Since the events leading to the July massacre began, Volker Türk, the UN High Commissioner for Human Rights, expressed serious concerns about the human rights situation in Bangladesh. On July 23, he proposed that the then-Bangladesh government allow an investigative team from the Office of the High Commissioner for Human Rights (OHCHR) to visit the country, but received no positive response. After assuming power, the interim government welcomed the earlier OHCHR invitation. As of now, OHCHR has published its preliminary report on August 16 and dispatched a team to conduct a pre-investigation situational assessment.
Over the past two decades, the UN has routinely established investigative mechanisms in response to serious human rights violations. These mechanisms – often called "fact-finding missions" -- are independent, impartial, non-judicial mechanisms tasked with assessing the facts of a given situation, determining violations under international law, and drawing conclusions. The UN General Assembly, UN Security Council, UN Human Rights Council, the former UN Human Rights Commission, and OHCHR have established around 85 such mechanisms to date. It is generally not necessary to obtain the consent of the state under investigation to establish an investigative mechanism. This means that OHCHR could still establish a mechanism without approval from the Bangladesh government.
In Bangladesh’s context, the interim government’s decision to accept the OHCHR's offer to establish an investigative mechanism can be seen as an attempt to gain international legitimacy. This is crucial, given that the government took power following the fall of a fifteen-year despotic regime. Furthermore, given widespread misinformation and disinformation after Sheikh Hasina's departure, documenting the actual human rights violations could help the new government clarify its position and prevent similar events in future.
While the details of the OHCHR’s investigative mechanism have not yet been made public, its preliminary report, pre-investigation visit, and OHCHR’s "Guidance and Practice on Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law" (2015) provide some insights of its mandate. In past instances, OHCHR investigative mechanisms were established through UNHRC resolutions. While awaiting its formal creation, it is important to highlight several key aspects.
First, the temporal and subject-matter jurisdictions of the investigation should be reconsidered. The preliminary report focuses on events that occurred between July 16 and August 11 and documents violations such as the disproportionate use of force, extrajudicial killings, arrests and ill-treatment, and restrictions on freedom of expression and movement.
Given the long-standing despicable record of human rights abuses under the deposed Sheikh Hasina government, the investigation should encompass the entire regime's tenure, as well as the post-August 5 events, including alleged attacks on minorities. Some incidents during this period may also constitute international crimes, making it crucial for the investigative mechanism to include international criminal law within its mandate.
At the time of the July massacre, Bangladesh was a party to eight of the nine core human rights treaties (and has since acceded to the Enforced Disappearance Convention, making it nine out of nine), as well as the Rome Statute of the International Criminal Court. Despite these commitments, and after submitting State party reports on several occasions, Bangladesh has consistently failed to uphold its obligations.
Much of this failure is rooted in its domestic legal system. For instance, Bangladesh’s poor record on torture, despite having passed implementing legislation. The investigative mechanism should address these deficiencies and provide necessary recommendations.
As a non-judicial body, the investigative mechanism's standard of proof is lower than that of judicial bodies. UN investigative mechanisms typically apply the "reasonable grounds to believe" standard, but, on rare occasions, they use the "balance of probabilities" standard. Since the mechanism will have access to a relatively recent situation, it may be feasible to apply the latter standard. This would be particularly beneficial if the report is used in future judicial proceedings, as evidence gathered under this standard would assist stakeholders.
The mechanism should not only investigate state responsibility for human rights violations but also assess individual criminal responsibility for international crimes. In Bangladesh, the mechanism should examine the role of government agencies and assess the involvement of different Bangladesh Awami League organs, such as the Bangladesh Chhatra League, in these violations. Under international law, States bear responsibility for non-governmental entities when their actions are acknowledged and adopted by the earlier.
It is pertinent to mention that different key ministers from the previous regime publicly directed the Bangladesh Student League to suppress anti-government movements and endorsed their conduct. Understanding Bangladesh's responsibility in such contexts will also assist in understanding Bangladesh’s responsibility in the context of other anti-government movements, including the 2018 road safety movement and the 2018 quota movement.
Investigative mechanisms often identify individuals responsible for international crimes, but the names are typically kept confidential unless warranted by the circumstances. However, in Bangladesh’s case, the mechanism should consider publicly disclosing the names of top responsible individuals to assist transitional justice efforts and future trials.
Bangladesh has long supported the establishment of various investigative mechanisms across different UN bodies. In the recent past, Bangladesh facilitated the investigations of various investigative mechanisms on the Rohingya. On another note, Sara Hossain currently chairs a UNHRC investigative body related to the 2022 Iran protests.
As a sitting member of the UNHRC, Bangladesh has the opportunity to influence the mandate of the proposed mechanism. It should, therefore, advocate for a comprehensive investigation into the country’s situation, considering the entire period of the Awami League's governance. This is an opportunity for the new government to address the country’s legacy and demonstrate a renewed commitment to international human rights norms. Effective engagement with this mechanism could also bolster the new government's international legitimacy.
Quazi Omar Foysal is an international law expert, currently serving as a Lecturer in Public International Law at American International University-Bangladesh
