On August 5, the dictatorship of Sheik Hasina came to an end and her government was overthrown through a student-citizen led uprising. Sheikh Hasina fled the country after resigning from her position of premiership of nearly 16 years.
A new interim government led by Chief Adviser Muhammad Yunus has been formed by now, and after a few days of political unrest and anarchy, things have started to calm down -- law and order has been restored to some extent after the police returned to work in most Thanas.
A very recent update is that a complaint was filed with the investigation agency of the International Crimes Tribunal on August 14, accusing the former prime minister and eight others of committing crimes against humanity and genocide between July 15 and August 5.
Now we have a few questions in front of us: Should the former PM be sued in our domestic court, i.e. International Crimes Tribunals of Bangladesh, or it be better for the Interim government of Bangladesh to transfer the case to United Nations and thus the International Criminal Court (ICC)? Should the allegations against Sheikh Hasina and others be lodged undergenocide or mass killing?
What is International Criminal Court?
The ICC is governed by an international treaty called the Rome Statute. ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: Genocide, war crimes, crimes against humanity, and the crimes of aggression. As a court of last resort, the ICC is intended to complement, not to replace, national criminal systems. This means, it prosecutes cases only when States do not, are unwilling or unable to do so genuinely.
Law Adviser to the current interim government of Bangladesh Asif Nazrul informed the media that cases against Sheikh Hasina would be tried under the International Crimes Tribunal of Bangladesh. He also mentioned that the investigations would take place under the supervision of United Nations.
From the information we have at hand, we can most certainly predict that the trials against Sheikh Hasina would be held under our domestic jurisdictions. The interim government didn’t show any hesitation with regard to their commitment for a fair and just trial with no further delay. United Nations had already expressed their willingness to investigate the atrocities and attacks by the State upon students and civilians on the streets during the month of July and August this year. The previous Hasina government didn’t agree on a separate and independent investigation carried out by the UN.
I wholeheartedly welcome the current Interim government’s approach on letting the UN carry out the investigations independently where the Bangladesh government and other organizations only contribute as a helping force. This forms, to my opinion, a strong foundation for a fair and just investigation followed by trials. The government should also seek assistance and guidance from the United Nations and other international organizations such as Amnesty International, Human Rights Watch throughout the proceedings to ensure a fair and just trail. The domestic and international media and other human rights organizations and groups should be welcomed as observers too if it goes to trial.
Now comes the second and a very important question: Could genocide be proven against Hasina if the investigations lead to a trial?
The United Nations Genocide Convention 1948, Article Two defines genocide as any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group:
Despite best intentions the Genocide Convention, it is not entirely without problems. It is seen as “too restrictive” in that it excludes political and social groups as potential victims. For our context, the students and civilians killed at the hands of the state (police, BGB, RAB, and Army), fall within the political and social groups which is unfortunately not included within the genocide convention definition. The definition is also seen as “too loose,”as article (b), (d), and (e) do not require killing for genocide to have been committed.
It should also be a focusing point here, the Convention states that genocide involves “‘the intent to destroy.” An individual’s involuntary association is integral to their suffering in an act of genocide. The intent to destroy members of groups due to involuntary associations such as ethnicity, race, religion and nationality, distinguishes genocide from other instances of mass killing in which groups may be targeted for their political allegiances and social groupings.
Hence, it would be difficult for the prosecution to prove beyond reasonable doubt that the State (Sheikh Hasina’s government) had the intent to destroy “members of groups” based on their ethnicity, nationality, race, or religion. The death of hundreds of students and civilians during the recent upsurge in July and August could rather be tried as mass killing.
Besides, though the mass killing by the Hasina government does not seem to be labelled as genocide with beyond reasonable doubt, the allegations of crime against humanity seems to have more chances to be proven against Sheikh Hasina and some of her government high officials.
Under the International Criminal Law definition, crimes against humanity consist of various act such as murder, extermination, enslavement, torture, forcible transfers of populations, imprisonment, rape, persecution, enforced disappearance, and apartheid among others -- when, according to the ICC, those are “committed as part of a widespread or systematic attack” directed against any civilian population.
In this instance, crime against humanity allegations could be brought against the former PM on the grounds of murder, torture, imprisonment, persecution, enforced disappearance, etc.
In conclusion, the unprovoked mass killing of unarmed students, children, and civilians on the streets of Bangladesh during the civil and peaceful protests in July and August is something unprecedented and unacceptable, hence unforgivable. It’s the high time to remind ourselves the core idea of “rule of law” -- no one is above the law and no one is below.
We, citizens of People’s Republic of Bangladesh, deserve and therefore demand fairness and justice in each and every judicial process.This should begin here and now.
Farzana Hussain is a barrister-at-Law, advocate, and human rights activist .