INTERNATIONALCOURTOFJUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
CASECONCERNING TRIALOF
PAKISTANIPRISONERS OFWAR
(PAKISvINDIA)
COUR INTERNATIONALEDE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRERELATIVE AU PROCÈS
DEPRISONNIERS DEGUERRE
PAKISTANAIS
(PAKISTAN c. INDE) Abbreviated reference:
I.C.J. Pleadings,
Trial ofPakisfaniPrisonersof War
Référence abrégée:
C.Z.J.Mémoires,
Procès deprisonnierseguerrepakistanais
Saiesnumber
No de vente: CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR
(PAKISTAN vINDIA)
AFFAIRE RELATIVE AU PROCES
DE PRISONNIERS DE GUERRE PAKISTANAIS
(PAKISTAN c. INDE) INTERNATIONALCOURTOF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
CASECONCERNING TRIALOF
PAKISTANI PRISONER OSFWAR
(PAKISTAN v. INDIA)
COURINTERNATIONALE DEJUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRERELATIVE AUPROCÈS
DEPRISONNIERS DEGUERRE
PAKISTANAIS
(PAKISTAN c. INDE) The present volume contains the record filed in the case concerning Trialof
Pakistani Prisoners of War.
This case, entered on the Court's General List11May 1973 under number
60, was discontinuedby an Order of the Court of 15December 1973 (Trialof
Pakistani Prisoners of War, I.C.J. Reports 1973,347).
The Hague, 1976.
Le présent volume reproduit le dossier de l'affaire relative au Procès de
prisonniersrieguerrepakistanais.
Cette affaire, inscrite au rôl11mai 1973sous le no60,en a étérayee par
ordonnance de la Cour du 15 décembre 1973 (Procèsde prisonniersde guerre
pakistanais, C.I.J. Recueil 1973,347).
La Haye, 1976. CONTENTS
Page
ApplicationInstituting Prweedings
The Agent for the Government of Pakistan to the Registrar... 3
AnnexesIo rheApplicorion
AnnexA ........................... 8
AnnexB ........................... 9
Annex C-1 .......................... 11
Annex C-Il .......................... 11
Annex C-III ......................... 12
Annex C-VI1 ......................... 14
Annex C-VI11 ........................ 14 .
Request for the Indication of lnterim Measures of Protectio..... 15
Oral Arguments
OPEN~NO OF THE ORALPROCEEDINGS
ARGUMEN IF MR . BAKHTIAR ...................
Subject-matter and urgency of Application ............
India not present in proceedings ................
Central issue concerns Pakistan's rights to try nationals accused of acts
of genocide .........................
Conditions of Pakistani prisoners of war and intemees held by Ind.a
Measures of Protection requested by Pakistan...........
India's failure to implement Third and Fourth Geneva Conventions
War between India and Pakistan in 1971 due to intervention of
Government of India in interna1 affairs of Pakistan......
Action by Security Council blocked by vetoes of Soviet Unio....
General Assembly resolution 2793 (VI)..............
Pakistan surrendered after lndian assurances concern.ne treatment of
prisoners of war ...................... 29
Security Council resolution 307(1971)called for observance of Geneva
Conventions ........................ 29
Pakistan and India the only belligerent powers.......... 30
Reoorts of India's intention to hand over to Banela Desh Pakistani 30
nationals accused of criminal offence............. 31
Repatriation of prisoners of war and civilian internees called for under
Geneva Conventions .................... 31X PAKlSTANl PRISONER OF WAR
Page
President of Pakistan's speech to National Assembly on 14 April 1972
concerning prospective negotiations .............. 33
India's insistence that Bangla. Desh should be associated with nego-
tiations for release of prisoners and internees .......... 34
India's ore-conditions for release of orisoners of war and civilian
internees. .......................... 34
I1akisian'ssiillingncsstu alloiv Ilcngalis io lea\.e for ~lin~liDe>h... 35
Pnhictan's unilatcral irnnlcrneniaiion of Genet3 Cunveniions .... 36
Ill-irelitment uf I'ïkisiani prlsoners of aar in India ...... 36
India's aiiiiude totrards 1niernaiii)nal Csnimiitcc of theRed Cross . . 37
Generous treatment of Indian orisoners of war inPakistan ...... 38
Announscmcnis by Rlingla D&h of intenlion to try Pdkiitani prisoners
of ~3r on charges tifgenocidéand crime, apinst hurnanity .. 38
Inciil's intentionIOhnnd ovcr to Banrl- Debh nri$sners oi \var for trial
on criminal charges .....................
India's denial that Pakistan has exclusive jurisdiction for trial of
Pakistani prisoners of war accused of criminal acts .......
Dispute submitted to Court falls within definition laid down hy
Permanent Court of International Justice in Mavrommatis Palestine
Concessionscase ......................
Implementation of Geneva Conventions started by both Parties but
halted hy India .......................
A "comoetent tribunal" for trial of Pakistani riso on ersf war cannot
be set up in Bangla Desh ...................
Principles of law which would justify indication of interim measures of
protection .........................
Order in Fisheries Jurisdictioncase sums up principles governing juris-
diction of Court ......................
Under Article 41 of Statute Court may indicate interim measures
without regard to existence ofjurisdiction of the Court ......
