There have been widespread calls for the interim government of Bangladesh to hold those responsible for international crimes -- such as murder, torture, and enforced disappearances -- committed during the previous regime accountable before the International Criminal Court (ICC). On August 14, Professor Asif Nazrul, the law advisor of the interim government, stated that his government decided to approach the International Crimes Tribunals, Bangladesh (ICT-BD), for this purpose. While both options have merits, the author argues that resorting to either the ICC or ICT-BD could have certain drawbacks. Therefore, Bangladesh should approach this issue cautiously and consider establishing a UN-backed international tribunal instead.
The ICC, established on July 1, 2002 by virtue of the Rome Statute, is mandated to prosecute genocide, war crimes, crimes against humanity, and the crime of aggression. Since Bangladesh has been a member of the ICC since June 1, 2010, the Court has jurisdiction to prosecute individuals for their personal or command responsibilities for above-mentioned crimes committed during the previous regime. However, the author presents four legal and policy reasons why Bangladesh should carefully consider the implications before approaching the ICC.
First, the ICC currently faces an overwhelmingly heavy workload, particularly after becoming involved in the Ukraine and Palestine situations. Additionally, the ICC has been severely criticized for its lengthy complex procedures. Given this context, it is highly impractical to expect that the ICC would investigate the proposed Bangladesh situation promptly.
Second, the ICC is mandated to prosecute only the most responsible individuals for crimes that meet a certain gravity threshold. While it is plausible that some of the accused and their crimes in the proposed Bangladesh situation may fall within the ICC’s mandate, there is a risk that many crimes and individuals would remain outside its scope of prosecution. Thus, the ICC may not fully address the culture of impunity that has prevailed in Bangladesh over the past 15 years.
Third, the Rome Statute does not allow for trials in absentia. For example, the ICC has yet to commence any trials related to the Rohingya deportation over the past six years due to its failure to apprehend any accused individuals. Moreover, it is conceivable that those responsible may avoid visiting or seeking refuge in ICC member states to evade prosecution, rendering the prospects of an ICC trial highly uncertain.
Finally, and most importantly, the Rome Statute promotes domestic prosecution in accordance with the principle of complementarity. This principle dictates that the ICC cannot initiate an investigation or prosecution unless the state in question is unwilling or unable to do so. In the context of Bangladesh, the law advisor’s statement indicates the country’s willingness to prosecute the alleged perpetrators. Additionally, the Bangladeshi judiciary is fully capable of prosecuting international crimes, as evidenced by the existence of the ICT-BD. Therefore, there is a strong likelihood that any case arising from the Bangladesh situation before the ICC would be declared inadmissible.
For these reasons, the author is highly skeptical about the success of ICC proceedings in this situation. In line with the principle of complementarity, it is advisable to pursue a domestic route to justice. The author suggests that while the ICT-BD is competent to try the alleged crimes, this option should be approached with caution for five reasons.
First, the ICT-BD Act is modeled on the Nuremberg Charter and has not been updated since the adoption of the Rome Statute. Second, the ICT-BD has faced notable political and legal criticisms during its operations, both domestically and internationally. Third, the trial process is time-consuming and dependent on government policy. Fourth, the ICT-BD was highly politicized during the previous regime, and victims may not have faith in it. Finally, the ICT-BD is based on domestic law and is susceptible to the political will of future governments. Notably, only six out of fifty-five cases decided by the ICT-BD have completed subsequent stages (i.e., appeal and review) in the last fourteen years, and all those convicted are politically linked. Thus, relying on the ICT-BD may prove self-defeating.
Given the potential drawbacks of both ICC and ICT-BD proceedings, the author proposes that the government of Bangladesh consider establishing a UN-backed ad hoc international criminal tribunal, commonly referred to as a hybrid tribunal. Such tribunals, composed of both national and international staff, have the status of international organizations. Sierra Leone and Cambodia, for instance, have previously established hybrid tribunals, and the Central African Republic has a hybrid tribunal in operation alongside an ongoing ICC investigation. The exact nature, composition, and function of the proposed tribunal should be determined based on a consensus among victims and the government.
The establishment of a hybrid tribunal offers several advantages in the context of Bangladesh. First, it provides the opportunity to create a tailor-made legal framework, which could establish its own procedures, redefine prosecutable crimes, and address other substantive and procedural aspects. Second, as an international organization, a hybrid tribunal would enjoy immunity from the jurisdiction of national courts, allowing it to function independently and free from domestic interference. Third, the presence of international judges, prosecutors, and staff, alongside their domestic counterparts, would help safeguard the rights of the accused while addressing the concerns of victims. This would also lend legitimacy to the tribunal among various stakeholders.
Moreover, an accused person would not enjoy immunity before such a tribunal, and the tribunal could conduct trials in absentia. Furthermore, being associated with the UN, a hybrid tribunal would be better equipped to handle issues related to international judicial cooperation, such as the extradition of the accused. Finally, being established by an international treaty rather than domestic law, a hybrid tribunal would be insulated from political changes and could continue its work without being disrupted by shifts in government.
On a separate note, the UN has announced it will conduct investigations into the July massacre. While the details of the investigation have not yet been made public, it is intended to complement the tribunal rather than replace it.
Bangladesh has an international obligation to ensure justice for the crimes committed during the past Awami League regime, including the July revolution. The government of Bangladesh should base its decision on global experiences in combating impunity, rather than pursuing short-term objectives. The establishment of a hybrid tribunal would best serve the interests of the victims of the Awami League oppression and Bangladeshi society as a whole.
Quazi Omar Foysal is an international law expert, currently serving as a Lecturer in Public International Law at American International University-Bangladesh. He holds three LLMs from the University of Dhaka (Bangladesh), the Geneva Academy (Switzerland) and the Catholic University of Louvain (Belgium), respectively.
