As soon as the trial of  war criminals began, questions were raised from different quarters as to  how and why the 195 Pakistani soldiers were released in 1974 without  any trial. It has also been argued that those 195 Pakistanis were the  main war criminals and their release questions the merit of the current  trial process.1 
This article investigates the news reports  that were published in international media from December 16, 1971 to  April 15, 1974 to understand how and why those 195 Pakistanis were  accused and released. It also explores the avenues the post-1971  Bangladesh government pursued to put Pakistani and local war criminals  on trial. 
To remain true to the fact, the article  mostly cites news reports and avoids opinion pieces. Also, to remain  consistent, the article mainly cites the New York Times, though similar news was published in other newspapers.
Relocation of POWs to India
Saving the Pakistani soldiers from the resentment of the Bangladeshis, who endured the most horrific genocide of that time,2 became a major challenge once Pakistan's defeat was imminent. Though it was argued that "given a few more months the Bangladesh guerrillas might well have won on their own,"3 India's direct involvement not only reduced Bangladesh's sufferings, but also came as a saviour for the failing Pakistanis. India being a signatory of the Geneva Convention had an obligation to treat the Pakistani POWs lawfully.
Saving the Pakistani soldiers from the resentment of the Bangladeshis, who endured the most horrific genocide of that time,2 became a major challenge once Pakistan's defeat was imminent. Though it was argued that "given a few more months the Bangladesh guerrillas might well have won on their own,"3 India's direct involvement not only reduced Bangladesh's sufferings, but also came as a saviour for the failing Pakistanis. India being a signatory of the Geneva Convention had an obligation to treat the Pakistani POWs lawfully.
Hence, in the second week of December, Lt.  Gen. A.A.K. Niazi sent a request to the Indian high command for  ceasefire. On December 15, 1971 Gen. Sam Manekshaw, Indian chief of  staff, rejected Niazi's call and asked him to surrender by the next day.  He however assured that safety of Pakistan's military and para-military  forces would be guaranteed.4
When the Pakistani force made the rare  public surrender to the Joint Command of India and Bangladesh on  December 16, 1971, the "Instrument of Surrender" particularly  highlighted this issue:
Lieutenant-General Jagjit Singh Aurora  gives a solemn assurance that personnel who surrender will be treated  with dignity and respect that soldiers are entitled to in accordance  with the provisions of the Geneva Convention and guarantees the safety  and well-being of all Pakistan military and para-military forces who  surrender.5
Hence, when sporadic post-war clashes  erupted in different parts of Bangladesh, India became concerned about  the safety of the 90,000 POWs. Indian Maj. Gen. Dalbir Singh, who  accepted the surrender of some 8,000 Pakistanis in Khulna, mentioned  that their main concern at that time was to move the POWs to Indian  camps and withdrawal of Indian troops. He also added that, since the  collaborators were not covered by the Geneva Convention on POWs, "they  will be the responsibility of the Bangladesh government."6
Trial of War Criminals
On December 24, 1971, Bangladesh's Home Minister A.H.M. Kamaruzzaman announced that Bengali authorities had already arrested 30 top Pakistani civilian officials and would soon put them on trial for genocide.
On December 24, 1971, Bangladesh's Home Minister A.H.M. Kamaruzzaman announced that Bengali authorities had already arrested 30 top Pakistani civilian officials and would soon put them on trial for genocide.
On December 26, widows of seven Bangladeshi  officers killed by the Pakistanis asked India to help Bangladesh try  the Pakistani soldiers for their crimes. In response, Indian envoy Durga  Prasad Dhar, with an apparent reluctance, said: "India is examining its  responsibilities [towards the POWs] under international law."7
The leader of the liberation movement  Sheikh Mujibur Rahman -- soon after his return from captivity --  initiated a formal process of war crimes trial. 
