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The Indian Way of Humanitarian Intervention

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The Indian Way of Humanitarian Intervention Article The Indian Way of Humanitarian Intervention Gary J. Basst INTRODUCTION ......................................................................................................................................228 I. PAKISTAN'S CLAIMS OF SOVEREIGNTY ..............................................................................................233 A. Background ..........................................................................................................................233 B. Pakistan's Argument for Sovereignty ...................................................................................236 C. Nehruvian Ideology and the Problem of Sovereignty ...........................................................238 II. INDIA'S ARGUME NTS FOR HUMANITARIAN INTERVENTION ..............................................................239 A. The Argument from Human Rights ................................................................................. 244 1. India's Claims ...........................................................................................................244 2. The Rhodesian Precedent ..........................................................................................246 3. R esu lts....................................................................................................................... 2 4 9 B. The Argument from Genocide .............................................................................................253 1. India's Claims ...........................................................................................................253 2. Genocide Against Hindus ..........................................................................................255 3. R esu lts....................................................................................................................... 2 56 C. The Argument from Self-Determination ...............................................................................258 1. India's Claims ...........................................................................................................258 2. The Problem of Self-Determination Inside India ...................................................264 3. R esu lts....................................................................................................................... 2 65 D. The Argument from Sovereignty ..........................................................................................269 1. India's Claims ..........................................................................................................269 2.R esu lts.............. ......................................................................................................... 2 72 Il.M ULTILATERALISM .........................................................................................................................275 A. India's Isolation ...................................................................................................................275 B. The Security Council ...........................................................................................................280 C. The General Assembly ........................................................................................................283 D. Victory in Dhaka ...................................................................................................................285 IV. CONCLUSION: BANGLADESH AND STATE PRACTICE ........................................................................287 Professor of Politics and International Affairs, Princeton University. My thanks to Rita Alpaugh, Josd Alvarez, Arthur Applbaum, David Armitage, Katherine Glenn Bass, Seyla Benhabib, Michael W. Doyle, Noah Feldman, Jack Goldsmith, Ryan Goodman, David Singh Grewal, Oona Hathaway, Michael Ignatieff, Stathis Kalyvas, Paul W. Kahn, Robert 0. Keohane, Benedict Kingsbury, Atul Kohli, Mattias Kumm, Daniel Markovits, Pratap Bhanu Mehta, Martha Minow, Richard A. Primus, Srinath Raghavan, Kal Raustiala, Carol M. Rose, Scott D. Sagan, Anne-Marie Slaughter, Scott J. Shapiro, Kathryn Sikkink, James J. Silk, Michael Walzer, Steven Wilkinson, John Fabian Witt, the editors of the Yale Journalof InternationalLaw, and participants in the Yale Law School legal theory workshop. 228 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 40:227 INTRODUCTION In the intense debates about the legality of humanitarian intervention, commentators have argued at length over the Kosovo war in 1999, as well as other controversial instances of the use of force from Bosnia to Ukraine to Syria.I But perhaps the most consequential war is also the most forgotten. This was India's war against Pakistan in 1971, which followed a brutal onslaught by the Pakistani army on its own Bengali populace, and resulted in the independence of the fledgling state of Bangladesh. With hundreds of thousands of people killed in Pakistan's crackdown, these atrocities were far bloodier than Bosnia and, by some accounts, on approximately the same scale as Rwanda. 2 Untold thousands died in squalid refugee camps as ten million Bengalis fled into neighboring India in one of the largest refugee flows in history. The crisis ignited a major regional war between India and Pakistan, intensified their strategic rivalry for decades to come, drove Pakistan to get nuclear weapons, 3 and created Bangladesh, which has the eighth-largest population in the world today. And it brought the United States, the Soviet Union, and China into crisis brinksmanship that could have ignited a military clash among superpowers-possibly even a nuclear confrontation.4 The Bangladesh war was no less important for international law. While legal debates raged in 1971 about aggression, sovereignty, genocide, and self- determination, an eminent Indian law professor aptly wrote, "A number of international law concepts have been put to a severe test-a fiery ordeal, one is tempted to say--over the struggle for national liberation in Bangla Desh. 5 This case is crucial for what it shows about the weight given to international law and the United Nations by India, the world's largest democracy, emerging as a major actor in a new Asian century-when the future of international law and global order will be determined in large part by rising Asian great powers, above all China and India. In particular, Bangladesh offers important lessons about Asian interpretation and enforcement of international human rights law, about the real functioning of Security Council multilateralism, and about the state practice of intervention. The legal and political debate about humanitarian intervention usually I. See Harold Hongju Koh, Legal Adviser, U.S. Dep't of State, Remarks at the Annual Meeting of the American Society of International Law (Mar. 30, 2012), reprinted in 106 AM. SOC'Y INT'L L. PROC. 216 (2012). 2. Memorandum from U.S. Cent. Intelligence Agency (Sept. 22, 1971) (on file with Nixon Presidential Library and Museum, Yorba Linda, Cal., NSC Files [hereinafter NSC Files], Box 570, Indo- Pak Crisis, South Asia). 3. See Scott D. Sagan, The Perils of Proliferationin South Asia, ASIAN SURVEY, Nov.-Dec. 2001, at 1064; Scott D. Sagan, Why Do States Build Nuclear Weapons? Three Models in Search of a Bomb, 21 INT'L SECURITY 54 (1996). 4. GARY J. BASS, THE BLOOD TELEGRAM: NIXON, KISSINGER, AND A FORGOTTEN GENOCIDE (2013); SRINATH RAGHAVAN, 1971: A GLOBAL HISTORY OF THE CREATION OF BANGLADESH (2013). 5. Rahmatullah Khan, Legal Aspects, in BANGLA DESH: A STRUGGLE FOR NATIONHOOD 85 (Mohammed Ayoob et al. eds., 1971). 2015] The Indian Way of HumanitarianIntervention focuses on cases of major Western powers going to war, which can be dismissed as neoimperialism. As Martti Koskenniemi wrote, "[W]hat counts as law, or humanitarianism, or morality, is decided with conclusive authority by the sensibilities of the Western Prince." 6 But India's brief for saving Bangladeshis provides a crucial opportunity to hear the legal and moral voices of non-Westerners. To this day, Indian commentators celebrate the Bangladesh war as a matter of high ethical and juridical principle. The prominent Indian scholar Pratap Bhanu Mehta recently wrote, India's 1971 armed intervention in East Pakistan-undertaken for a mixture of reasons-is widely and fairly regarded as one of the world's most successful cases of humanitarian intervention against genocide. Indeed, India in effect applied what we would7 now call the "responsibility to protect" (R2P) principle, and applied it well. Some eminent political theorists agree: Michael Walzer has repeatedly pointed to Bangladesh as a paradigmatic case of a justified humanitarian intervention. 8 But that was not at all the view of international legal authorities. India found almost no support for its position at the United Nations, and international law experts were cold to India's claims as a whole.9 India was chastised for violating Pakistan's sovereignty and threatening the stability of the international order. As Thomas Franck and Nigel Rodley wrote soon after the war, "[U]se of unilateral force remains and should remain illegal except in instances of self-defense against an actual attack," and "the Bangladesh case, although containing important mitigating factors in India's favor, does not constitute the basis for a definable, workable, or desirable new rule of law which, in the future, would make certain kinds of unilateral military interventions permissible."' 0 While never minimizing the horror of the Pakistani army's atrocities,
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