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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 163
April 3, 2010

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Reviewing the views

Ratification of The Rome Statute
Questions that must be answered

Dr. Ahmed Ziauddin

Bangladesh was in fact, born out of major international crimes; the genocide, war crimes, crimes against humanity and crime of aggression, where, three million people were killed, ten million were forced to leave the country, and millions of others were affected. On the other hand, the ICC was set up by the international community to ensure that genocide, crimes against humanity and war crimes no longer go unpunished.

As such, if there is any country in the world, who should be the first to support and join the ICC, it is Bangladesh. It is for those counties with similar experiences that Bangladesh went through in 1971, that the ICC was established, to end impunity and to bring individuals with the highest criminal responsibilities for committing these crimes to justice, and to make them accountable. As Bangladesh starts the long over-due process to put individuals who committed genocide, war crimes, crimes against humanity and other international crimes in 1971 before the court of law, ratification now will be the fitting tribute to those millions who suffered, to join the international mechanism to prevent international crimes, and punish the perpetrators. Here, attempts will be made respond to questions that are asked not only in Bangladesh but in countries too, in one form or other, that ratified and those considering ratification. In this sense, there are huge global experiences of analyzing the Rome Statute.

Why cannot the ICC try crimes committed in 1971?
This question was asked by government ministers, leaders, experts and activists alike and quite understandably. This what the ICC should be doing as an International Criminal Court, trying perpetrators who committed international crimes. In fact, it is doing just that on a daily basis regarding crimes committed in four countries and investigating others, but for those crimes committed only after the Statute came into force, i.e., 1 July 2002.

As a prospective court, the ICC cannot take up any situation that happened before it came into existence. This is what 120 countries voted for in Rome on 17 July 1998, 129 States signed it by December 2000 and 110 have so far ratified. All European Union counties, most African, Latin American, Pacific countries who have joined the Court since also accept this nature of the Court.

Moreover, even if the ICC was around in 1971, still, under its Statute and under international law, it was the duty of Bangladesh to exercise its criminal jurisdiction over those responsible for international crimes. ICC doesn't have primacy over national jurisdictions but only a complimentary role, in that, under Article 17, only in case, a State which has jurisdiction is “unwilling or unable genuinely to carry out the investigation and prosecution” could the ICC consider admitting a situation, provided that that a high threshold of crime has indeed been committed.

So, even under that circumstances, what Bangladesh was expected to do is precisely what Bangladesh has now undertaken, investigation and prosecution of crimes committed. A State that is able to and willing to deal with crimes, would still be taking it up, except that if the State so chooses to seek help of the Court, as has happened in case of most of the situations now before the Court.

What is the impact of the Rome Statute over the ongoing process in Bangladesh? Does the International Crimes (Tribunals) Act, 1973 have to be amended to hold an ICC like trial in Bangladesh?
Nowhere in the Rome Statute does it enjoin the State Party's national legal system to be replaced by or follow exactly what is contained in the Statute. The ICC defers to the national process, and only in circumstances where a State Party cannot or will not investigate or prosecute, could the ICC conceivably consider. The operative phrase here is mentioned in Article 17, which reads: unwilling or unable genuinely carry out investigation or prosecution. Genuine investigation or prosecution means that the State Party, should, in all sincerity undertake the process, and in no way, abuse it to shield a criminal or protect the guilty. In other words, there should not be any sham or eye wash trial. In the case of Bangladesh, the aim of the ongoing process is not to protect alleged criminals but through judicial means, expose and bring the perpetrators to book.

Successive governments in Bangladesh did not address 1971 crimes, despite the fact that a complete legislation was available all through. This might, in all probability, be considered “unwillingness” on the part of the State Party, if Bangladesh was a State Party and the ICC had jurisdiction over the crimes. Even if the ICC has nothing to do with crimes committed in 1971, since Bangladesh undertook a serious process, the ICC would have left the national process alone.

