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.
Conclusion
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.