Bearing of Interhandel, Fisheriesand Aerial Incidentcases on question
of iurisdiction in relation toreauest for interim measures of orotec-
tion ............................
Jurisdiction founded on Article IX of Convention on Genocide ....
India's reservation on Article IX of Convention on Genocide .....
Application of Article 40 of Statute and Article 35, paragraph 2, of
revised Rules of Court ....................
India's declaration concerning Article IX of .on.ention on Genocide
is inadmissible .. ; ........:........ : ...
In Anglo-IranianOil Company and Interhandel cases Court did not
consider obiections to iurisdiction ...................
Bases for ~oÜrt'sjurisdiction on merits of case ..........
Pakistan's right to challenge' admissibility of Indian declaration on
Genocide Convention .....................
Advisom . .nion of 1951concernine Res-rvationsto the Conventionon
Genocide ..........................
Effect on reservations of Vienna Convention on Law of Treaties 1969
Court bas iurisdiction under Article 17 of 1928General Act for Pacific
Settlement of Disputes .......................
:Pakistan's succession to General Act by virtue of lndian ~ndependence
(International Arrangements) Order '1947 : .': .......
.Article 33 of General Act applies ...... : ...........". CONTENTS XI
Page
General Act is applicable under Agreement as to the Devolution of
International Rights and Obligations upon the Dominions of lndia
and Pakistan ........................
Jurisdiction of Court on merits could be founded on optional clause
declarations by India and Pakistan ..............
India's communiiaiionr of 23 May, 28 Alas and 4 June 1973amount to
full \lemorial on Caiuri'sjurts<liciion ............
Course folloaed by Indi3 amounis ro abuse of riroie3s of Couri . .
Pakistan founded lurisdiction of Court not on India's consent but on
instruments in force between the Parties ............
Articles 42 and 43 of Statute and Article 38, paragraph 3, of Revised
Rules of Court ........................
India's lettersof28 May and4 Juneareinadmissible ........
India's wrona-ul claim that Court's lack of iurisdiction is manifest. .
Aerjal IIICI</<Iase\ and Aorur~li~u ;a,er arc no1prccedent, .....
Couri hasjurisrliaion ai inA»~glo-lr~i>r;Oanil ('ortipo,>yl.»irrha,i,/~~land
Fislieries'Jrrrci asesic..i..n............
India's reservation to Convention on Genocide concerning jurisdiction
of Court ..........................
Pakistan's exclusiveriaht to trv oersons accused ..........
Alleged genocide acts 6ok place'in Pakistani territory and victims were
Pakistani nationals .....................
lnteiim measures reauested also because no fair trial canbe ex~ectedin
Bangla Desh .........................
Moiretory Cold case not a precedent ...............
Bangla Desh has no locrrsstandi.................
urgency or necd for interim mcasurc, of proieciion ........
Considerailon of I»rrrhu,tiklcase and Fi,h<,r;rsJtrrisil;crcase . . ,
Power of Court, under Article 41 of Statute
India recognizes danger of reprisals by Bangla Desh against Pakistani
prisoners held by India ...................
Ifaccused riso on erse handed over bvIndia to Banala Desh. Pakistan's
righis aould be irreparably prcjudikcd . T ........
No pariy should .inricipare Court's decision on merirs ......
I'aiiicrof Couri undcr Arii~le 33 of Generiil Act of 192h .....
Obligations of I'artics under 1972 Agrwiiicnt on Bilateral Kelarionr
belaecn the Go\ernmcni of Piikisran and the Ciovcrnment of India
Kequcsl thal, penrlingdecirian ,inmcriis, the Court sh(>uldrecall India's
ohligaiion IO repïtriate al1 priwners and internees .......
The Couri should cal1upon India io i)htxin frnni Rangla Desh the nsmei
Concluding remarksof ...................... ...........
ARGUMEN TF MR. BAKHTIA Rco~rt.) ..................
Replies to questions posed by Judges ..............
First question posed by Judge Sir Humphrey Waldock ......
Question posed by ~udgeOnyeama: .
India's reservation to Article IX of.Convention on Genocide in-
herently invalid .....................XII PAKlSTANl PRISONERS OF WAR
Page
Pakistan publicly objected ta resewations ta Convention on
Genocide . . . . . . . . . .. . . . . . . . .. . . . 73
No need ta object ta inherently invalid reservations . . . .. . 74
Question posed by Judge Jiménezde Aréchaga . . . . . . . . . 74
Pakistan was a party to 1928 General Act from date of inde-
pendence. . . . . . . . . . . . . . . . . . . . . . . . 75
Pakistan inberited India's international personality, treaty
obligations and membership of international organizations . . 75
Pakistan under no obligation ta notify succession to General Act 80
International Law Commission'sdraft Article7 onState Succession
League of Nations practice on change of status .. . . . . . . . 82
Indian Independence (international Arrangements) Order acted as
notification ta al1States . . . . . . . . . . . .. . . . . 82
Second question posed by Judge Sir Humphrey Waldock . . . . . 83
Article IV of Devolution Agreement of 15 August 1947 . . . . 84
Tbird question posed by Judge Sir Humphrey Waldock . . . . . 85
Devolution agreement was an international agreement between
India and Pakistan . . . .. . . . . . . . . . .. . . . 85
Comments on Indian letter of 4 June 1973 . . . . . . . . . . . . 85
Articles 19and 20 of Vienna Convention on the Law of Treaties . . 86
Convention on Genocide cannot be subject ta any resewations . . 86
Court's Judgment in case concerning Appeal Relaring to the Juris-. 86
diction of the ICA0 Council . . . . .. . . . . . . . .. . 87
India remains a party to Convention on Genocide . . . . . . . . 87
India's objection that new titles ofjurisdiction werenot mentioned in
Application is without force . . . . .. . . . . . . . . . . 88
Applicants can rely on more than one basis of jurisdiction . . . . 89
InStatute cannot excludejurisdiction of Courtc. .46. . . . .ph. . .f 89
General Act of 26 Seotember 1928still basicallv in force . . . . . 91
Pakistan succeeded t;right, and obligîtions unher 1928General Act 92
Desolution agreement binding as betueen lndia and Plikistan . . . 93
~ndia'srelianceon .ud-ment bi~akistan SuoremeCourt misconceived
and not relevant . . . . . . . . . . . . . . . . . . ...
