The Indian media propaganda, using both the conventional means and the latest info-super highway, on the recent unfortunate border skirmishes between the Bangladesh Rifles (BDR) and the Indian Border Security Force (BSF), has mounted a lot of misunderstandings and controversies across the world. The initial hype was aimed at blaming the BDR for its criminal adventurism. With the filing of a First Information Report (FIR) at an Indian police station complaining of 'international war crime' by the BSF against the BDR, the situation gets complicated. Clearly vested quarters are out to cash on the alleged 'disfiguration of the bodies of BSF men' and thereby malign Bangladesh at international human rights forums.

The first Information report on the alleged 'war crime'

According to a report of the UNI, the Border Security Force (BSF) has lodged an FIR complaining of international war crime against the Bangladesh Rifles (BDR) for 'inhuman' killing of 16 BSF jawans on April 18, Mankachar police station Office-in-Charge Anil Deka said. "On April 21, a couple of BSF officials filed an FIR against BDR at Mankachar police station for killing of 16 of their colleagues," Deka said.

He, however, was confused as to what should be the course of action as in the last 50 years, not a single FIR of that magnitude had been filed. The BSF lodged an FIR with the Mankachar police station stating, among other things, that the BDR had killed 15 of its jawans "near the Kakripara BOP" (about three km from here) on the Indo-Bangla border in the "intervening nights of 18, 19 and 20 April, 2001".

The FIR stated that only seven bodies could be identified. Eight others could not be identified because of "mutilation and decomposition". The FIR requested that the matter be investigated. The police registered a case (42/2001) on the basis of the FIR under Sections 302 and 121 of the Indian Penal Code, relating to waging war against the state.

The BSF lodged the FIR after the BDR returned the bodies of the 15 jawans. "I am waiting for the statements of the two injured jawans to begin my investigation," Deka said while admitting that it would be difficult to undertake the whole operation as it involved national security.

Decomposed, not mutilated

The FIR reflects what the Indian authorities have been asserting for last few days that they received the bodies in mutilated condition; some soldiers were beheaded while some other shot point blank, they maintained. A number of investigations carried out by local and national dailies including the front page investigative report of the Daily Star (April 24) reveal that the 'BSF men were killed during a shootout and no act of savagery had taken place'. In fact the bodies were lying in wet paddy field for more than 36 hours due to the tense situation and they were also exposed to direct sunlight. As a consequence the bodies were decomposed and partially swelled. To reduce an opposition physically in such a situation as the BSF and the BDR were in, one had to get in close proximity of other. Close range firefight was natural outcome of the battle. It is also reported that the BSF men set fire on houses of the villagers, some of the villagers were also injured including children. During the skirmishes with the villagers BSF men might also receive injuries as the villagers had to resist them in self-defence. The villagers had to take the initiative to recover the bodies of BSF men as the decomposed bodies began to reek and the mark(s) of injuries might be inflicted during the skirmishes with the villagers.

Improper forum?

According to some over-enthusiastic Indian media reports, this FIR and subsequent referral of the case to the lower courts of Dhubri could be the beginning of India's pursuit for justice in the International Court of Justice or International War Crime Tribunal.

In the absence of any permanent international criminal court or tribunal, such attempt is seen by many as a strategic move of shaming Bangladesh at international forums. Currently there are two international criminal tribunals with specific geographical mandate: one for Rwanda and the other for former Yugoslavia. Certainly they don't have any jurisdiction over the matter.

India may proceed to the International Court of Justice(ICJ) but that is, indeed a difficult option. Article 36 of the Statute of the ICJ states:

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other states accepting the same obligations, the jurisdiction of the court in all legal disputes concerning:

In the absence of an agreement accepting compulsory jurisdiction over a specific dispute, India alone can not initiate a proceeding against Bangladesh without the latter's consent.

The question of forming a special international tribunal for these petty border skirmishes where India herself an intruder with a proven track record of killing Bangladeshi civilians simply does not arise. Moreover by refraining from ratifying the only border agreement of 1974 with Bangladesh India shows its dearth of interest towards peaceful settlement of demarcation issues. It is also evident that the bodies of the BSF men were not mutilated, rather decomposed due to the exposure of the bodies in the sun for quite a long period. The Indian attempt to establish 'war crime' charge against the BDR seems to be baseless, politically motivated and aimed at 'hate campaign' against Bangladesh.