On March 29, 1972, Bangladesh government  announced a formal plan to try some 1,100 Pakistani military prisoners  -- including A.A.K. Niazi and Rao Forman Ali Khan -- for war crimes.8 
The government offered a two-tier trial  process -- national and international jurists for some major war  criminals (probably for the high command of Pakistan army); and  all-Bangladeshi court for the rest of the war criminals.9
Initially, India agreed to hand over all  military prisoners against whom Bangladesh presented "prima facie cases"  (essentially, presenting evidence) of atrocities.10 
On June 14, 1972, India agreed to initially  deliver 150 POWs, including Niazi against whom Bangladesh gathered  evidence of atrocities, to Bangladesh for the trial.11 
On June 19, 1972 -- ten days before the  meeting between Zulfikar Ali Bhutto and Indira Gandhi -- Sheikh Mujibur  Rahman reaffirmed his commitment to try the Pakistanis. 
It is important to note here that, contrary  to popular belief, the India-Pakistan Simla Agreement signed on July 2,  1972 had nothing to do with the Pakistani POWs that Bangladesh wanted  to prosecute.12 
Pakistan Takes Bangladeshis Hostage
Many of the 400,000 Bangladeshis who lived in West Pakistan essentially became hostages at the hands of Pakistan government, who wanted to use them as bargaining chips to free the accused Pakistani war criminals. 16,000 Bangladeshi civil servants were discharged from Pakistan and were barred from leaving the country. Bangladesh alleged that many of its army officers were put in "concentration camps."13
Many of the 400,000 Bangladeshis who lived in West Pakistan essentially became hostages at the hands of Pakistan government, who wanted to use them as bargaining chips to free the accused Pakistani war criminals. 16,000 Bangladeshi civil servants were discharged from Pakistan and were barred from leaving the country. Bangladesh alleged that many of its army officers were put in "concentration camps."13
The International Rescue Committee (IRC)  also reported that many Bangladeshis were arrested in Pakistan just for  their "alleged intent to leave Pakistan," and thousands were jailed  without any charge. It also reported that the civilian Bangladeshis in  Pakistan were facing serious discrimination and harassment and were  being treated as "niggers."14 
Facing widespread torture, hundreds of  Bangladeshis began to escape Pakistan through the inaccessible "lawless  tribal territory of Afghanistan."15 However, Pakistan government even  placed a bounty of 1,000 rupees on each Bangladeshi seized while trying  to leave Pakistan.16 
The China Card
In a press conference on August 10, 1972, Bhutto said that Bangladesh believed "it had a kind of veto over the release of our prisoners," but "there is a veto in our hands also."17 Later on he confirmed that Pakistan had formally requested China to use its veto power to bar Bangladesh from becoming a member of the United Nations.18
In a press conference on August 10, 1972, Bhutto said that Bangladesh believed "it had a kind of veto over the release of our prisoners," but "there is a veto in our hands also."17 Later on he confirmed that Pakistan had formally requested China to use its veto power to bar Bangladesh from becoming a member of the United Nations.18
Bhutto knew how critical it was for the  war-torn Bangladesh to get the membership of United Nations and he used  his friendship with China over this. When Bangladesh applied to the  United Nations, China cast its veto on August 25, 1972 for the first  time in the Security Council to bar Bangladesh's membership.19  Bangladesh was refused United Nations membership for wanting to try the  war criminals.
The Trial-Repatriation Deadlock 
Bhutto kept on insisting that Pakistan would only recognise Bangladesh after its prisoners were released. In November 1972, Bangladesh and India decided to repatriate some 6,000 family members of Pakistani POWs and, in response, Pakistan agreed to release some 10,000 Bangladeshi women and children held in Pakistan.20 However, the fate of most Bangladeshis trapped in Pakistan remained uncertain.
On April 17, 1973, after four days of  bilateral talks Bangladesh and India announced a "simultaneous  repatriation" initiative to end the prisoner-deadlock. Under this  proposal, India would repatriate most of the 90,000 Pakistani POWs. In  return, Pakistan would release the 175,000-200,000 stranded Bangladeshis  and take back 260,000 non-Bangalis (Biharis) from Bangladesh.21
Bangladesh, however, made it clear that  India would not release 195 of the initially accused Pakistani POWs and  Bangladesh would try them, along with its local collaborators, for war  crimes. 