JuConvention on Genocideal A.t. . . . .ect. . . . . .ti. . .nd. . .
Article 1,paragraph 2, of SimlaAccord a sufficient basis for interim
measures . . .. . . . . . . . . . . . . . . . . . . . . . .
India's resemations to Article 17 of General Act prohibited by
Article 39 of General Act . . . . . . . . . . . . . . . .
India's resewations are without legal effect. . . . . . . . . . .
There is no manifest lack of jurisdictionc. .4. . . . . .l A. . . .
Precedents of Interhandel, Fisheries Jurisdictionand Nuclear Tests
cases . . . . . . . . . . . . . . . . . . . . . . . .. . Page
Rejection of request for interim measuresof protection would
prejudiceproceedingson meritsand causeirreparableloss ... 100
Instruments providingpossiblebasis for jurisdicti....... 101
Ordersin Nuclear Testscaseapplicablemutarismutandisto Pakistan's
case ........................... 102
Finalsubmissions ....................... 107
Correspondence
Nos .1-73 ........................... 111APPLICATIONINSTITUTING
PROCEEDINGS THE AGENT FOR THE GOVERNMENT OF PAKISTAN
TO THE REGISTRAR
The Hague, II May 1973.
In accordance with Article 40, paragraph 1. of the Statute and Article 35,
paragraph 2, of the Rules of Court, as amended on 10 May 1972, 1 have the
honour to address to you this written Application of the Government of
Pakistan against the Government of India.
2. The subject of the dispute relates to charges of genocide against 195
of the over 92,000 Pakistani prisoners.of war and civilian internees king held
in India. The central issue is whether or not Pakistan has an exclusive claim
to exercisejurisdiction in respect of such persons hy virtue of Article VI of the
Convention on the Prevention and Punishment of the Crime of Genocide,
adopted hy the General Assembly on 9 December 1947, to which both India
and Pakistan are parties.
3.The succinct statement of the facts and grounds on which the claim of
the Government of Pakistan is based is as follows:
(a) On 21 November 1971, taking advantage of the interna1 situation in
East Pakistan. and acting in breach of her oblinations under the United
Nations charter, the Go;ernment of India launihed direct armed attacks
against Pakistan's Eastern Province. These armed attacks continued to
mount until Pakistan was forced to take measures in self-defence. The
fighting spread to West Pakistan and resulted in a state of war between
India and Pakistan on 3 December 1971. India notified the existence of
a state of war to Pakistan through the Government of Switzerland on
4 December 1971. (SeeAnnex A.)
(6) On 11 December 1971, the Chief of Staff of the Indian Armed Forces,
General S. H. F. 1.Manekshaw, called upon the Pakistan Forces in East
Pakistan to surrender to the Indian army. In a radio broadcast he gave
his "solemn assurance" that the personnel who surrendered would be
treated with the dignity and respect ail soldiers are entitled Io, and that
India would abide by the provisions of the Geneva Conventions.
Consequent upon this cal1 by General Manekshaw and wishing to avoid
any further bloodshed and destruction, the vastly outnumbered Pakistani
forces under the Eastern Command surrendered Io the Indian army on ,
16December 1971.
(c) The Extemal AîTairs Minister of the Government of India confirmed
this assurance of General Manekshaw in the United Nations Security
Council on 12December 1971in these words:
"India stands committed to dealing with the enemy forces according to
Geneva Conventions."
He also recalled that India's Chief of Army Staff had assured West
Pakistani troops in East Pakistan of their safe evacuation to West
Pakistan, if they surrendered.
(d) Consequent upon his call, on 16 December 1971 the Eastern Command
of the Pakistan army surrendered, and a large number of armed person-
nel became prisoners of war of India which was the sole belligerent4 PAKISTANI PRISONERS OF WAR
power in the international conflict with Pakistan. Consistent with Article
12 of the Third Geneva Convention of 12 August 1949, relative to the
Treatment of Prisoners of War, the prisoners passed into the hands of
the belligerent power, India. The. responsihility for the treatment of
prisoners of war, thus, in accordance with the ahovementioned Article,
rested exclusively with the "Enemy Power" India and not with the
individuals or military uoits that had captured them.
(e) The prisoners of war, including civilians paid out of the resources of
the armed forces, according to the information received through the
International Committee of the Red Cross, numher 81,888. In addition,
India continues to detain over 10,000civilians, among them 6,500women
and children.
