, allowing the court to prosecute the organisations alongside the individuals. This addition was significant in holding accountable groups that orchestrated or participated in genocidal activities against religious minorities. Moreover, the amended ICTA 1973 reinforced the commitment of
David L. Nersessian, Genocide and Political Groups (online edn, OUP 2010) 23-24.
The Constitution of the People’s Republic of Bangladesh 1972, art 12.
The Constitution of the People’s Republic of Bangladesh 1972, art 42.
Muhammaf Abdullah Fazi, Pardis Moslemzadeh Tehrani, Bin Sharom Azmi and Maryam Khan ‘Historical Background of the International Crimes Tribunal Bangladesh, Unveiling the Truth’ (2018) 31 Journal of the Punjab University Historical Society 123.
The International Crimes (Tribunals) Act, 1973, s 3(2)(c).
Bangladesh to address and prevent genocide within its jurisdiction. Lastly, the recent amendment was introduced in 2024 in order to comply with the international standard regarding the prosecution of the crimes defined under ICTA 1973, including the crime of genocide.
Cases of ICT-BD Concerning Genocide
The perpetrators of the liberation war of Bangladesh, i.e., the Pakistani military forces and their collaborators, systematically targeted religious minorities, with a main focus on the Hindus. One of the principal culprits of this genocide was the chief of Jamaat-e-Islami, Ghulam Azam. He was accountable for the genocide of the Hindu religious minorities. By following his leadership, collaborative forces of Pakistani military forces such as Razakars, Al-Badr, and Al-Shams were formed to destroy the Hindu communities. Moreover, he encouraged violence by incitement, which resulted in mass killings, rapes, and forced deportations. He claimed that Hindus were aiding India during the liberation war of Bangladesh. Notably, considering his age, he was sentenced to 90 years of imprisonment.
Another renowned perpetrator of the crime of genocide was the leader of Al-Badr Motiur, Rahman Nizami. He played a crucial role in the systematic extermination of Hindu intellectuals. To illustrate, under his instructions, the concerned forces conducted the activities of abduction and execution of Hindu teachers, scholars, and students, particularly from universities in Dhaka. Additionally, in order to decimate the educated class that supported the independence of Bangladesh, his forces rounded up and executed the Hindu students. Nizami was sentenced to the death penalty for committing the crime of genocide. Salauddin Quader Chowdhury was convicted of committing the crime of genocide and crimes against humanity. He directly orchestrated the execution of over 200 Hindus in Chittagong. His horrific acts included leading his death squads to loot Hindu properties and wiping out entire villages, engaging in effective ethnic cleansing and forced displacement. Salauddin was sentenced to death by the ICT-BD.
Comparative Analysis of the Genocide of Religious Groups
Firstly, Bosnian Serb general Krstić was convicted for his role in the Srebrenica massacre of July 1995. He was responsible and liable for the systematic killing of more than 8,000 Bosnian Muslim men and boys. Regarding the acts of Krstić, the International Crimes Tribunal for the Former Yugoslavia (ICTY) ruled that these atrocities constituted genocide, which later became one of the most significant legal precedents in international law. Through this particular judgement, one of the most important conduct elements of genocide was
‘Bangladesh, International Crimes (Tribunals) Act 1973 (Amendment 2013)’ (ICRC Database, National Practice) <https://ihl-databases.icrc.org/en/national-practice/international-crimes-tribunals-act-1973-amendment-2013> accessed 16 February 2025.
International Crimes (Tribunals) (Amendment) Ordinance, 2024, s 4(b)(iii).
The Chief Prosecutor v. Ghulam Azam [2013] (ICT-1) ICT-BD Case No. 06/2011.
The Chief Prosecutor v. Motiur Rahman Nizami [2014] (ICT-1) ICT-BD Case No. 03/2011.
