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What the ICC can do

  • Published at 07:13 pm December 13th, 2013

On December 1, United Nations Human Rights Commissioner Ms Navi Pillay, a former judge of the High Court of South Africa and a former judge of the International Criminal Court, said she was deeply worried by the “shocking” pre-election violence rocking Bangladesh, urging parties on both sides to peacefully resolve their differences over the January 5 polls.

Pillay also voiced concerns about the detention of key opposition leaders in the unrest, which has killed 50 people since late October when the date of the general elections was first announced

The high commissioner pointed out that Bangladesh is a state party to the Rome statute of the International Criminal Court (ICC). “In other situations, we have seen cases of political or election related violence where the perpetrators of such acts - including political leadership - have faced prosecution,” she said.

It is recalled that Bangladesh actively took part in the 1998 United Nations Conference on the establishment of an International Criminal Court held in Rome. In 1999, the government of Bangladesh signed the Statute of the ICC, the first country in South Asia to have signed the treaty and ratified the statute on March 23, 2010.

In Asia, there are 50 states including Palestine. Bangladesh is one of the 10 states which ratified the statute. As of May 2013, Afghanistan, Bangladesh, Cambodia, Japan, Jordan, Maldives, Mongolia, South Korea, Tajikistan and Philippines ratified the statute.

China, India, Pakistan are opposed to the statute because of the non-immunity to the heads of state/government in the statute. The US and Israel have unsigned the statute. The United States not only opposed the statute but also prevailed strong influence on many Asian states in not ratifying the statute.

By ratification, it is argued Bangladesh’s political leaders including the president, prime minister and elected and non-elected officials come within the jurisdiction of the ICC under Article 27 of the ICC statute which removes immunities for prosecution, ordinarily available to heads of state/government.

It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC.

Part 9 of the statute requires all states’ parties including Bangladesh to “ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part”. Therefore many states parties have implemented national legislation to provide for the investigation and prosecution of crimes that fall under the jurisdiction of the court.

The ICC was created by the Rome Statute which came into force on July 1, 2002. The court has established itself in The Hague, Netherlands, but its proceedings may take place anywhere. 18 judges are appointed at the court by state-parties. As of March 2012, the president is Sang-hyun Song from South Korea, Sanji Mmasenono Monageng of Botswana is first vice-president and Cuno Tarfusser of Italy is second vice-president.

The court can automatically exercise jurisdiction over crimes committed on the territory of a state party or by a national of a state party. State parties must co-operate with the court, including surrendering suspects when requested to do so by the court.

With the functioning of the ICC, the scenario of accountability of perpetrators of extrajudicial killings and deaths of innocent civilians related to political violence has dramatically changed.

As of date, seven African countries are already been investigated by ICC for alleged killing of innocent civilians during political violence. These countries are Sudan, Libya, Central African Republic, Congo, Mali, Ivory Coast and Uganda. Another two countries - Guinea and Honduras - are under preliminary investigation.

A warrant by ICC was issued on March 4, 2009 to arrest the sitting president of Sudan, Omar al-Bashir, on charges of killing people in Darfur. He now hardly goes abroad because he may be arrested overseas. Kenya’s President Kenyatta and Vice President Ruto have been charged in connection with 2007-8 post-poll violence that left over 1,000 people dead and several hundred thousand displaced, while Ruto appeared before the court, President Kenyatta has been asked to appear before the court.

It is noted that on November 25, the UN Security Council has rejected an African demand to suspend the International Criminal Court trial of Kenya’s president and his deputy for one year.

Given the background, it may be argued that if deaths of innocent civilians due to political violence continue, the ICC initially can ask the government to establish an independent judicial body to ascertain the reasons of political violence, identify the persons responsible for such violent deaths, and punish the culprits including political leaders.

If the government fails or is unable or unwilling to do so, ICC may intervene and commence preliminary investigation on its own and may frame charges against the political leaders of Bangladesh irrespective of their high positions.

Finally, the creation of the ICC is felt beyond the courtroom. Political leaders and law-enforcing agencies around the world, even of non-signatory states, are adjusting their standards of conduct in dealing with innocent civilians. The effective punishment under the ICC is an important element in the prevention and recurrence of such odious crimes and for the protection of innocent civilians.