(f) On 16 December 1971, India made a cease-fire cal1which was accepted
hy Pakistan and hostilities ceased at 14.30 hours GMT on 17 December
1971. The Security Council of the United Nations took cognizance of
the matter on 21 Decemher 1971. Mr. Swaran Singh, the Indian Foreign
Minister, stated hefore the Council:
"With the independence of 'Bangla Desh' and the surrender of Pakistan
troops there, their earliest possible repatriation from the Eastern theatre
has to be arranged. They are under our protection and we have under-
taken to treat them in accordance with the Geneva Conventions."
The Security Council adopted resolution No. 307, in respect of the
conflict on 21 Decemher 1971, in which it noted the cessation of hostili-
ties and called upnn India and Pakistan to withdraw from territories
occunied bv them. The Sefuritv Council also called for the observance
ofthe Cisne\,aCoti\cnti<ins. (.Se?Anne\: il.,
I.~ In January 1972. the ilver 92,000 Paki,rdni prisoners i~iu3r anJ .2iiili3n
internees, who were under Indian custody, were transferred to Prisoner
of War Camps in India. India, as the sole Enemy Power, had the right
to detain the Pakistani prisoners of war until such time as hostilities
ceased. However. 'in soite of the cessation of hostilities, which the
Security Councilacknowledged on 21 Decemher 1971, India continues
to hold the Pakistani prisoners of war in contravention of the Geneva
Convention. Pakistani civilians, who voluntarily placed themselves under
lndian protection on the hasis of the assurance of earliest possible
repatriation to West Pakistan, were wrongfully interned and continue to
be illegallyand improperly detained.
4. Meanwhile, during the occupation, with Indian eucouragement and
help, the leaders of East Pakistan set up that territory as the "independent
State of Bangla Desh" and declared. their intention of holding trials for
genocide and "crimes against huma nit^" of a number of Pakistani prisoners
of war now in Indian custody. The Government of Pakistan cannot agree to
the trial of its prisoners of war hy "Bangla Desh" since Pakistan has exclusive
jurisdiction over its nationals in respect of any acts of genocide allegedly
committed in Pakistani territory. Moreover, the con.ept ,f crimes against
humanity is not even remotely applicable. . ,
5. The "Bangla Desh" authorities have nevertheless continued to make
declarations of their intention to proceed with such trials, principally in
relation tn alleged acts.of genocide. This is apparent from Presidential Order
No: 8 of 1972, issued hy the President of "Bangla Desh" and entitled the APPLICATION 5
"Bangla Desh" Collaborators (Special Tribunals) Order, 1972. In the Pre-
amble of the Order it is stated as follows:
"Whereas certain persons, individuals or as members of Organizations,
directly or indirectly have been collaborators of the Pakistan armed
forces, which had illegally occupied 'Bangla Desh' by brute force, and
have aided and abetted the Pakisran armed forces Ni occirpalion in
co>,zmirtinggenocidc and crinles agairlsr lzunran.. ."
The intention, therefore, to try the personnel of the Pakistan army for the
alleged acts of genocide is clear. This intention is also borne out by the
numerous statements made by leaders of "Bangla Desh", some of which are
noted here:
(i) On 22 February 1972, a Government spokesman of "Bangla Desh"
stated that Pakistani officiaiswould be tried for acts of genocide.
Sheikh Mujibur Rehman also reiterated his intentions in this regard
(sec Annex C-1).
(ii) On 8 Junc 1972 "Bangla Desh" Prime Minister, Sheikh Mujibur
Rehman, reiterated that the trial of some Pakistani prisoners of war
on chargesof genocide would be held in "Bangla Desh" (seeAnnex C-II).
(iii) On 14 June 1972 a "Bangla Desh" Foreign Ministry official stated
that India had agreed to hand over some Pakistani prisoners of war
to "Bangla Desh" for interrogation and trial on charges of genocide
(seeAnnex C-III).
(iv) On 26 April 1972 the "Bangla Desh" Prime Minister stated that he
could not understand how people who had committed genocide could
escape the consequences and that they must be punished (see Annex
C-IV).
(v) On 17 January 1973 India told the United Nations that persons who
had committed grave crimes such as genocide and crimes against
humanity were, in its view, not entitled to any immunity under the
Geneva Convention and that the Joint Command of "Bangla Desh"
and lndian forces had the right to demand their evacuation on behalf
of the Government of "Bangla Desh" so that they could be taken in10
custody pending appropriate legal action under the' law of the land and
under international law (seeAnnex C-V).
(vi) On 17 March 1972, the Deputy Minister for External Affairs of lndia
told the Rajya Sabha that lndia had informed "Bangla Desh" that in
case it wanted to try any prisoner for committing genocide and other
war crimes, the lndian Government would give al1 assistance (see
Annex C-VI).
(vii) On 17 April 1973, the Dacca Radio announced that 195 Pakistani
be tried in "Bangla Desh" for committing
prisoners of war would
genocide and crimes against humanity (see Annex C-VII). This was
confirmed by the Foreign Minister of "Bangla Desh" Dr. Kamal
Hossain (seeAnnex C-VIII).
