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  1. Bangladesh and India routinely accuse Pakistan of committing a genocide of 3 million people in 1971.

  2. Bangladesh also demands an apology from Pakistan.

The demand for an apology is only due when the atrocities are proven beyond doubt. Then again, if the atrocities are proven beyond doubt, an apology won't suffice. It would automatically go to a criminal court.

However, surprisingly, Bangladesh never went to ICC or ICJ to resolve this matter.

Please correct me if I am wrong, but as far as I know, after 1973's tri-party Delhi Agreement, Bangladesh cannot demand the above two.

What is the legal status of this matter?

Is this a legally viable case for Bangladesh?

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  • It isn't obvious to me that a demand for an apology is relief that a court can grant, or that a court can make a finding of fact that a genocide did or did not happen unless it is in furtherance of relief that a court can grant. It sounds to me like a non-justiciable question. But, maybe I'm missing some particular treaty obligation that changes that analysis. Normally, a country can't sue for declaratory or injunctive relief on a defamation claim.
    – ohwilleke
    Commented Feb 8, 2023 at 23:53

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All three nations are under the jurisdiction of the International Court of Justice, and also agreed to the Convention on the Prevention and Punishment of the Crime of Genocide, which was in force at the time. There are current cases (Ukraine v. Russia, The Gambia v. Myanmar) under that agreement, so in principle there is no legal impediment to a complaint by Bangladesh. The Delhi agreement is irrelevant first because it does not negate any legal rights of Bangladesh and second because the agreement is just between India and Pakistan. So there is no compelling legal reason why Bangladesh never filed a case with the ICJ.

It turns out that there were some important holdouts on the Genocide Convention – two of the permanent members of the Security Council (PRC, US), which have veto power. This can explain why there were no ICJ cases on genocide until 1993. It should be noted that the US was a supporter of Pakistan at the time.

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  • and second because the agreement is just between India and Pakistan. --- not it's not. It is a tri-party agreement.
    – user366312
    Commented Feb 8, 2023 at 23:10
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The ICC has no jurisdiction

None of Bangladesh, India, or Pakistan are signatories to the Rome statute.

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  • what about ICJ?
    – user366312
    Commented Feb 8, 2023 at 23:11
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The allegations of genocide and other violations of human rights that occurred during the 1971 Bangladesh Liberation War are complex and contentious. The specific actions taken by the parties involved as well as the relevant international legal frameworks determine the matter's legal status.

It is true that India, Pakistan, and Bangladesh signed the tri-party Delhi Agreement in 1973, which sought to resolve a number of conflict-related issues. The agreement stipulated, among other things, the recognition of Bangladesh as an independent nation, the return of displaced individuals, and the release and repatriation of prisoners of war. However, this agreement does not necessarily mean that Bangladesh cannot sue for alleged war crimes or other violations of international law.

In general, there are a few different options available for seeking justice for such crimes. The International Criminal Court (ICC), which has jurisdiction over a number of serious international crimes like genocide, war crimes, and crimes against humanity, is one option. However, it is important to note that the ICC generally only deals with crimes committed after its establishment in 2002. Consequently, it is unlikely that the ICC would have jurisdiction over 1971 events.

The International Court of Justice (ICJ), which has the authority to hear cases involving disputes between states and violations of international law, is another option. However, both parties must consent to the ICJ's jurisdiction before a case can be brought before it. Pakistan's willingness to submit to the ICJ's jurisdiction in this matter is unknown.

Last but not least, the alleged war crimes could be the subject of legal action in Bangladeshi or other national courts. However, depending on the jurisdiction and the particulars of the case, the legal mechanisms that can be used in these situations may differ significantly.

In a nutshell, the issue's legal status is nuanced, and a legal case's viability is contingent on a number of variables. It is ultimately up to the parties involved to decide whether or not to take legal action and how to do so in the most effective manner, despite the fact that there are some possible avenues for seeking justice in connection with the events of 1971.

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    Citation needed. Your answer substantially differs from other answers. This is a Law forum. Each answer must be supported by books of laws.
    – user366312
    Commented Feb 14, 2023 at 20:21

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