Next, the only significant obligation that the Rome Statute attaches to a State Party is contained in Part 9, “International Cooperation and Judicial Assistance”, in particular Article 86 that states, “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Here, the Statute obligates a State Party to cooperate fully with the Court. The use of the term “shall”, which in law means, must in law.

What about the comments of the War Crimes Committee of the International Bar Association (IBA) suggesting changes in the 1973 Act in reference to the Rome Statute and claims of some to amend further to mimic the ICC trials?
Those who have access to the full report of the IBA Committee will notice the opening sentence of their observation, given as an opinion from one organization to another, IBA to UK Parliament's Human Right Group. It states that the “1973 legislation, together with the 2009 amending text, provides a system which is broadly compatible with current international standards.” And then it goes that there are some areas which now “appear out of date and fallen behind the more recent practice in international tribunals.” It then illustrates the areas that include “the basic definition of some of the crimes, as well as the penalty available upon conviction.” It then elaborates its views in details.

Since it's not possible to comment on every remark made by the IBA committee within this context, it will be sufficient to make few general observations to clarify.

The fact that the IBA committee has found that the 1973 Act is broadly consistent with international standards should alone suffice, as far as the minimum standard required by the international law is concerned. As noted already, the Rome Statute did not emerge to replace national legislations in any form or shape, nor has it demanded so. Instead, in Article 10, it explicitly recognizes that “Nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” Here it refers Part 2 that defines the crimes and deals with jurisdiction and admissibility.

In other words, the Rome Statute itself states that it is not there to limit or prejudice “existing” international law and it has to be noted that the 1973 Act was entirely based on the law that existed then and that it still remains valid. The Statute says, the definition etc contained in the Statute is for the purpose of the Statute.

If one looks at the each of the three crimes in the Statute, in Article 6 on genocide, it starts with “For the purpose of this Statute, “genocide: means…” Equally, in Crimes against humanity, Article 7 starts with, “For the purpose of this Statute, “crimes against humanity” means...” In Article 8, in defining the War Crimes, it states that “For the purpose of this Statute, “war crimes” means…” . Use of the phrase “For the purpose of the Statue “means that the drafters were not only aware of, but recognized that these definitions were not the final and definitive interpretations, and that there are others. And indeed, in Rome, there were different views, and that is why the crimes have been “qualified” so, and kept limited to the Rome Statute, leaving “existing and evolution” of international law in tact.

For example, the 1973 Act in fact has “expanded” the definition of the crime of genocide by adding a new group, “political group”, in addition to four other groups mentioned in the Genocide Convention and also the Rome Statute, but this addition cannot in any way be considered contravening international law, as the 1973 Act is a Bangladesh law, and also, the “political group” was within the draft definition and in the UN General Assembly resolution, but were left out in the final text mainly because of “political expediency”. It has to be always noted that though legal texts, these are essentially products of compromises by the States on various considerations. What has to be ensured is that there is a fair trail by a competent court based on evidence coming out of an impartial investigation, meeting minimum international standards.

What about the other concerns like the death penalty in place in laws in Bangladesh and in the 1973 Act?
The Rome Statute indeed excludes death penalty from the list of penalties it can impose. The most severe penalty, under Article 77, is imprisonment for a maximum of 30 years, while a term for life is designated only when justified by the extreme gravity of the crime and on the individual circumstances of the convicted person. However, the Rome Statute is mindful about different national practices and contains in Article 80 a provision titled “Non-prejudice to national application of penalties and national laws” and states that, “Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of states which do not provide for penalties prescribed in this Part.” In other words, the ICC will not impose the death penalty, but recognizes rights of the States Parties to provide penalties different from the Statute. This is yet another example of the pre-eminence of national laws and procedures over the ICC.

The author is Consultant, International Criminal Law, Convener, Asian Network for the International Criminal Court (ANICC) and Advisor, Odhikar. This is an excerpt of a presentation at the Advocacy Meeting on Ratification of the Rome Statute of the ICC by Bangladesh, organised by Odhikar and CICC.




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