6. Under Article 118 of the Third Geneva Convention and Article 134 of
the Four~h~ Geneva Con~ ~ti~n. ~.~ lndia is under oblieation to re~atriate
prisoners of war and civilian internees immcdiïtcly upon the cersation of
hosiilitics. In ro fi~ras the prisonïrs of war capturesi on the Western Front arc.
conccrncd. Iiidia and I'dkistïn hai,c implcmcnted Article I IS of the Third
(3enei.a Con\,cnrion. Thus on I Decemkr 1972. I'akirian unilaterally rc.
turned 617 lndian prisoners of utîr so as to initiale the processof repïtrialion6 PAKISTANI PRISONERS OF WAR
under the Convention, without having any assurance from India that it would
also start a similar process. India, however, did respond by repatriating
only '550 Pakistani prisoners of war. But the process of implementation of
these obligations was never completed and India refused to take further steps
in implementation of its obligations under the above noted provision of the
Geneva Conventions. Instead, Indian leaders have made it clear that trials
will take place in "Bangla Desh" and 195 prisoners captured on the Eastern
Front shall be transferred to "Bangla Desh" by India for the purpose of trials
principally for acts of genocide.
7. In a Joint Statement on 17 April 1973 India and "Bangla Desh" have
decided as follows:
"Without prejudice ta the respective positions of the Government of
India and the Government of the People's Republic of Bangla Desh
the two Governments are ready to seek a solurion to al1 humanitarian
prohlems throughsimulfaneousrepatriation of the Pakistani prisonersof
war and civilian internees, except those required by the Governmentof
the People'sRepublic of Banaladeshfor trial on criminal chartes. the
repatriation ofBengalis forcibÏy detained in Pakistan and the repatriation
of Pakistanisin Bangladesh, i.e.al1non-Bengaliswhoowe allegianceand
haveoptedfor repatriation to Pakistan."
India as the Detaining Power has, therefore, sought to place conditions on the
repatriation of Pakistani prisoners of war after the cessation of active hostili-
ties and has acted in breach of its international obligations under Article 118
of the Third, and Articles 133 and 134 of the Fourth Geneva Convention.
India is also in breach of the aforementioned Conventions since it has not
complied with the provisions regarding humane treatment under the said
Conventions. It is ta be'noted in this context that 129 Pakistani prisoners
of war have been shot bv Indian Guards of whom 45 succumbed to their
injuries. In addition, 120-soldiers and civilians have, according to reports
received through the International Committee of the Red Cross, died of
illness. Over-crowding, unhygienic conditions, malnutrition and inadequate
medical facilities which characterize the captivity of Pakistani soldiers and
especially of the civilians are no douht the cause'for this loss of life.
8. The Government of India has further held out threats reiterated in the
statement of 17 April 1973, that those of the Pakistani prisoners of war and '
civilian internees who are required by the Government of Bangladesh for trial
would be transferred from India ta Bangladesh. According to Indian Press
reports, the number of such persons is 195.
9. Pakistan does not accept that India has a right ta transfer its prisoners
of war for trial to "Bangla Desh" and claims that by virtue of Article VI of
the Genocide Convention, persons charged with genocide shall be tried hy a
Competent Tribunal of the State in the territory of which the act was com-
mitted. This means that Pakistan has exclusive iurisdiction to the custody
of perhonj lic<used of the crimes of genocide, since litthe rime the ;i<ts are
slleged to hai,e ken commiticd, rhc icrriiory of tasi 1';ikistaii\\asuniiersîlly
rccogniled as pirr of Plikiirÿn. Further, the Genoiidc Conrçntion dot, no1
warrant the holding of over 92,000 persons in custody in breach of their right
under international law to be repatriated, merely because of allegations
against a few regarding acts of genocide.
10. Without prejudice to what has heen stated above it is not possible to
have a "Competent Tribunal" within the meaning of Article VI of the Geno-
cide Convention in "Bangla Desh", in view of the extreme emotionally APPLICATION 7
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 not
allowed to enter Dacca on 13November 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 Pakistani forces
in the alleged acts of genocide. Moreover, the requirementsof 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 a law is permissible.
11. Since the ahove facts disclose a question of interpretation and appli-
cation of the Genocide Convention, the jurisdiction of the International Court
of Justice is invoked under Article IX of the Genocide Convention, in
accordance with which disputes between contracting parties relating to the
interpretation, application or fulfilment of the Convention, shall be submitted
to the International Court of Justice at the request of any of the parties
to the dispute. Thus, the Court has jurisdiction under Article 36 (1) of its
Statute.
12. MAY 1TPLEASE THE COURT:
To adjudge and declare, whether the Government of India appears or not,
and after such time-limits as the Court may fixin the absence of an agreement
between the parties:
(1) That Pakistan has an exclusive right to exercise jurisdiction over the
one hundred and ninety-five Pakistani nationals or any other number,
now in Indian custody, and accused of committing acts of genocide in
Pakistani territorv. bv virtue of the aoolication of the Convention on the
Prevention and ~"nkhment of the chme of Genocide of 9 December
1948,and that no other Government or authority is competent to exercise
such jurisdiction.
(2) That the allegations against the aforesaid prisoners of war are related to
acts of genocide, and the concept of "crimes against humanity" or "war
crimes" is not applicable.
