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P. Thornberry,International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991), 57; Y. Dinstein, “The Right to Life, Physical Integrity and Liberty” inInternational Bill of Human Rights: The Covenant on Civil and Policical Rights, ed. L. Henkin (New York: Columbia University Press, 1981), 114–137; P. Sieghart,The Lawful Rights of Mankind (Oxford: Oxford University Press, 1986), 107; “amongst all human rights, the primacy of the right to life is unanimously agreed to be pre-eminent and essential: it is thesine qua non, for all other human rights depend for their potential existence on the preservation of human life”: B. Whitaker,The Study of the Question of the Prevention and Punishment of the Crime of Genocide (Revised and Updated) UN Doc E/CN.4/Sub.2/1985/6; “there must surely be unanimity among members of the United Nations on the primacy of the right to life. The emphasis on human rights would be quite meaningless without the survival of living subjects to be the carriers of these rights. And the circumstances of the founding of the United Nations, as well as its charter, declarations, and covenants, seem to establish without doubt that in the midst of the sharpest conflict of ideologies, of values, and of national interest there is unanimity among the member states on the primacy of the right to life”: L. Kuper,The Prevention of Genocide (New Haven: Yale University Press, 1985), 3; “who can doubt that right to life in a literal sense is the most basic rights of all”: I. Claude, Jr,National Minorities: An International Problem (Cambridge, Mass: Harvard University Press, 1955), 156.
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Thornberry,supra n.1, at 105.
754 UNTS 73; 8 ILM 68; 1968 YBHR 459; 9 IJIL 317; ratified by Pakistan 10 January 1958.
SeeThe Reply of Pakistan in Question of the Punishment of War Criminals and of Persons who have Committed Crimes against Humanity, Report to the Secretary General 25 UN GAOR Annex I (Agenda Item 30), at 24, UN doc. A/8038/Add 1, 1970.
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GAOR, 3rd Session, Sixth Committee, Part 1 (63 mtg.) 30 September 1948, 10–11; (83 mtg.) 25 October 1948, 193–205; 3 GAOR Plenary 178 meeting st 818–48. Indeed, it was the fear that Pakistan might take action against India before the International Court of Justice under article IX of the Convention that led to the reservation being put in place by India. See L. LeBlance,The United States and the Genocide Convention (Durham, N.C.: Duke University, 1991), 205—206; see also I. Claude, Jr.,supra n.1, at. 155, P. Thornberry,International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991), 57 and H. Hannum, “International Law and the Cambodian Genocide: Sounds of Silence”,Human Rights Quarterly 11 (1989), 83–138, at 105.
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GAOR, 3rd Session, Part 1, third Committee, 90th meeting, 1st Oct. 1948, 37.
131 UNTS (1950).
A/C.3/SR.1104, 14 November, 1961, paras 15–17.
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For objective analyses in English see Collins and Lapierre,, L. Kuper,Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1981); P. Moon,Divide and Quit (London: Chatto and Windus, 1961); G. Khosla,Stern Reckoning: A Survey of the Events Leading Up to and following Partition of India (Delhi: OUP, 1989).
Kuper,, at 65; Collins and Lapierre,supra n. 20, at 284. L. Collins and D. Lapierre,Freedom at Midnight (London: Collins, 1975).
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, at 284.
Kuper, ; R. Emerson “The Fate of Human Rights in the, at 66 World”,World Politics 27 (1975), 201–226, 223.
Moon,supra n.23, at 237.
Kuper,supra n.23 at 67.
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Supra n.20, at 287.
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UNTS 131, 3 (8th April) 1950.
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F. Ahmad, “The Rise of Muhajir Separatism”,Journal of Asian and African Affairs 1 (1989), 97–129, 108; T. Wright, Jr. “Center-Periphery Relations and Ethnic Conflict in Pakistan—Sindhis, Muhajirs and Punjabis”,Comparative Politics (1991), 299–312, 303.
F. D’Souza and J. Crisp,The Refugee Dilemma (London: MRG, 1984), 6; J Rehman, “State-building, Self-Determination and Indian Muslim Refugees: The Role of Indian Muslim Refugees in the Constitutional Developments of Pakistan”,Contemporary South Asia 3/2 (1994), 111–129; Whitakeret al, supra n. 21, at 7.