Pakistan accepted the proposal in  principle, but agreed to take back only 50,000 Biharis. Bhutto however  furiously refused Bangladesh's position to try the accused Pakistanis in  Bangladesh. He threatened that if Bangladesh carried out the trial of  the 195 Pakistanis, Pakistan would also hold similar tribunals against  the Bangladeshis trapped in Pakistan. In an interview on May 27, 1973,  Bhutto said:
"Public opinion will demand trials [of  Bangladeshis] here … We know that Bangalis passed on information during  the war. There will be specific charges. How many will be tried, I  cannot say."22 
To prove that it was not just an empty  threat, Pakistan government quickly seized 203 Bengalis as "virtual  hostages" for the 195 soldiers.23 Bhutto also argued that, if Bangladesh  tried its POWs, Pakistanis who were already "terribly upset" would  topple Pakistan's political leadership, and he claimed that his  government had already arrested some top-ranking military officials for  such conspiracy.24 
Meanwhile, on August 28, 1973, India and  Pakistan signed the Delhi Accord, which followed the Bangladesh-India  "simultaneous repatriation" proposal. This allowed the release of most  of the stranded Bangalis and Pakistanis held in Pakistan and India  respectively for almost two years. 
The tripartite repatriation began on  September 18, 1973 and some 1,468 Bangalis and 1,308 Pakistanis were  repatriated within the first week.26 Pakistan and India agreed that the  issue of 195 accused Pakistanis would be settled between Bangladesh and  Pakistan.27 Pakistan kept the 203 Bangladeshis out of this repatriation  process.
Legal Preparations 
Though a tripartite diplomatic impasse clouded the trial of the Pakistani POWs, the Bangladesh Collaborators (Special Tribunals) Order 1972 was announced to try the local war criminals. Bangladesh also continued to amend its legal system in preparation for the trials of both Pakistanis and local collaborators.
Though a tripartite diplomatic impasse clouded the trial of the Pakistani POWs, the Bangladesh Collaborators (Special Tribunals) Order 1972 was announced to try the local war criminals. Bangladesh also continued to amend its legal system in preparation for the trials of both Pakistanis and local collaborators.
On July 15, 1973 Bangladesh amended its  constitution for the first time to ease the process of the war crimes  trials. Article 47 (3) of our national constitution, added under the  first amendment, states that: 
47 (3) [N]o law nor any provision thereof  providing for detention, prosecution or punishment of any person, who is  a member of any armed or defence or auxiliary forces or who is a  prisoner of war, for genocide, crimes against humanity or war crimes and  other crimes under international law shall be deemed void or  unlawful."28
On July 20, 1973, the International Crimes  (Tribunals) Act, 1973 was announced "to provide for the detention,  prosecution and punishment of persons for genocide, crimes against  humanity, war crimes and other crimes under international law."29
Interestingly, though the trials of the  collaborators were abandoned, Article 47(3) and the International Crimes  (Tribunals) Act, 1973 -- which offers the trial of war criminals  including the "auxiliary" forces for their crimes against humanity --  were not cancelled by any government and are still applicable. 
Simultaneous trial and Pakistan's apology
In response to Bangladesh's desire to keep the 195 Pakistanis out of the simultaneous repartition process, Pakistan government in the last week of April 1973 issued a statement saying:
In response to Bangladesh's desire to keep the 195 Pakistanis out of the simultaneous repartition process, Pakistan government in the last week of April 1973 issued a statement saying:
Pakistani government rejects the right of  the authorities in Dacca to try any among the prisoners of war on  criminal charges, because the alleged criminal acts were committed in a  part of Pakistan by citizens of Pakistan. But Pakistan expresses its  readiness to constitute a judicial tribunal of such character and  composition as will inspire international confidence to try the persons  charged with offenses.30
After about one year, Bangladesh finally  accepted Pakistan's proposal, fearing for the fate of 400,000 Bangalis  trapped in Pakistan and to gain the much-needed access to the United  Nations. With faith that Pakistan would hold the trial of the 195  Pakistanis involved in the wartime atrocities, Bangladesh withdrew its  demand for trying the Pakistanis in Dhaka. Upon the formal  understanding, the last group of 206 detained Bangladeshis was allowed  to return home on March 24, 1974.31 It is clear that the 195 Pakistanis  were not freed without charges, rather they were handed over to Pakistan  so they could be prosecuted by the Pakistani authorities.