(3) That there can be no ground whatever in international law, justifying the
transfer of custody of these one hundred and ninety-five or any other
number of prisoners of war to "Bangla Desh" for trial in the face of
Pakistan's exclusive right to exercisejurisdiction over its nationals accused
of committing offences in Pakistan territory, and that India would act
illegallyin transferring such persons to "Bangla Desh" for trials.
(4) That a "Competent Tribunal" within the meaning of Article VI of the
Genocide Convention means a Tribunal of impartial judges, applying
international law, and permitting the accused to be defended hy counsel
of their choice. The Tribunal cannot base itself on ex-post facto laws nor
violate any provisions of the Declaration of Human Rights. In view of
these and other requirements of a "Competent Tribunal", even if India
could legally transfer Pakistani Prisoners of War to "Bangla Desh" for
trial, which is not admitted, it wouldbe divested of that freedom since
in the atmosphere of hatred that prevails in "Bangla Desh", such a
"Competent Tribunal" cannot be created in practice nor can it be
expected to perform in accordance with accepted international standards
of justice.
(Signed) J. G. KHARAS. PAKlSTANl PRISONERS OF WAR
ANNEXES TO THE APPLICATION
Annex A
Registpred No. D. 221
TheGazefreof India
Extraordinarv
PARTII-SECTION 3-SUB-SECTION (i)
PUBLISHED BY AUTHORITY
MINISTRY OF EXTERNAL AFFAIRS
NOTIFICATION
New Delhi, 4 December 1971
G.S.R. 1848.-In pursuance of clause (a) of section 19 of the Passports
Act, 1967(15 of 1967).the Central Government hereby declares that a foreign
country, namely Pakistan is committing external aggression against India.
[No. V1/49/34/71.1 APPLICATION
Annex B
United Nations. .
Security Council
Resolution No.:
S/RES/307/(1971)
21 December 1971.
THE SECURITY COUNCIL
Hriving discitssc<lhe grave situation in the sub-continent which remains a
threat to international peace and security,
Noring General Assembly resolution 2793 (XXVI) of 7 December 1971,
Noting the reply of the Government of Pakistan on 9 December 1971
(Document S/10440),
Noting the reply of the Government of India on 12 December 1971
(Document S110445).
Hoving lreordthe'statements of theDeputy Prime Minister of Pakistan and
the Foreign Minister of India,
Noting further the statement made at the 1617th meeting of the Security
Council by the Foreign Minister of India containing a unilateral declaration
of cease-fire in the western theatre,
Noring Pakistan's agreement to the cease-fire in the western theatre with
effect from 17December 1971,
Notirig that consequently a cease-fire and a cessation of hostilities prevail,
1. Demond~, that a durable cease-fire and cessation of al1 hostilities in al1
areas of conflict be strictly observed and remain in etïect until withdrawals
take place as soon as practicable of al1 armed forces to their respective
territories and to ~ositions which fullv respect the cease-fire line .in Jammu
and Kashmir supervised by the ~nited ~ations Military Observer Group in
India and Pakistan;
Calls won al1 member States to refrain from anv action which mav aga.a-.-
vate the s/iuation in the iub-c<iniincntor cnddnger hiernational puce;
Cull.~upon al1 thube conCerncd to tïkç al1 mcasures ncccsiïry io prcicrvc
humiin lifc and for the observance of ihc Gcne\,s Conventions oi 1949 and
to apply in full their provisions as regards the protection of wounded and sick,
prisoners of war and civilian population;
Callsfor international assistance in the relief of sutïerine and the rehabilita-
tion of refugees and their return in safety and dignity ta fheir homes and for
full co-operation with the Secretary-General to that eîTect;
Authorires the Secretary-General to aoooint if necessarv a soecialRe~resen-
tative to lend his good officesfor the soi"tion of humanitaria" problems;
Reqi~ests the Secretary-General to keep the Council informed without delay
in developments relating to the implementation of this resolution;
Decicies to remain seized of the matter and to keep it under active considera-
tion.
(Adopted by the Security Council at ils 1621stMeeting, on 21 December 1971.)10 PAKISTAN PRISONERS OF WAR
Following is the Texf of Interprefafive Statement Made by Somalia on Behalf
of Co-Sponsorsafter Adoption of Securify CouncilResolution357 (71)
STATEMEKT MADE BY MR. FARAH, PERMANENT
REPRESESTATIVE OF SOMALIA
Now that the draft resolution contained in document SI10465 has been
adopted hy 13 votes in favour, Iwo abstentions and none against, 1 wish Io
make a brief statement on behalf of the co-sponsors, in explanation of certain
aspects of the resolution.
1 should like Io make clear that this resolution was formed after very
intensive consultations with both parties, and both parties have subscribed in
general Io al1that is included in the tex1of the resolution.
In operative paragraph 1 of the resolution the Council demands of India
and Pakistan that not only should there be strict observance of a cease-fire and
a cessation of al1 hostilities in the areas of conflict, but that withdrawals
should take place ofal1their armed forces to their respective sides.
In the eastern theatre since fighting has stopped foreign armed forces should
be completely withdrawn as soon as practicahle from that theatre.
In the western theatre, the resolution just adopted would cal1 for with-
drawal of the armed forces of both oarties.
To summarize, where the draft'resolution speaks of withdrawals of al1
armed forces, it is in the foregoing context that the co-sponsors wish the terms
to beinterpreted.
