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HUMANITARIAN INTERVENTION IN CONTEXT OF POSITIVE REALISM: WITH REFERENCE TO INDIAN INTERVENTION IN BANGLADESH 1971.
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HUMANITARIAN INTERVENTION IN
CONTEXT OF POSITIVE REALISM: WITH REFERENCE TO INDIAN INTERVENTION IN
BANGLADESH 1971.
War is inevitable part of mankind.
Earlier war was considered as just and unconditional. The development of International
Humanitarian law aimed to regularize the conduct of states and individuals in
war. It also authorized collective self-defense and intervention on
humanitarian grounds against the any state involved in mass atrocities. Positive
realism in the context is aimed a imagining an ideal circumstance and acting in
the manner to achieve it. Jus ad Bellum developed with authorized intervention
in International as well as non-international armed conflict. The six
principles incorporated in Jus ad bellum included the proportional intervention
and acting only if there is a reasonable prospect to success. In the context of
India’s Intervention in Bangladesh in 1971 although highly criticized was a
need of the hour. India acted in self-defense and on humanitarian grounds with
a strategic aim to resolve the conflict and liberate and protect the people of
Bangladesh. Positive realism works as a visionary view combined with the action
to meet the reality. This article tries to attribute the intervention by India
and humanitarian law in general in consonance with Positive realism. It also
establishes the concept of positive realism, a psychological concept into the
legal context. The article is divided into four parts and is elaborated at length
as discussed below.
INTRODUCTION
War
is an inevitable part of mankind, ever since man began establishing power and
control, war became a necessity. In earlier times, war was considered as just
and required no condition, it was only towards the end of 19th
Century, Henry Dunant realized the need to regularize the conduct of states and
individuals in war. The Geneva Conventions thus developed and the concepts of
‘Jus ad Bellum’ ‘Jus in Bello’ and ‘Jus Post bello’ formed the basis of International
Humanitarian Law (IHL). It developed post world-war II and found it’s place in
the United Nations Charter under Article 2 (7) read with 39, 41 and 42 of the
charter which mentions that the states enjoy their own sovereignty and the
United Nations have no right to intervene in the matters within the internal jurisdiction
of the state unless the Security Council determines the existence of threat to
international peace and security, if it so determines it can intervene through
economic or military intervention.[1]
India was in the middle of the conflict facing borders issues with Pakistan on
both sides in the west as well as the east. India was pressured by the
international community to accept the refugees from east Pakistan. After being
in the colonial regime for almost 400 years looted by the Britishers who even
created chaos in the demography of the region before leaving the nation, India
was still reviving itself when it had to face the crisis. I argue that India
was legitimate in doing so as the conflict was extended by Pakistan to India
following strikes on Indian defense bases and telecommunication structures that
led to the war of 1971 known as ‘the Bangladesh Liberation War’ of 1971 marked
with its end on 16th December, 1971. This article is divided into
four parts- part one deals with the development of International Humanitarian
law and laws of war; part two prescribes the concept of positive realism and
its relevance with Indian intervention in 1971; part three discusses the brief
history of Bangladesh’s problems, its effect on Indian territory and the
outcome of war and at last part four deals with the conclusion. All of this is
discussed as under:
The
development of International Humanitarian Law
International
Humanitarian Law though not codified has traces reigning back into the history
of wars. One such example of humanitarian laws was seen in the religious texts
of Sikhism where the gurus preached for humanity even during the times of
conflicts and crisis, it is the human conscience that a soldier is for the
state but a wounded is for humanity. It was only in the second half of 19th
Century following the Battle of Solferino and the influential position of Henry
Dunant that his ‘memory of Solferino’ later laid down and developed into the
texts of Geneva Convention 1864 for protection of wounded persons.