Bangladesh's position was then formalised  on April 10, 1974 through a tripartite agreement among Bangladesh,  India, and Pakistan. It was reported internationally that Pakistan  government offered apology to Bangladesh on the same day.32
Article 14 of the tripartite agreement  noted that the prime minister of Pakistan would visit Bangladesh in  response to the invitation of the prime minister of Bangladesh and  "appealed to the people of Bangladesh to forgive and forget the mistakes  of the past in order to promote reconciliation."
At that time, Bangladesh continued the  trial of local collaborators and hoped that Pakistan would keep its  promise and try those soldiers for the horrific crimes they committed  against humanity. 
1 Pro-BNP, Jamaat lawyers threaten to resist trial of war criminals, The Daily Star, April 17, 2010
2 For details on genocide and atrocities committed by the anti-liberation forces, see www.genocidebangladesh.org
3 Yohn, T. (2001) Letters to the Editor: Who Cares About the Bengali People? The New York Times, Dec 31, 1971; pg. 18
4 Text of Indian Message, The New York Times, Dec 16, 1971; pg. 16
5 Reuters, (1971), “The Surrender Document” published in the New York Times, Dec 17, 1971, pg. 1
6 Rangan, K. (1971). “Bengalis Hunt Down Biharis, Who Aided Foe”, The New York Times, Dec 22, 1971, pg. 14
7 India Weighs Bengali Plea To Try Pakistani Officials, The New York Times; Dec 27, 1971; pg. 1
8 Bangladesh Will Try 1,100 Pakistanis, The New York Times, Mar 30, 1972; pg. 3
9 ibid
10 India opens way for Dacca trials. The New York Times; Mar 18, 1972; pg. 1
11 India to Deliver 150 P.O.W.'s To Bangladesh to Face Trial, The New York Times, Jun 15, 1972, pg. 11
12 For Text of the Agreement, see http://mea.gov.in/jk/sim-ag.htm
13 Pakistan Denies Charge, The New York Times, Apr 17, 1972; pg. 6
14 Official Reports 2,000 Bengalis Held in Pakistani Jails, The New York Times, Dec 13, 1972, pg. 3
15 Wave of Bengalis fleeing Pakistan, The New York Times, Nov 12, 1972, pg. 10
16 Official Reports 2,000 Bengalis Held in Pakistani Jails, The New York Times, Dec 13, 1972, pg. 3
17 Transcript of President Bhutto's Press Conference on Aug 10, 1972. cited in Burke, S.M. (1971). “The Postwar Diplomacy of the Indo-Pakistani War of 1971”. Asian Survey, Vol. 13, No. 11 (Nov., 1973), pp. 1039
18 Weekly Commentary and Pakistan News Digest, Nov. 24, 1972. cited in Burke (1971). ibid
19 A Veto By Peking, The New York Times, Aug 27, 1972; pg. E3
20 Pakistan to Allow 10,000 to Return to Bangladesh, The New York Times, Nov 23, 1972; pg. 15
21 India and Bangladesh Offer Plan For End of Deadlock on Prisoners, The New York Times, Apr 18, 1973, pg. 97
22 Bhutto Threatens to Try Bengalis Held in Pakistan, The New York Times, May 29, 1973; pg. 3
23 India-Pakistan Talks Reach Impasse, The New York Times, Aug 26, 1973; pg. 3
24 Bhutto Threatens to Try Bengalis Held in Pakistan, ibid
25 Bengalis and Pakistanis Begin Exchange Today, The New York Times, Sep 19, 1973; pg. 6
26 600 Bengalis, Pakistanis Freed and Flown Home; The New York Times, Sep 24, 1973; pg. 9