The co-sponsors of the resolution have noted the declaration by the
Government of India that it has no territorial ambitions. In the implementa-
tion of this resolution, it is the view of the co-sponsors that the parties may
make any mutually acceptable arrangement or adjustment that they may
deem necessary. APPLICATION
Annex C-1
The HindusranTimesW , ednesday23 February1973
DACCA WILL TRY YAHYA
OTHERS FOR WAR CRIMES
Dacca, 22 February (PTI). Former Pakistani President Yahya Khan and
some top arrny personnel will be tried as war criminals by the Bangla Desh
Governrnent for the genocide they had committed during the nine months
of their occupation.
A Government spokesman told BSS today that the Government had al-
ready prepared a list of more than 500 war criminals and against each of
thern specific charges had been framed.
The spokesman said that two categories of tribunals would be set up
shortly to try the war criminals-one exclusively for the trials of those top
army officials who were responsible for planning the genocide and the other
for the lower ranks who executed therder of the high officia...
Meanwhile, Prime Minister Sheikh Mujibur Rehman today made an offer
that those Pakistani personnel who were not involved in the massacre and
killings in Bangla Desh could be allowed to go to their homelands in West
Pakistan and join their families.
But, he asserted, thatthose guilty of cornmitting genocide would be tried
on the soi1of this land, report B.. .
Annex C-II
Dawn, 6 June1972 (Pakisran)
POW TRIAL TO BE HELD INSISTS MUJIB
Dacca, 8 June. Bangladesh Prime Minister Sheikh Mujibur Rahman
reiterated yesterday that the trial of some Pakistani Prisoners of War on
charges of genocide would be held in Bangla Desh.
Sheikh Mujib was addressing a public meeting here to cornmemorate a
speech which he made in 1966 demanding maximum autonomy for his
country which then formed the Eastern Wing of Pakistan. The Sheikh told
the rally that his 1966 speech was the beginning of a movement which
culminated in the eventualindependence of Bangladesh. PAKlSTANl PRISONERS Of WAR
Annex C-III
Pakistan Times-15 June 1972
WAR TRIALS
INDIAAGREES TO TRANSFER 150 POWs TO "B.D."
Dacca, 14 June. lndia has agreed to hand ove1 150 Pakistani POWs to
"Bangla Desh" for interrogation and trial on charges of genocide. "B.D."
Foreign Ministry official said here today.
Lt. Gen. A. A. K. Niazi, former Military Commander in East Pakistan
would k among the 150.
The official said the prisoners would k brought from camps in India by
the end of this month. The Indian Government ,has confirmed that the
prisoners sought by"Bangla Desh" will be available.
Preparations are king made ta lodge Gen. Niazi and the other POWs in
his former operational headquartersin the Kurmitola Cantonment here .. .
(Reuter).
Annex C-IV
bidian Express, 4 April 1972
THE TRIAL
On the trial of war criminals the Sheikh was emphatic and unequivocal.
He could not understand how people who had committed genocide could
escape the consequences. "What would posterity say? The international
community would never forgive us if we were to let killings, rape and loot
go unpunished . .."
Annex C-V
Tlie HindustanTimes,dared 19 January 1973
New Delhi, 17 Jan. (PTI). India has told the United Nations that persons
who had committed grave crimes such as genocide war crimes and crimes
against humanity are, in its view, not entitled to any immunity under any of
the Geneva Conventions. 'APPLICATION .:. : 13
The Joint Command of the Bangla Desh and Indian forces has the right
to demand their evacuation on behalf of the Government of Bangla Desh so
that they could be taken into custody pending appropriate legal action under
the law of the land and under international law.
India's permanent representative at the United Nations, Mr. Samar Sen,
has conveyed this to the Secretarv-General. Mr. Kurt Waldheim. in his letter
dated 14 ~anuary ...
. . -. ~ ~ ~
Annex C-VI
The Times of Iiidia. Saturday, 18 March 1972
New Delhi, 17 March. The Deputy Minister for External Afïairs, Mr.
Surendra Pal Sinah told Mr. Sunder Sineh Bhandari in the Raiva Sabha 2, ~~-~~~~
ioday that there ;as no question of send&g the Pakistani prisoners of war
taken in Bangladesh back to Pakistan without the permission of the Bangla-
desh Government. .
("In the Lok Sabha, the Defence Minister, Mr. Jagjivan Ram, said in a
written answer that general repatriation of prisoners of war from lndia and
Pakistan is dependent on Pakistan's response to suggestions for bilateral
talks.")
Mr. Surendra Pal Singh further told Mr. Sitaram Kesari that if there were
charges of war crimes against POWs in India's custody then we would hand
them back to Bangladesh ifthe Government of Bangladesh wanted them.
Replying ta Mrs. Pratibha Singh, the Minister said the Government of
India fully respected the view of the Bangladesh Government on the need for
trial of those responsible for genocide, crimes against humanity and war
crimes in Bangladesh. The Government of lndia would co-operate with the
Government of Bangladesh in this regard as and when required to do.
Replying to further supplementaries, the Minister said no demand had been
received so far from the Bangladesh Government for handing over any POW
Io face trial. These were matters of detail which were being discussed and
sorted out by the Bangladesh Government itself.