The
Saint Petersburg declaration 1868 banning use of lethal weapon that exploded
when coming in contact with soft substance like human tissue. The 1899 and 1907
Hague convention to regulate the manner in which laws are fought on land and
other related aspects of law. This was marked as the beginning of the
development of International Humanitarian Law in the pre-world war era.[2]
The
post world war witnessed the tremendous disaster with the use of advanced
weapons and chemical based weapon, war had no rules and thus the atrocities
were on the rise, grave danger was felt to the civilian life and civilian
infrastructure. It became an utmost important aspect to stop the war during the
Kellog-Briand Pact in 1928 which aimed at completely eradicating the war.
However, it failed miserably and few years later the world-war II emerged. It
became evident that wars cannot be avoided but the conduct of parties to the
war can be regularized thus various Geneva conventions and their additional
protocols developed to regularize the war on land, air, sea and the
determination of rights of the prisoners of war i.e., those persons who were
captured in the war. The world-war II also witnessed the grave violation of
human rights and thus, the International Humanitarian Law aimed the protection
of those who faced violations that attracted international attention. It also
found place in the United Nations Charter under chapter VII and later evolved
into theories of Just war and Responsibility to Protect.
Just
War Theory and Responsibility to Protect:
Just war:
The
Just war theory comprising of Jus Ad Bellum which prescribes the conditions on
which the states may resort to war is primarily based on six principles- The
war must be just and proportionate, it must be carried on with right
intention and not ulterior motives, it must flow from an authority, there
must be a reasonable prospect of success, and it must be the last
resort. If any war goes against these attributes, it amounts to breach of
International Law and attracts the application of United Nation’s Charter and
other developed conventions in this regard.
During
the East Pakistan revolution and other wars which were fought in the cold war
era, the functioning of the UN came to a standstill with major powers rising against
each other to establish their global influence, thus, United Nation became
ineffective in establishing and balancing its power. Post the Cold war period,
the two major conflicts in former Yugoslavia and Rwanda saw grave violations of
humanitarian rights, the UN Security Council established ad hoc tribunals for
the same however, the process was elongated. The Kosovo-Serbian war in the late
20th century saw the intervention of NATO peacekeeping troops with
an objective to put an end to the mass human rights violation and Genocide of
ethnic Albanians and mass killing of civilians without the authorization of UN
Security Council.
Responsibility to
Protect:
It
was the NATO’s intervention in Kosovo that despite being criticized for
violating the international law against state sovereignty was lauded by Kofi
Annan in his 2001 millennium report mentioning that the principle of state
sovereignty cannot override the breach of peace and security and authorize the
mass violation human right. This sparked the debate for responsibility to
protect a document prepare by a commission formed by Canadian Government termed
‘Responsibility to Protect’ came into existence. The document was drawn in an
effort to elaborate on ‘State Responsibility’ to protect its subjects, however,
residuary power also lies with International Community which in times of international
crimes committed as mentioned in the Rome Statute and Genocide convention along
with Geneva Convention and additional protocols may attract intervention.
Through responsibility to protect, international community may help another
state in curbing the international crimes of genocide, crime against humanity
and ethnic cleansing in a timely and effective manner which may derive force
from the United Nations security council as well as its general assembly. [3]The
classic example of responsibility to protect three decades back by a third
world country was India’s intervention in Bangladesh during 1971 which was
highly criticized by the International Community unless they themselves
authorized it three decades later.
Indian Intervention in Bangladesh:
The
colonial regime almost came to an end but with the destabilization and division
of Indian Sub-continent into India and Pakistan. Not only the nations, but the
region of Bengal was divided into two- East Bengal and West Bengal. The former
became the part of Pakistan and the latter remained with India. Thus, the
Pakistan was ambiguously divided into East-Pakistan (East Bengal) bordering
eastern India and West- Pakistan bordering north west Indian Nation. This
created a geographic barrier for India being the state lying between the rival
nation created by the British colonizers rooted with hatred towards each other.
