By David Bergman
On 1 December 2013, the UN High Commissioner for Human Rights, Navi Pillay pointed out in a press statement that Bangladesh was a State Party to the Rome Statute of the International Criminal Court and added.
“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.”
Although it was generally interpreted at the time as a warning to both the government and the opposition, the press statement had in fact only referred to opposition violence, stating earlier on that: “In the past week, we have seen acts as extreme as protestors throwing molotov cocktails onto public buses without allowing the occupants to escape, leaving women and children with horrific burns.”
Whatever Pillay’s intention may have been, today marked the first formal attempt by lawyers to get the ICC to engage with Bangladesh.
A UK law chambers, 9 Bedford Row International, has lodged a ‘communication’ with the ICC prosecutor requesting that it open an investigation into ‘potential charges in relation to the crimes currently being committed with impunity throughout Bangladesh against the civilian population.’
The summary version of the communication says that the chambers has been instructed by an informal coalition of international human rights lawyers called the International Coalition for Freedom and Rights, which appears to be is a newly formed group that came together out of a meeting relating to the coup in Egypt.
9 Bedford Row is of course the British law chambers where the three UK lawyers – Toby Cadman, Steven Kay QC, and John Cammergh – who have been assisting the International War Crimes Tribunal accused, are based
Theoretically, ‘crimes committed against the civilian population’ could apply to opposition violence, but the summary of the written communication makes it clear that it is intended to focus attention on conduct on the part of government representatives. It states:
- 21. The underlying acts are of the most serious in nature, and include increasing numbers of state killings, torture, deportation, imprisonment, persecution on political grounds, enforced disappearance and other inhumane acts of civilians. Groups, and persons belonging to these groups have been stigmatised and deliberately targeted on the basis of their presumed political affiliations.
22. The crimes have been committed systematically and systemically, through state machinery, including the police force, the Rapid Action Battalion, the Border Guards Bangladesh, the judiciary and judicial system.
In setting out who might be the potential defendants, it points to Sheikh Hasina, the prime minister, cabinet ministers, head of various law enforcement agencies, and also in face Hasina’s son, Sajeeb. It states:
- 29. It is the discretion of the Prosecutor, after having considered the evidence, to determine who bears criminal responsibility. The communication sets in some detail that the Prime Minister, Sheikh Hasina Wajed, along with several senior ministers and cabinet members, the Police Commissioner, Director of the Rapid Action Battalion (“RAB”) and the Border Guards Bangladesh (“BGB”) were persons in positions to effectively exercise control over or direct the political and police action in Bangladesh. It is further important to note that the Prime Minister, since 5 January 2014, also heads the Ministries of Defence, Home Affairs and Foreign Affairs.
30. On 18 December 2013, the Prime Minister’s son, Sajeeb Ahmed Wazed, a senior government advisor issued a public statement calling for members of the opposition Islamist political party to be wiped out. In the days following his statement numerous members of the opposition were killed. On 5 January 2014 at least 21 civilians were killed.
Now what does this all amount to? Is this something real or just a stunt by those linked to the opposition to refocus media attention on state violence in Bangladesh?
This communication is made under article 15 of the Rome Statute of the International Criminal Code – which allows the prosecutor to consider any submitted information, under. This states the following:
- 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.
2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.
4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.
5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation.
Basically, what this means is that the prosecutor can on his or her own accord, on the basis of information received, initiate a preliminary examination. The ICC website states that: Article 53(1)(a)‐(c) of the Statute establishes the legal framework for a preliminary examination. It provides that, in order to determine whether there is a reasonable basis to proceed with an investigation into the situation the Prosecutor shall consider:
– jurisdiction (temporal, material, and either territorial or personal jurisdiction);
– admissibility (complementarity and gravity); and
– the interests of justice.
In this case, perhaps the biggest hurdle for the lawyers to overcome will be to prove ‘gravity’ – whether or not the matter is grave enough to warrant an investigation (Complementarity here means that the ICC only takes action if the state itself is unwilling to do so. Of course, whilst the Bangladesh government has shown itself all to willing to take action in relation to violence committed by the opposition, it has not shown interest in the investigation of alleged state violence).
If the prosecutor thinks after making those inquiries that the conditions have been fulfilled, it, can make a formal request to the pre-trial chamber to initiate investigation, into the case. This, as has been noted in another summary of the procedure, is not a high threshold:
The applicable standard that the Prosecutor must meet for a successful application is that of a “reasonable basis to proceed”; Article 15(4). This is a relatively low evidentiary standard, in the sense that the information presented to the Chamber need not be conclusive and need not eliminate all other possible interpretations of the information. Instead, the Pre-Trial Chamber must be satisfied that a reasonable or sensible justification exists for the belief that a crime(s) within the ICC’s jurisdiction is being or has been committed.
According to the ICC website, the Office of the Prosecutor ‘had considered information on crimes from numerous sources, including open sources, and a total of 10,470 “communications” received pursuant to article 15 of the Statute’ and the prosecution ‘is currently conducting preliminary examinations in eight situations.’
This legal application must be seen as a bit of a long shot at this stage – which will also take time – but perhaps it may at the very least have one important effect. Make the government think twice before apparently authorizing/turning a blind eye to extra-judicial executions of opposition activists.
It should also be noted that there are some serious lawyers behind the application – with Steven Kay QC as head of the legal team. Toby Cadman had a meeting with officials in the prosecutor’s office.