India, he said, had told Bangladesh that in case it wanted to try any pris-
oner for committing genocide and other war crimes, the lndian Government
would give al1assistance. .. PAKlSTANl PRISONERS OF WAR
Annex C-VII
Radio BanglaDesh, Dacca, 17 AprilI973
One hundred and ninety-five Pakistani POWs will be tried in BD for
committing genocide, war crimes against humanity and breaches of the
Geneva Convention.
Announcine this official decision a Press release issued in Dacca this
afternoon said that the accused were expected to be produced before a special
tribunal in Dacca by the end of the nextmonth. Investigations into the crimes
committed by Pakistani occupation forces were almost complete
AnnexC-VU1
WAR CRIMES TRIAL OF 195 BY MAY-END
BY KIRIT BHAUMIK
"The Timesof India" NewsService
Dacca, 17 April. The Foreign Minister, Dr. Kamal Hossain, today an-
nounced the Bangladesh Government's decision ta try 195 POWs for war
crimes. The proceedings will begin by the end of May.
Dr. Hossain made the announcement soon after his return from New
Delhi where he had gone on a four day visit to draw up a joint strategy with
India for solving outstanding problems in the sub-continent.
He said the trial will be held in Dacca by a special tribunal comprising
persans of the status of Supreme Court Judge.
Details of the trial decision were given in the form of a Press release at a
news conference. Itsaid the trial will be held in accordance with universally
recognized juridical norms. Eminent international jurists will be invi-d as
---e-. ---.
Investigation of the crimes allegedly committed by the Pakistan occupa-
tion forces and members of the auxiliaw forces has been completed. The 195
prisoners ta be ttied have been ch2rged with serious crimes, including geno-
cide, crimes against humanity, breach of Article3 of the Geneva Convention,
murder, rape and arson.
The accused will be given facilities to arrange for their defence and engage
counsel of theirchoice, including foreigners.
The Foreign Minister, however, did not have an immediate reply to the
question whether Pakistani lawyers would be allowed ta appear at the trial. REQUESTFORTHE INDICATION
OFINTERIMMEASURESOFPROTECTION + .
.. .
8. . .
The Hague, 11 May 1973
. .
In accordance with Article 41 of the Statute, as read with Article 66 of the
Rules of Court, 1 have the honour to address to you a reauest to the Court
f~~ indication of interim measures of orotection in the case~ins~itu~ ~ ~v~,he -
Goicrnment of Piikijtsn ag3in~t the Guvernment of India rclating IO the con-
tinuril dçteniion ofùser 9.000 t'akistani Prisonersof War and iivilj3n intrrnces
and the threatened transfer of one hundred and ninety-five or any other number
of such persons to "Bangla Desh" for the purpose of trial for alleged acts of
genocide.
2. In that Application the Government of Pakistan haveprayed asfollows:
~ ...
(1) That Pakistan has an exclusive riglit to exercise jurisdiction over the
one hundred and ninety-five Pakistani nationals or any other number.
now in lndian custodv..a.d accused of committine acis "f eenocide ifi
Pakijtsni tcrritor). hy \trtur. iif the application of thc Convention on
the Prciention and Punijhmcnt uftheCrinieofGetiocirlroC9 Uecember
1948, and that no other Government or authority is competent to
exercise suchjurisdiction.
(2) That the allegations against the aforesaid prisoners of war are related
to acts of genocide, and the concept of "crimes against humanity" or
"war crimes" is not applicable.
(3) That there can be no ground whatever in international law. iustifvine
the transfer of cu\rodi, of ihese one hundred and ninety-hi; or.any
oiher numher of prisoncr, ofuar to "Rangla Derh" for trial in the face
of Pakistan's e~clu~iveri~ht to cxerci$e iurisdiction o\er its nationals
accused of committing offences in ~akiitan territory, and that India
would act illegally in transferring such persons to "Bangla Desh" for
trial.
(4) That a "Competent Tribunal" within the meaning of Article VI of the
Genocide Convention means a Tribunal of impartial judges, applying
international law, and permitting the accused to be defended by
counsel of their choice. The Tribunal cannot baseitsclf on exposr facto
laws nor violate any provisions of the Declaration of Human Rights.
In view of these and other requirements of a "Competent Tribunal''
even if India could leszallv transfer Pakistani Prisoners of War to
"Rangla Deih" for trial~u~hich is not admitted, it would be divested of
thiit frecdom since in the iitrnùsphere of hatred th31~revails in "Ranels
Desh", sucha "Competent ~ribunal" cannot be created in practice ior
can il beexpected ta perform in accordance with acceptedinternational
standards of justice.
3. In order, therefore, to preservethe respective rights of the parties pending
the decision of that case, the Government of Pakistan prays for the Court to
indicate the following interim measuresof protection:
(1) That the process of repatriation of prisoners of war and civilian
internees in accordance with international law, which has already
begun, should not be interrupted by virtue of charges of genocide
against a certain number of individuals detained in India.18 PAKISTAM PRISONERSOF WAR
(2) That such individuals, as are in the custody of India and are charged
with alleged acts of genocide, should not be traosferred to "Bangla
Desh" fortrial till such time as Pakistan's claim to exclusivejurisdiction
and the lack of jurisdiction of any otherovemment or authority in
this respect hasbeen adjudged by the Court.
(Signed) 1. G. KHARAS.
Requête introductive d'instance