The Problem that highly existed in Pakistan was lack of representation of East
Pakistanis. The west Pakistan group considered themselves ethnically major
despite the east being populous. The lack of representation and less rights of
being heard sparked the fame of rebellion in East Pakistan for creating an
autonomous ethnic state of ‘Bangladesh.’ In 1970 after years of protest and
deliberations on inclusion of east Pakistanis in Government and Politics, Awami
league emerged victorious which shattered the political standing of West
Pakistan. The elections were called off and the regime of Sheikh Mujib was not
accepted by Western Pakistani elites. this led to protest and mass
demonstration for freedom of East Pakistan. It was not only the political but economic
reasons which led to the war. The population of east Bengal was more than that
of the West. The Eastern Pakistani contributed to 62% of the revenue of
Pakistan against an allocation of only 25% in return. The rest 75% was only
used in the development of economy and pockets of West Pakistani authorities. The
East Pakistani stood up against their demand for establishing their autonomy
which was strongly resented by the Western Pakistan. In association with
various local eastern Pakistan group such as Jamaat-e-Islami and its subsidiary
combatants group Al-Badar and Al-Shams, it began its attack on almost anyone
who tried to come in their way, they killed enormous number of Bengalis as well
as targeted minority Hindus in Eastern Pakistan. Almost 30 million people were
killed by Pakistani forces and 10 million seek refuge in the only neighbor
country of India.[4]
India,
despite having its own problems and issues faced posted colonial retraction,
had enormous pressure to accept the refugees entering its territories to escape
the persecution happening in their home state. India’s resources allocation
witnessed a major shift with the inclusion of refugees and the tensions
increased within the Indian territory. It also served as an opportunity for
India to redefine its borders with Pakistan so that it will no longer be the
route to east and west Pakistan.
India
raised call in the United Nations accusing Pakistan of International Crimes of
Genocide of Hindu and East Bengalis, act of aggression and breach of
Humanitarian Law. International community did not take a serious cognizance of
the matter as it took in the case of Vietnam war. The Cold war situation
aggravated with US favoring Pakistan to seek the communism in China and the
Soviet backed India. After the continuous calls for seeking assistance by
international community on humanitarian grounds with the country of India
approaching UN and the Indian Prime Minister Mrs. Indira Gandhi taking a world
tour to preach about the aggravated situation, mass atrocities and lack of
resources and UN taking long time for a situation requiring immediate
attention. The state took its firm stand to intervene in the crisis if the
international community abstained from doing so.
It
was in December, 1971 when Pakistan agitated by India giving refuge to eastern
Pakistanis accusing it of providing military assistance and training go act
against Pakistan, Pakistan bombarded various places in Jammu & Kashmir,
Rajasthan, Punjab border, Agra and other places in India. Due to this, India
had no option but to intervene militarily in its self-defense and on
humanitarian grounds.
The
Intervention of India was highly criticized by the international community
particularly by the United States and a United nations Resolution was also
passed condemning the act of India in Pakistan which was termed as the
Pakistan’s Internal conflict which was then vetoed by Russia. However, the
outcome of Intervention proved to be fruitful for both Bangladesh as well as
India. It also resolved the prolonged conflict between east and west Pakistan
and helped in stabilizing the region. Although not backed by UN Security
Council as mentioned under article 39 of the United Nations Charter served as a
classic example of Responsibility to Protect which developed in late 20th
century. The action of India in Bangladesh liberation war was calculative, well
planned and properly executed to achieve a favorable outcome that was estimated
by the Indian state.