The Chief Prosecutor v. Salauddin Quader Chowdhury [2013] (ICT-1) ICT-BD Case No. 02/2011.
introduced, being the intent to destroy a religious group, in whole or in part. Secondly, the former Sudanese president Al Bashir was charged with committing the crimes of genocide, crimes against humanity, and war crimes for orchestrating attacks against the Fur, Masalit, and Zaghawa ethnic groups in Darfur. In the case of the Prosecutor v. Omar Hassan Ahmad Al Bashir, the court held that Al Bashir was responsible for possessing the intention to destroy these selective groups, which included targeting their religious practices. Based on the findings in the court, the ICC issued arrest warrants in 2009 and 2010. This particular act signified that the ICC is committed to prosecuting individuals responsible for genocidal acts against specific religious and ethnic communities. Lastly, in 2019, Gambia filed a case in the International Court of Justice (ICJ) against Myanmar. Gambia accused Myanmar of committing genocide against the Rohingya Muslim minority. In 2020, the ICJ, made a ruling on provisional measures in the case, which required Myanmar to prevent genocidal acts and preserve evidence related to allegations of genocide. This case demonstrates the legal avenues of the international community to address and prevent genocide against religious groups.
Barriers regarding the Non-recognition
In the case of the recognised genocides, such as the genocide of Rwanda, Bosnia, and the Holocaust, an international tribunal was established. However, in the case of Bangladesh, no such tribunal of an international standard has been established. Rather, the prosecution of the crimes of genocide took place under domestic tribunals. Moreover, the International Crimes (Tribunals) Act 1973, enacted by Bangladesh, primarily served as a domestic legal framework. For this particular reason, Bangladesh lacked the international enforcement mechanisms.
One of the requirements for the international recognition of genocide is that the prosecution needs to be performed under an international tribunal. In this regard, Bangladesh never had such mechanisms as the International Criminal Tribunal for the former Yugoslavia or the International Criminal Tribunal. Additionally, one of the major drawbacks for Bangladesh was that Pakistan had strong allies such as China and the USA. China has the power to give a veto, and this soft power played a significant role in the UN Security Council blocking the genocide recognition efforts. Similarly, Pakistan had closer ties with Saudi Arabia and Turkey that refrained Bangladesh from pressuring the international community on this issue. Thus, the diplomatic and economic ties of Pakistan were another barrier to the international recognition of the genocide of Bangladesh. Lastly, as Pakistani authorities
The Prosecutor v Krstić [2001] (Trial Chamber) ICTY-98-33-T.
The Prosecutor v Al Bashir (Pre-Trial Chamber II) (2016) ICC-02/05-01/09.
The Gambia v Myanmar) [2022] (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) ICJ Case No 178.
Martina Riccardi, ‘The Post-1971 Non-Recognition of the Bangladeshi Genocide: a Legal, Political, and Social Analysis’ (2024) Global Human Rights Defence. <https://ghrd.org/article/the-post-1971-non-recognition-of-the-bangladeshi-genocide-a-legal-political-and-social-analysis/> accessed 15 February 2025.
Upal Aditya Oikya, ‘Atrocities against Religious Minorities of Bangladesh: Can we Address it as Genocide?’ (2020) 2 Pécs Journal of International and European Law.
censored foreign journalists and many records were lost during the war, Bangladesh lacked international visibility, unlike the Holocaust, which had extensive photographic evidence, survivor testimonies, and documentation. Furthermore, Bangladesh’s own efforts for recognition have been inconsistent, with minimal diplomatic lobbying in international forums like the UN and ICC. The absence of a dedicated international movement, similar to Holocaust remembrance efforts, has further hindered recognition.
Conclusion
The international legal case precedents regarding the crimes of genocide set by Strebrenica, Darfur, and Rohingya genocides demonstrate that under international law, the genocide of religious groups is recognised and acknowledged. However, the genocide committed against religious minorities in Bangladesh during the liberation war of 1971 is not recognised internationally. Several key factors, such as international geopolitics, insufficient archival preservation, and awareness efforts, have hindered the recognition of the genocide of 1971. Moreover, even if Bangladesh convicted multiple perpetrators under the International Crimes Tribunal, as the tribunal lacks international legitimacy, Bangladesh failed to establish the crimes of genocide during the liberation war on an international level. On the other hand, the ICTY or ICTR had international legitimacy as those tribunals were set by the United Nations Security Council. Moreover, the Holocaust or the genocide of Rohingya minorities has an archival preservation. In conclusion, the genocide of religious minorities in Bangladesh during the liberation war is not recognised as it lacks global legitimacy, involvement of international geopolitics, global advocacy, archival preservation, and the absence of an international tribunal.