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See LeBlance,supra n. 9.
3 SCOR, supp for Nov. 1948, 77; K. Hasan,Pakistan and the United Nations (New York: Manhatten Publishing Co, 1960), 38.
3 SCOR, Supp for Nov. 1948, 77–8 also see No 64 289th-290th meeting 7 May, 21, 312 meeting, 3 June supp for June 1948, 78.
131 UNTS 3 (8 April 1950).
A. Mascarenhas,The Rape of Bangladesh, (Delhi: Vikas Publications, 1971); International Commission of Jurist,supra n. 7; International Commission of Jurists,The Events of East Pakistan 1971 (Geneva: International Commission of Jurists, 1972), Kuper,supra n. 23, at 76–80; L. Kuper,Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1981), R. Jahan, “The Bengalis of East Pakistan” inGenocide and Human Rights: A Global Anthology, ed. J. Potter (Lanham: University Press of America, 1982), 256–258.
V. Nanda, “Self-Determination in International law: The Tragic Tale of Two Cities—Islamabad and Dacca”,American Journal of International Law 66 (1972), 321–336; V. Nanda, “A Critique of the United Nations Inaction in the Bangladesh Crises”,Denver Law Journal 49 (1976), 53–67; E. Suzuki, “Self-Determination and World Public Order: Community Response to Territorial Separation”,Virginia Journal of International Law 16 (1978), 779–862.
Government of Pakistan,White Paper on the Crises in East Pakistan, Introduction, 5 August 1971 (Islamabad: Government of Pakistan Press, 1971).
International Commission of Jurists,supra n. 7, at 23,
Cited in Nanda, “Self—Determination in International law”,supra n. 45, at 331–332.
, at 257. Kuper,supra n. 23, at 79; L. Kuper,Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1981); L. Kuper,The Prevention of Genocide (New Haven: Yale University Press, 1985), 48. According to Whitaker “Three million has become established as the number of people who were killed in all during the period of terror between March and December 1971”; Whitakeret al., supra n. 21, at 8. B. Whitakeret al, The Biharis of Bangladesh (London: MRG, 1978), 7.
P. Hyndman “Developing Refugee Law in Asia Pacific Region: Some issues and prognosis”,Asian Yearbook of International Law,1 (1990), 19–44, 23.
See Nanda, “A Critique”supra n. 45, at 55.
International Commission of Jurists,supra n. 7, at 26–27.
Ibid, at. 98.
See P. Malanczuk,Humanitarian Intervention and the Legitimacy of the Use of Force (Amsterdam: Het Spinhuis, 1993), Inaugural Lecture at the University of Amsterdam 22 January, 1993, 16–23; also see I. Brownlie, “Humanitarian Intervention” inLaw and Civil War in the Modern World, ed. J. Moore (Baltimore: John Hopkins University Press, 1974), 26; “A finding of a ‘threat to the peace’ is, to a large degree, a political decision on the part of the Council and so such a finding as regards a wholly internal situation is not precluded. Generally, however, the permanent members are not going to exercise this discretion unless the situation has potential international repression which could affect their interests or even involve them in an escalating conflict”: N. White,The United Nations and the Maintenance of International Peace and Security (Manchester: Manchester University Press, 1990), 36; R. Higgins,The United Nations: Appearance and Reality, Josephine Onoh Memorial Lecture (Hull: University Press, 1993), 10.
UN Document S/10410 p1 (italics added), Dec. 3, 1971; UN Press Release SG/SM 1516 2 August, 1971.
S/PV/1608, 8, 18, 32.
S/PV/1608, 7.
GA Res. 377 (V).
Kuper,supra n.49, at 58.
International Commission of Justice,, at 85; S/VP. 1611, December 12, 1971, 11.
For his comments see UN Doc E/CN.4/Sub SR.625-35, 1971, 139–144.
For his commentssupra n.62, see UN Doc E/CN.4/Sub SR.625-35, 1971, 139–144. at. 145–6.
Supra n.62, at 74, 146.
Supra n.62, at 74
Supra n.62, at 74–75.
8UN Monthly Chronicle (No 8) 1972, August–September, 1971.
UN Monthly Chronicle (No 11) 124–126, December 1971.
S/PV/606, 32.
J. Salzburg, “United Nations Prevention of Human Rights Violations: The Case of Bangladesh”,International Organisation 27 (1973), 115–127, 115.