Understanding Positive
Realism
Positive
Realism is a branch of neo-realism which deals with the development and
eradication of criticisms in the Realism. Kenneth Waltz in his ‘Theory of
International Politics’ propounded neo-realism. The objectives of neo-realism
are to prescribe state based international relations through structure. There
exists no structure in international law and states are concerned with only
self-interest despite being obligated at a global level. A realistic structure
in international relation which currently exists is to seek the assistance of
an International Body named United Nations, however, failure to do so attracts
the authority to work towards self-interest. India worked towards the
self-preservation and interest along with an optimistic outcome which it wanted
to achieve. Positive realism works as a
visionary view combined with the action to meet the reality. It is a branch of
psychology and hence it is crucial to connect the context in legal concept. Positive
Realism which has not attained a theoretical base in jurisprudence yet remains
a branch of psychology, however, its legal traces can be seen right from the
fact that the concept entirely focuses upon what the judges will decide shall
be the law. Hence it can rightly be mentioned that “Law is what the
psychology of court decides.” [5]
American legal realism focuses on the view that whatever law may be enacted by
the legislation derives its force only through the process of interpretation by
the judges of the court. A judge may deliver the decision influenced by factors
such as social interest, public policy, his thoughts, ideologies and existing
state of mind. One such example could be ‘Bad Man Theory’ propounded by
Oliver W. Holmes which is highly influenced by the sociological perception
that a judge may make by physical appearance of an accused to deliver the
judgment. The argument here is to draw a link between psychology and law. The
article emphasizes on the interrelationship between law and psychology in
understanding the concept and origin of ‘Realism’. By ‘Positive Realism’ we
mean that an ideal scenario is hypothetically presumed to exist when acted in a
manner that has reasonable prospect of success. This is exactly what one of the
principles of Jus-ad-bellum highlights when intervening in an internal matter
of another state engulfed in gross human rights violation. Thus, in the above
case, when intervened in the matter of Bangladesh, its main objective was to
curb the humanitarian as well as its own geographical crisis created by the
colonial power.
Conclusion:
the article thus emphasizes the scope of
humanitarian intervention in a positive realistic approach; however, such
approach should be viewed in a modern sense of intervention to protect the
subjects of any state against the unjust actions of a party to the conflict committing
such atrocities. It should not be used as a tool for the state’s expansion
policy as the purpose is to work for the welfare of the civilians and
non-combatants. In our context, even India when it intervened in the
Bangladesh’s conflict with Pakistan was with the sole aim of achieving a
separate state for the East Bengalis whose partition was summed up by the
colonizers ambiguously. Had India not intervened in the conflict, the crisis
could have developed into a prolonged conflict as in the case of Israel-Palestine
which would have led to the killings of thousands of innocent people living
both ways. The existence of east Pakistan as was realized by India could pierce
the whole country which could pause its development and long standing in the
international community. Bangladesh and Pakistan too, have independently
developed in the region. The intervening move by India is to be justified both
on the ground of humanitarian intervention and self-defense. The positive
realistic approach of Indian strategy led to the successful resolution of the
crisis in a longer run. India’s act of humanitarian intervention was criticized
by the first world as it was opposed to their determined decision. India
realized that if it did not intervene, there would be more bloodshed in the
region which may result in global instability and a state of chaos in the south
-Asian region. A similar move was witnessed during the late 1990s in Kosovo war
where a first-world organization NATO intervened in the conflict situation, the
action was then justified on humanitarian grounds which proved that the
intention of creating international law was placed in the hands of the
developed and not the developing or under-developed.
[1] United Nations, Charter of the United Nations, 24
October 1945, http://www.unwebsite.com/charter (20 October 2023).
[2] International Review of the Red
Cross, Vol.104, (2022) Pg.no. 1802 How
international humanitarian law develops (icrc.org)
[3] United Nations, Responsibility
to Protect, (2005).
[4] European Foundation for South
Asian Studies, 1971 Liberation war, birth of Bangladesh and comparison with
present day Pakistan, 1971
Liberation war, birth of Bangladesh and comparison with present day Pakistan ::
EFSAS
[5] Ishika
Sareen, American Realism & Its Future in India: A Study, 4, Indian Journal of Law and Legal Research
(2022), https://www.ijllr.com/post/american-realism-its-future-in-india-a-study
(last visited Feb 7, 2024).
Article Information
HUMANITARIAN INTERVENTION IN CONTEXT OF POSITIVE REALISM: WITH REFERENCE TO INDIAN INTERVENTION IN BANGLADESH 1971.
Authors: SHRADDHA PANDEY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/10
- Issue 7
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International Journal for Legal Research and Analysis
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