Bibliography
Laws, Treaties, Conventions
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
Martina Riccardi, ‘The Post-1971 Non-Recognition of the Bangladeshi Genocide: a Legal, Political, and Social Analysis’ (2024) Global Human Rights Defence. <https://ghrd.org/article/the-post-1971-non-recognition-of-the-bangladeshi-genocide-a-legal-political-and-social-analysis/> accessed 15 February 2025.
Draft Code of Crimes against the Peace and Security of Mankind (adopted 8 August 1996, entered into force 8 August 1996) 1996 UNTS 321.
International Crimes (Tribunals) (Amendment) Ordinance, 2024.
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.
Statute of the International Criminal Tribunal for Rwanda (adopted 8 November 1994, amended 13 October 2006) 33 ILM 1602.
Statute of the International Criminal Tribunal for the former Yugoslavia (adopted 25 May 1993, amended 17 May 2002) 32 ILM 1192.
The Constitution of the People’s Republic of Bangladesh 1972, art 12.
The International Crimes (Tribunals) Act, 1973.
Case Law
United States of America v Otto Ohlendorf et al. [1948] 4 TWC [1].
The Chief Prosecutor vs. Abdul Jabbar Engineer [2014] ICT-BD-1 Case No. 01.
The Chief Prosecutor v Ghulam Azam [2013] (ICT-1) ICT-BD Case No. 06/2011.
The Chief Prosecutor v Motiur Rahman Nizami [2014] (ICT-1) ICT-BD Case No. 03/2011.
The Chief Prosecutor v Salauddin Quader Chowdhury [2013] (ICT-1) ICT-BD Case No. 02/2011.
The Gambia v Myanmar [2022] (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) ICJ Case No 178.
The Prosecutor v. Alfred Musema [2000] (Trial Chamber I) ICTR-96-13-T.
The Prosecutor v Akayesu [1998] (Trial Chamber) ICTR-96-4-T.
The Prosecutor v Al Bashir (Pre-Trial Chamber II) (2016) ICC-02/05-01/09.
The Prosecutor v Dario Kordic and Mario Cerkez [2004] (Appeals Chamber) IT-95-14/2-T.
Prosecutor vs. Dusko Sikirica Damir Dosen and Dragan Kolundzija [2001] (Judgement) IT-95-8-T.
The Prosecutor v. Duško Tadic [1999] (Appeals Chamber) IT-94-1/A.
The Prosecutor v Juvénal Kajelijeli [2003] (Trial Chamber II) ICTR-98-44A-T [764].
The Prosecutor v Krstić [2001] (Trial Chamber) ICTY-98-33-T.
Books
David L. Nersessian, Genocide and Political Groups (online edn, OUP 2010).
Richard A Falk, Gabriel Kolko & Robert Jay Lifton (eds), Crimes of War (Random House, 1971)
William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, Cambridge University Press, 2009).
Journals
Muhammaf Abdullah Fazi, Pardis Moslemzadeh Tehrani, Bin Sharom Azmi and Maryam Khan ‘Historical Background of the International Crimes Tribunal Bangladesh, Unveiling the Truth’ (2018) 31 Journal of the Punjab University Historical Society.
Upal Aditya Oikya, ‘Atrocities against Religious Minorities of Bangladesh: Can we Address it as Genocide?’ (2020) 2 Pécs Journal of International and European Law.
Articles
Martina Riccardi, ‘The Post-1971 Non-Recognition of the Bangladeshi Genocide: a Legal, Political, and Social Analysis’ (2024) Global Human Rights Defence.
Websites
‘Bangladesh, International Crimes (Tribunals) Act 1973 (Amendment 2013)’ (ICRC Database, National Practice) <https://ihl-databases.icrc.org/en/national-practice/international-crimes-tribunals-act-1973-amendment-2013> accessed 16 February 2025.