J. Fonteyne, “The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the United Nations Charter”,California Western International Law Journal 4 (1974), 203–270, 204; also see J. Fonteyne, “Burden-Sharing: An Analysis of the Nature and Function of International Solidarity in Cases of Mass Influx of Refugees”,Australian Yearbook of International Law 8 (1978–80) 162–184.
T. Franck and N. Rodley, “After Bangladesh: The Law of Humanitarian Intervention”,American Journal of International Law 67 (1973), 275–305, 293.
V. Nanda, “Tragedies in Northern Ireland, Liberia, Yugoslavia and Haiti, Re-Visiting the Validity of Humanitarian Intervention”,Denver Journal of International Law 20 (1992), 305–334. 319.
Supra n.73.
UN GAOR, Sixth Committee (103 mtg.) 437 (1948); also note the position of India in relation to the issue of Jurisdiction of the International Court of Justice on Article IX of Genocide Convention See The International Court of Justice,Pleadings Oral Arguments, Documents, The case concerning the Trial of Prisoners of War (Pakistan v India), ICJ pleadings, the Opening of the Oral proceedings and the views of Mr. Bakhtiar, Counsel for Pakistan, 47.
Trial of Pakistan Prisoners of War, ICJ Reports 1973, 347; H. Levie, “Legal Aspects of the Continued Detention of the Pakistani Prisoners of War by India”,American Journal of International Law 67 (1973), 512–516.
I. Hussain,Issues in Pakistan’s Foreign Policy (Lahore: Progressive Publishers, 1988) 214.
“... It is not possible to have a “Competent Tribunal” within the meaning of Article VI of the Genocide Convention in “Bangladesh” in view of the extreme emotionally charged situation that prevails there. This was demonstrated in the recent trials of the “Collaborators” when Sir Dingle Foot, the Chief Counsel for Dr A.M Malik the former Governor of East Pakistan, and others, was allowed to enter Dacca on 13 November 1972, and the former Governor and other eminent persons were convicted and sentenced to brutal punishments after summary proceedings for so-called complicity with the Pakistan forces in the alleged acts of genocide. Moreover, the requirements of a “competent Tribunal” are that it must apply international law, have impartial judges and allow the accused to be defended by counsel of their choice. Further no retrospective application of law is permissible”: The International Court of Justice,Pleadings Oral Arguments, Documents, supra n.76, UN GAOR, Sixth Committee (103 mtg.) 437 (1948); also note the position of India in relation to the issue of Jurisdiction of the International Court of Justice on Article IX of Genocide Convention See The International Court of Justice,Pleadings Oral Arguments, Documents, The case concerning the Trial of Prisoners of War (Pakistan v India), ICJ pleadings, the Opening of the Oral proceedings and the views of Mr. Bakhtiar, Counsel for Pakistan, 47, para 10, 6–7.
Supra n. 76, at 17–18.
Press Release, April 17 1973 reprinted in J. Paust and A. Blaustein,War Crimes Jurisdiction and Due Process: A Case Study of Bangladesh (London: British Library Unpublished Documents, 1974), 54.
India-Pakistan Agreement on Repatriation of Prisoners of War, 12 ILM (1973), 1080–84.
SeeIndia-Pakistan: Agreement on Bilateral Relations and statements on its implementation, 3 July 1972, 11 ILM (1972), 954–957.
Paust and Blaustien,supra n.7, at 21.
Supra n.7.
Washington Post, August 26, 1972.
Supra n.7, at 35.
Keesings 25–31 March, 1974, 26423;Washington Post, August 30 at 18.
See SCOR, 27th Year, Supp for July, August and September, S/10759; SC. 1660th meeting, 25 August 1972, GAOR, 27th Session, Annex Agenda Item 23, Doc A/8776; UNMonthly Chronicle August–September 1972, 24.
Supra n.89 See SCOR, 27th Year, Supp for July, August and September, S/10759; SC. 1659 meeting, August 1972 (11-1 China, 3 Guinea, Somalia, and Sudan).
Supra n.89 See SCOR, 27th Year, Supp for July, August and September, S/10759; SC.
