The Pakistan authorities’ reaction to this offer was reluctant and conditional acceptance. The reiterated that normalization had been obstructed by India’s continuing to hold in illegal captivity over 90,000 Pakistani prisoners of war and civilian internees, despite the cessation of hostilities 16 months ago.
Quoting the Geneva Convention of 1949 on treatment of prisoners of war, Pakistan argued “it was the obligation of the detaining power to release and repatriate prisoners of war without delay after cessation of hostilities.” The obligation was unilateral and unconditional. The principle involved was basic to international law and any compromise on it, open or disguised, could set a calamitous precedent.
The Pakistanis in Bangladesh were also to be exchanged for Bengalis forcibly detained in Pakistan.
As such, the Government of Pakistan could not be expected to agree to or acquiesce in conditions which were irrelevant and unrelated to the repatriation of the prisoners. In addition, they questioned the competence of the authorities in Dacca to try any of them on criminal charges. According to the established principles of international law, only a competent tribunal set up in Pakistan had jurisdiction in this matter since the alleged crimes were committed in Pakistan and the persons charged were Pakistani citizens. It would therefore be repugnant to national sovereignty to surrender exclusive jurisdiction in this regard.
Bhutto offered to constitute a judicial tribunal of such a character and composition as would inspire international confidence. He also warned the authorities in Dacca that if they started trials as announced this would poison the atmosphere and seriously retard the establishment of a climate of peace and reconciliation, an urgent necessity for the welfare of the people of the subcontinent. Bhutto claimed that on his part he had shown restraint even to the extent of refraining from exercising Pakistan’s right to try Bengalis in Pakistan against whom there was irrefutable evidence of subversion, espionage and high treason. The terms of the statement issued simultaneously in Delhi and Dacca would not enable this restraint to continue.
Pakistan went to the International Court of Justice for an interim injunction against the transfer to Bangladesh of the 195 prisoners charged with war crimes. India challenged the courts jurisdiction to entertain the Pakistani complaint but this issue remained unresolved.
As regards the Pakistanis in Bangladesh, he argued that it was unique for an ethnic, linguistic or political minority to be persecuted, offered an option under pain of loss of job, property or even life, and arbitrarily expelled from its place of domicile, thus obligating Pakistan to receive its members. Addressing the international community, Bhutto said he felt distressed at “the tragic suffering of the victims of this prejudice and bigotry” and urged the community to persuade the authorities in Dacca to protect the basic human rights to which these people were entitled. In pursuance of its right, Pakistan went to the International Court of Justice for an interim injunction against the transfer to Bangladesh of the 195 prisoners charged with war crimes. India challenged the court’s jurisdiction to entertain the Pakistani complaint but this issue remained unresolved.
No substantial agreement was achieved by the three countries regarding the prisoners of war. At the humane level a trickle of repatriation continued through Wagah under the supervision of the International Red Cross, covering compassionate cases and the sick and wounded. According to an Indian Government spokesman, 2,264 persons had been repatriated by 11 July 1973, and of them 1,208 were sick and wounded. About the same time, 127 stranded Bengalis were flown to Dacca from Pakistan by a chartered aircraft, followed by 337 the next day. The trickle had started, but the major part of the problem remained unresolved until official level talks held in Delhi and Islamabad ultimately led to an agreement on 28 August.
The agreement envisaged simultaneous repatriation of all Pakistani prisoners except the 195 Bangladesh wanted, the repatriation of all Bengalis from Pakistan, including 203 threatened with reprisal trials, and the return to Pakistan of a substantial number of Pakistanis living in Bangladesh. The 195 prisoners were to be held in India and not tried while the three way repatriation was on.
The accord visualized a role for India in tripartite talks to discuss the fate of the 195 at a later date. By stressing the simultaneity of repatriation and retaining custody of the prisoners Dacca and New Delhi enjoyed an advantage in the event of a subsequent dispute over the number of Pakistanis in Bangladesh who, according to the terms of the agreement, should go to Pakistan but might not have been included among the “substantial” number to be repatriated initially.
The first phase of repatriation concluded on 30 September 1973. A total of 2,000 Bengalis, 2,600 Pakistanis and another 1,680 Pakistani prisoners, civilian internees and their dependants were repatriated. Repatriation of Bengalis from Pakistan and Pakistani nationals from Bangladesh was facilitated by an airlift the UN provided while the Pakistani prisoners, internees and their dependants were transported by train to the Wagah check post. The agreement made India responsible for working out the time schedule for repatriation in consultation with Bangladesh, Pakistan and international agencies. After the close of the first April phase the subsequent phases were speedily executed, and by 19 1974 some 78,416 out of the total Pakistani prisoners of repatriated. war and civilian internees in India’s protective custody had been repatriated.
India spent about Rs 350 million on the upkeep of the prisoners.
Meanwhile, Pakistan had recognized Bangladesh in February 1974,2 against the backdrop of the summit meeting of Islamic nations in Lahore, thus paving the way for Sheikh Mujibur Rahman to attend the meet and generally preparing for a reconciliation between Dacca and Islamabad. A tripartite meeting,3 as visualized by the earlier agreement, to decide the fate of the 195 charged with war crimes followed, and an agreement was signed on 9 April.
In the light of the conciliatory moves by both parties, and in particular the Pakistani Prime Minister’s appeal to the people of Bangladesh to forgive and forget the “mistakes” of the past, the Bangladesh Government decided not to proceed with the trials as an act of clemency. It was agreed that the 195 accused should be repatriated along with the other prisoners. In respect of the non Bengalis in Bangladesh, Islamabad cleared the movement to Pakistan of those who had been domiciled in West Pakistan or were employees of the central government or belonged to the families of employees, or were members of undivided families, irrespective of their original domicile. Hardship cases were also cleared on merit.