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August 1, 2004

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International Criminal Court: A case for ratification by Bangladesh

Barrister Harun ur Rashid

The International Criminal Court, based at The Hague (Netherlands), has been effective from early 2003 with 18 judges on the bench, elected by the state-parties that ratified the 1998 Rome Treaty. The Court has been set up in terms of the Rome Treaty, signed by 120 states including Bangladesh, to try persons accused of committing genocide, war crimes and crimes against humanity.

Origin of the Court
The idea of an International Criminal Court is not new. It goes back to the late 19th century. In 1872, Gustave Moynier of the International Committee of the Red Cross first thought of setting up of an international criminal court when he saw atrocities in Franco-Prussian War. The idea could not proceed because it came into conflict with the notion of sovereignty of states. Later, the League of Nations (1920-39) attempted to establish it but nations refused to surrender their sovereignty to an international court.
In the aftermath of the Second World War, two ad-hoc criminal tribunals were established one in Nuremberg (Germany) and the other in Tokyo- by the victors of the war, namely the US, Britain and the former Soviet Union (Russia's predecessor-state). The purpose of the courts was to put on trial German and Japanese civil and military leaders who committed aggression, genocide and crimes against humanity. The accused persons were tried, convicted and many of them were hanged.

UN and its actions
After the establishment of the UN in 1945, three important events took place. First, in 1946, the UN General Assembly adopted a declaration that genocide "is a crime under international law, contrary to the spirit and aims of the UN and condemned by the civilized world". Second, in 1948, the UN adopted the Convention on the Prevention and Punishment of the Crime of Genocide in order to "liberate mankind from such odious scourge". Third, the UN General Assembly proposed an international judicial organ for trial of persons charged with genocide and crimes against humanity. However, the Cold War between the US and the former Soviet Union froze the dream because one side's criminal was the other's ally.
In the 1990s, two ad-hoc criminal tribunals were established by the UNone in The Hague for trial of persons who committed genocide during the Bosnia War (1992-95) and the other one in Arusha (Tanzania) for persons charged with commission of genocide in Rwanda in 1994. These two ad-hoc criminal tribunals provided the initiative of the international community to set up a permanent International Criminal Court (ICC) so that there would be no need in future for ad-hoc international criminal courts.

Rome Statute of 1998
A five-week long UN Conference was held in Rome in June 1998 with representatives from 162 countries including Bangladesh. The conference was presided over by a Canadian diplomat Philippe Kirch. After detailed debate and compromise, a Statute of the International Criminal Court was agreed upon. The UN Secretary General Kofi Annan called the statute of the ICC a "giant step forward in the rule of law that a few years ago nobody would have thought possible". Many non-governmental organizations played a crucial role in making the Rome conference a success.

Jurisdiction of the ICC
The jurisdiction of the ICC is prospective and is not retrospective. This means that the Court is competent to try persons charged with international crimes committed on or after 1st July, 2002. In view of this, the Pakistani military officers who are alleged to have committed genocide, crimes against humanity and war crimes on Bangladeshi people in 1971 cannot be put on trial before the Court."
The ICC is not the Court of first call. It is a Court of last resort. Under the Rome Statute, the Court will only step in when countries are unwilling or unable to put on trial persons charged with genocide, crimes against humanity and war crimes. The UN Security Council is also competent to refer cases to the ICC. The bottom line is that no one alleged to have committed the heinous international crimes should escape from justice.
The Court has independent prosecutors and they must convince a pre-trial chamber of three judges of the ICC that alleged international crimes have been thoroughly investigated to ensure that politically motivated or frivolous charges are not brought before the Court. Furthermore the UN Security Council may put off a trial for 12 months, a blocking move that can be repeated indefinitely. Enough safeguards contain in the Rome Statute so that frivolous or politically motivated charges are dismissed.

Some States do not support the ICC
It is reported that some states, such as China, Russia, India, Indonesia, Iraq, Iran, Israel, Pakistan, Turkey and the US , for their own reasons, do not lend their support to the ICC. These states except the US did not sign the Rome Statute.
The weakness of the universal jurisdiction of the Court lies in the fact that three permanent members of the Security Council, such as the US, China and Russia, have not accepted the jurisdiction of the Court. Although the Clinton administration had signed up the Rome Statute, the Bush administration decided to "unsign" the Statute and renounced its support on 7 May, 2002. The implication is that US citizenscivil or military- cannot be subject to the jurisdiction of the ICC, even if they are allegedly charged with crimes against humanity or war crimes or genocide.

US action to avoid the jurisdiction of the ICC
The Bush administration is attempting to evade the jurisdiction of the Court for its civil and military personnel who are stationed outside the US. The US, being a super power, has stationed almost 370,000 troops in more than 100 countries. Nearly 80,000 US troops are based in Japan and South Korea. About 138,000 US troops are now stationed in Iraq.
What the US has attempted is to enter agreement with countries including Bangladesh not to prosecute US civil and military personnel either at the ICC or in national Courts of the country where they are stationed. In other words the US wants immunity for their citizens for any crime committed in other countries.
Recently the US sought to extend the immunity from the UN Security Council of the jurisdiction of the ICC for US citizens including its military personnel involved in UN peacekeeping missions. Although the Security Council provided immunity for one year, this time the Council did not support it (even the UN Secretary General came out very strongly against the proposed immunity for US nationals) and the US had to withdraw its draft resolution from the Council.

Ratification of the Rome Statute for Bangladesh
Bangladesh people had been victims of genocide, crimes against humanity and war crimes in 1971 by the Pakistani military personnel. As a result, 10 million people had to take refuge in India. Had there been the ICC, the 195 senior Pakistani military officers charged with the heinous crimes in Bangladesh would not have escaped from justice.
Bangladesh participated the 1998 Rome Conference and has signed up the Rome Statute. International community expects that Bangladesh, being a country with first hand experience of genocide, crimes against humanity and war crimes in 1971, is one of the countries that will ratify the Rome Statute. By ratification, Bangladesh may demonstrate that it adheres to the rule of law and firmly believes that persons charged with international crimes will be put on trial before the ICC. Furthermore as of June 2002, 69 countries have already ratified the Statute.
Many believe that there could be a concern in some quarters that Bangladesh civil and military officers that are engaged in UN peacekeeping missions in various parts of the world may be put on trial before the ICC for alleged international crimes. However it may be borne in mind that the ICC is not the first jurisdiction for trial. It comes in picture only if Bangladesh does not put on trial its citizens in Bangladesh courts for the alleged crimes committed in other countries. Under criminal law, Bangladesh has personal jurisdiction over its national in overseas and is competent to try them in national courts for crimes allegedly committed overseas.

Bangladesh maintains a deep commitment to the rule of law and to justice. Article 25 of the 1972 Bangladesh Constitution enjoins Bangladesh to establish its international relations on the principles of " respect for international law and the principles enunciated in the UN Charter". The Rome Statute is a UN Convention, based on the purposes and principles of the UN Charter.
Furthermore the judicial and legal systems in the country are well established, just and fair. It is inconceivable that Bangladesh will allow such crimes to go unpunished. Bangladesh has already enacted a law in the 70s to enable it to put on trial persons accused of such horrible international crimes. In the light of the above situation, the perceived negative implication of ratification of the Rome Statute on Bangladesh nationals overseas, in my view, is misplaced and misconceived. I would argue that it is time and appropriate that Bangladesh ratifies the Rome Statue, providing a positive signal to the international community that Bangladesh does not tolerate the commission of such international crimes, wherever they may take place.

Barrister Harun ur Rashid, Former Bangladesh Ambassador to the UN, Geneva.

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