Supra n.7, at 36. cf. Levie,supra n.77Trial of Pakistan Prisoners of War, ICJ Reports 1973, 347; H. Levie, “Legal Aspects of the Continued Detention of the Pakistani Prisoners of War by India”,American Journal of International Law 67 (1973), at 512–516; H. Levie, “The Indo-Pakistani Agreement of August 28 1973”,American Journal of International Law 68 (1974), 95–95; N. Shah,Constitution Law and Pakistan Affairs (Lahore: Wajidalis, 1986), 209–230.
Bangladesh-India-Pakistan: Agreement on the Repatriation of Prisoners of War and Civilian Internees, 13 ILM 1974, 501–505 para. 13;New York Times April, 1974, at 3 col. 1.
C. Bassiouni,Crimes against Humanity and International Criminal Law (Netherlands: Sijthoff, 1992), 230.
R. Lemkin,Axis Rule in Occupied Europe (Washington: Carneige Endowment for International Peace, 1944), 79.
“By ‘genocide’ we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin, cide (Killing), thus corresponding in its formation to such words as tyrannicide, infanticide etc.”:supra n.95, at 79.
See D. Petrovic, “Ethnic Cleansing: An Attempt at Methodology”,European Journal of International Law 5 (1994), 326–341; L. Lerner, “Ethnic Cleansing”,Israel YearBook on Human Rights 24 (1995), 103–117; A. De Zayas, “The Right to One’s homeland: Ethnic Cleansing and International Criminal Tribunal for the former Yugoslavia”,Criminal Law Forum 6 (1995), 257–314.
Article 1.
See Report of the International Law Commission on the work of its forty Sixth session, UN GAOR Supp. No 10 UN Doc A/49/10 (1994); Report of theAdhoc Committee on the Establishment of an International Criminal Court UN GAOR, fiftieth session, Supp. No 10, UN Doc A/50/22 (1995); See generally D. McGoldrick and C. Warbrick, “International Criminal Law”,International and Comparative Law Quarterly 44 (1995), 466–479, 473; J. Crawford, “The ILC’s Draft Statute for an International Criminal Court”,American Journal of International Law 88 (1994), 130–152, 140; J. Crawford, “The ILC Adopts a Statute for an International Criminal Court”,American Journal of International Law 89 (1995), 404–416; J. Dugard, “Obstacles in the way of International Criminal Court”,Cambridge Law Journal 56/2 (1997), 329–342.
See the Security Council Resolution 827 (1993). For Commentaries see H. McCoubrey, “The Armed Conflict in Bosnia and Proposed War Crimes Trials”,International Relations 11 (1992), 411–432; P. Akhavan, “Punishing War Crimes in the former Yugoslavia: A Critical Juncture for the New World Order”,Human Rights Quarterly 15 (1993), 262–289; J. O’Brien, “The International Tribunal for Violation of International Humanitarian Law in the former Yugoslavia”,American Journal of International Law 87 (1993), 639–659; P. Akhavan, “The Yugoslavia Tribunal at a Cross-Roads: The Peace Agreement and Beyond”,Human Rights Quarterly 18 (1996), 259–285.
See the Security Council Resolution 955 (1994). See D. Shraga and R. Zacklin, “The International Criminal Tribunal for Rwanda”,European Journal of International Law 7 (1996), 501–518; W. Schabas, “Justice, Democracy and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems”,Criminal Law Forum 7/3 (1996), 523–560.
On July 15, 1997 the Yugoslav Tribunal (Based in the Hague) sentenced Dusan Tadic to 20 years imprisonment for having committed crimes against humanity. Tadic’s sentence as well as trial has been controversial; see “Serb Fury at Jail for Killer”,The Guardian 15 July 1997; G. Watson, “The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction inProsecutor v. Tadic”, Virginia Journal of International Law 36 (1996), 687–718; J Alvarez, “Nuremberg Revisited: The Case”,European Journal of International Law 7 (1996), 245–264.
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Dr. Javaid Rehman B.A., LL.B., LL.M., Ph.D., Law Department, University of Leeds. Dr. Rehman was a contributor to theWorld Directory of Minorities (London: Minority Rights Group,, 1997).
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Rehman, J. The role of the international community in protecting the physical existence of minorities: A case study of Pakistan. Liverpool Law Rev 20, 201–227 (1998). https://doi.org/10.1007/BF02799317
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DOI: https://doi.org/10.1007/BF02799317