27 India to release 90,000 Pakistanis in peace accord. The New York Times, Aug 29, 1973; pg. 1
28 The Constitution of the People's Republic Of Bangladesh. See www.pmo.gov.bd/constitution
29 The International Crimes (Tribunals) Act, 1973 (ACT NO. XIX OF 1973). 20th July , 1973. Government of Bangladesh.
30 Pakistan Affairs, May 1, 1973. cited in Burke (1971) ibid pp. 1040
31 Repatriation Is Completed For Bangladesh Nationals. The New York Times, Mar 25, 1974; pg. 8
32 Pakistan Offers Apology to Bangladesh, The New York Times, Apr 11, 1974; pg 3.
6 Rangan, K. (1971). “Bengalis Hunt Down Biharis, Who Aided Foe”, The New York Times, Dec 22, 1971, pg. 14
7 India Weighs Bengali Plea To Try Pakistani Officials, The New York Times; Dec 27, 1971; pg. 1
8 Bangladesh Will Try 1,100 Pakistanis, The New York Times, Mar 30, 1972; pg. 3
9 ibid
10 India opens way for Dacca trials. The New York Times; Mar 18, 1972; pg. 1
11 India to Deliver 150 P.O.W.'s To Bangladesh to Face Trial, The New York Times, Jun 15, 1972, pg. 11
12 For Text of the Agreement, see http://mea.gov.in/jk/sim-ag.htm
13 Pakistan Denies Charge, The New York Times, Apr 17, 1972; pg. 6
14 Official Reports 2,000 Bengalis Held in Pakistani Jails, The New York Times, Dec 13, 1972, pg. 3
15 Wave of Bengalis fleeing Pakistan, The New York Times, Nov 12, 1972, pg. 10
16 Official Reports 2,000 Bengalis Held in Pakistani Jails, The New York Times, Dec 13, 1972, pg. 3
17 Transcript of President Bhutto's Press Conference on Aug 10, 1972. cited in Burke, S.M. (1971). “The Postwar Diplomacy of the Indo-Pakistani War of 1971”. Asian Survey, Vol. 13, No. 11 (Nov., 1973), pp. 1039
18 Weekly Commentary and Pakistan News Digest, Nov. 24, 1972. cited in Burke (1971). ibid
19 A Veto By Peking, The New York Times, Aug 27, 1972; pg. E3
20 Pakistan to Allow 10,000 to Return to Bangladesh, The New York Times, Nov 23, 1972; pg. 15
21 India and Bangladesh Offer Plan For End of Deadlock on Prisoners, The New York Times, Apr 18, 1973, pg. 97
22 Bhutto Threatens to Try Bengalis Held in Pakistan, The New York Times, May 29, 1973; pg. 3
23 India-Pakistan Talks Reach Impasse, The New York Times, Aug 26, 1973; pg. 3
24 Bhutto Threatens to Try Bengalis Held in Pakistan, ibid
25 Bengalis and Pakistanis Begin Exchange Today, The New York Times, Sep 19, 1973; pg. 6
26 600 Bengalis, Pakistanis Freed and Flown Home; The New York Times, Sep 24, 1973; pg. 9
27 India to release 90,000 Pakistanis in peace accord. The New York Times, Aug 29, 1973; pg. 1
28 The Constitution of the People's Republic Of Bangladesh. See www.pmo.gov.bd/constitution
29 The International Crimes (Tribunals) Act, 1973 (ACT NO. XIX OF 1973). 20th July , 1973. Government of Bangladesh.
30 Pakistan Affairs, May 1, 1973. cited in Burke (1971) ibid pp. 1040
31 Repatriation Is Completed For Bangladesh Nationals. The New York Times, Mar 25, 1974; pg. 8
32 Pakistan Offers Apology to Bangladesh, The New York Times, Apr 11, 1974; pg 3.
BY : Syeed Ahamed.
 



 