Defining war crimes, defending territorial integrity

In the wake sweeping allegations of war crimes against the members of the BDR Article 8 of the Rome Statute of the International Criminal Court consolidates the definition of war crimes (taking note of other previous treaties/statutes) in the following terms:

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:

In the light of the above mentioned fact and the definition, it is apparent that the BDR did not commit war crime, did not do anything as a part of a policy, or as part of a large scale commission of such crimes; rather they acted in self-defence and shot the intruder BSF men to protect the territorial integrity of Bangladesh. It is now admitted fact that the Roumari occurrence was a sequel to the Padua episode of the previous day, when the BDR regained, without a shot being fired, and without a single casualty, a portion of Bangladesh territory in Tamabil area. The purported attempt by the BSF to construct a pucca road from the no man's land to the Indian territory, which was a sheer violation of international law, threatened the territorial integrity of Bangladesh. The BDR encircled the BSF camp to diminish that threat. Article 2(4) of the United Nations Charter firmly states, "All members shall refrain in their international relations from the threat or use of force against the territorial integrity political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." India, by constructing pucca road unlawfully, in fact threatened the territorial integrity of Bangladesh. The response of the BDR was, thus, fully justified.

Right to self-defence and the UN charter

India blamed the clashes on "criminal adventurism" by the BDR saying its units had operated independently of the government in Dhaka. The facts from the ground testify that the initial incursion had come from the Indian side. In fact it was the "inefficient and illegal adventurism" of the BSF that led to the unprecedented border clashes.

Self-defence is an inalienable right of any nation. Right of self-defence, both individually and collectively is widely recognised in international law. Article 51 of the UN Charter affirms, "Nothing in the present Charter shall impair the inherent the right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…"

In no way shooting the intruding BSF men for protecting the territorial integrity can amount to the alleged 'war crime'. The propaganda of the act of mutilation needs concrete and substantial proofs without which India cannot accuse a force engaged in lawful duty of protecting the territory of Bangladesh, a sovereign country.

Facts not fiction

"We cannot take Bangladesh into confidence until the killers of the 16 BSF personnel are punished," I.D. Swami, the Indian State Minister for Interior Affairs, said when visited the borders along Assam on Wednesday. On 27 April, he visited Pyrdiwah village in Meghalaya, which was briefly captured by BDR units, and was later scheduled to review the security situation with top paramilitary BSF commanders. The Minister did not consider at all pertinent facts of continuing border clashes.

In the last 25 years, there have been over 600 incidents where the BDR have clashed with the BSF in which more than 350 people were killed and over 250 injured. In 2000 alone, 47 Bangladeshi civilians were killed by the BSF men. They were killed on Bangladeshi soil. Most importantly, the BDR have never crossed into the Indian territory and have never attacked an unarmed Indian civilian. Before making any statement, Indian state functionaries should remember these simple facts.

Implementing the indira-mujib treaty

Agreement on demarcation of Bangladesh-India land boundary was signed between India and Bangladesh in 1974. The treaty directly deals with contentious issues. Article 2 states, "The Governments of Bangladesh and India agree that territories in adverse possession in areas already demarcated in respect of which boundary strip maps are already prepared, shall be exchanged within six months of the signing of the boundary strip maps by the plenipotentiaries. They may sign the relevant maps as early as possible and in any case not later than the 31st December 1974. Early measures may be taken to print maps in respect of other area where demarcation has already taken place. These should be printed by 31st May, 1975 and signed by the plenipotentiaries thereafter in order that the exchange of adversely held possessions in these areas may take place by the 31st December. 1975. In sectors still to be demarcated transfer of territorial jurisdiction may take place within six months of the signature by plenipotentiaries on the concerned boundary strip maps."

No such step has yet been taken. Bangladesh ratified the treaty in the very year when the Mujib-Indira land boundary accord had been signed. As the treaty involved demarcation of territory, the House of the Nation had to amend the Constitution through the Constitution (Third Amendment) Act 1974. India's failure to ratify the accord through the Lokshabha (parliament), even to this day, clearly reflects its sheer lack of political willingness to give life to the accord. The agreement could not take effect as, according to article 5 of the ill-fated treaty, it was supposed to "take effect from the date of the exchange of the Instrument of Ratification."

If peace has to prevail, the treaty will have to be ratified by India first with true political will. The implementation will then follow the suit.

A. H. Monjurul Kabir, a British Chevening Scholar, is Director of Law Watch, a Dhaka based think-tank on human rights and legal issues.