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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 77
July 19 , 2008

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International Justice Day
Bangladesh should ratify ICC statute

Dr. Ahmed Ziauddin

On this day ten years back on 17 July 1998, the world descended in Italian capital Rome and signed overwhelmingly an international treaty establishing the first permanent judicial institution with global jurisdiction, the International Criminal Court (ICC). The document was voted in by 120 states only 7 opposing, created a new international legal regime, an investigation, and prosecution and trial mechanism never seen before. The ICC, as an independent and truly international court, was assigned to deal with very serious crimes of international concerns, namely, the crime of Genocide, crimes against humanity, war crimes and the crime of aggression.

What was remarkable about this treaty, also known as the Rome Statute, city where it was adopted, was how quickly states from all parts of the world joined this treaty and in less than four years, the statute came into force on 1 July 2002 when over 60 countries ratified the instrument. A new court was born on that day. Since then, 17 July has been marked as the International Justice Day to mark adoption of the Rome Statute.

The establishment of the ICC signaled the end of impunity for those who committed international crimes, persons like Yahiya Khan, Pol Pot, Pinochet, Hitler etc. Many of these people went to grave without facing justice for their crimes. In case of Yahiya Khan, for example, who was responsible for killings of three millions and hundreds and thousands of rapes, and victimizing millions of others, died without facing his victims and paying for his crimes. If an international institution like today's ICC was around in 1971, Yahiya and his gangs certainly would have to stand before the court and the world to account for his crimes.

The ICC is only a complimentary court. It is intended to supplement national courts, which are primarily responsible to try war crimes, crimes against humanity and acts of Genocide. The ICC exercises its jurisdiction in exceptional circumstances only when states are “unwilling” or genuinely “unable” to try these at national level. This is preciously what has happened when governments of Democratic Republic of Congo, Uganda, and the Central African Republic have all approached the ICC asking assistance with prosecution of international crimes perpetrated in their own countries.

The Court have since investigated situations in these countries, accused individuals with highest criminal responsibilities, issued warrants of arrests and at least four such accused are in court's custody now in The Hague in Holland, former Congolese Vice President and rebel leader Jean-Pierre Bemba, Thomas Lubanga Dyilo, the first arrestee from DRC and other two war lords Germain Katanga and Mathieu Ngudjolo Chui. The Prosecutor is also investigating situations in Afghanistan and Colombia.

Meanwhile, the UN Security Council asked the Prosecutor of the ICC to investigate situation in Sudan in 2005. This was significant endorsement of effectiveness, legitimacy and credibility of a new court within three years of its establishment. The Security Council, responsible for maintaining international peace and security, realized importance of independent investigation and impartial prosecution and trial for providing security and securing peace. The Court has since issued international arrests warrants against Ahmad Mohammad Harun, a militia leader and Ali Muhammad Al Abd-al-Rahman, a sitting minister of Sudanese government. Last week, the ICC Prosecutor asked the Pre-Trial Chamber III of the ICC to issue warrant of arrests against President of Sudan Omar Hassan Ahmad Al Bashir.

The Court will take time and consider evidences presented by the Prosecutor and sufficient grounds exist, the Judges would then issue international arrests warrant against the Sudanese President on 10 different counts of acts of Genocide, crimes against humanity and war crimes. This then would be a groundbreaking development in that that would be the first ever arrest warrants issued by an international court against a sitting President of a country. In Article 27(1), the Rome Statute has done away with immunity attached to official capacity. It states, “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or Parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in or of itself, constitute a ground for reduction of sentence.”

There are some who argue that justice process could impede peace initiatives following conflicts but in reality, peace and justice are not incompatible and in fact, there cannot be any peace without justice.

Although the Court has no retrospective jurisdiction, it can only try crimes perpetrated after coming into force of the Statute in 1 July 2002, the Government of Bangladesh actively participated in its negotiations in Rome and was one of the first in this part of the world to sign the statute. It was quite logical for Bangladesh to support development of an international justice mechanism to deal with Genocide and other international crimes, which its people were all victims of.

However, a long time has passed since Bangladesh signed the Statute in 1999 but ratification process has not yet been completed and as such, Bangladesh has not formally joined this international justice process. In Bangladesh, ratification of an international treaty is a simple process, exactly the same followed during signing of any instrument- a Cabinet decision. One can always argue necessity of a second Cabinet decision to ratify since; the second such decision cannot impart higher authority than the first one that decided to sign. But, nonetheless, this still remains undone.

Bangladesh has no reason not to ratify the Rome Statute as the people of Bangladesh have collectively fought against Genocide, crimes against humanity and war crimes and have liberated the country. People of Bangladesh would never allow commissioning of such crimes in Bangladesh nor would they participate in such acts. So, ratification is more making position of Bangladesh clear and to contribute to international justice as a part of our Constitutional commitment to international peace.

The key objective is to ensure that those in the world responsible for atrocities should not only be tried but Bangladesh would be an active participant in this justice process. More significantly, once ratified, implementing legislations would take existing legal provisions to international standards; international crimes not defined in Bangladesh laws would be incorporated enabling courts of Bangladesh to enforce international criminal law. That is the only way to address too may international crimes seen around.

The Caretaker Government has already acceded to number of international Conventions such as the United Nations Convention against Corruption, Convention on the Rights of Persons with Disabilities, Optional Protocol to the Convention on the Rights of Persons with Disabilities, International Convention for the Suppression of Acts of Nuclear Terrorism and Convention on the Protection and Promotion of Diversity of Cultural Expressions, all done in 2007. As such, there are no legal or constitutional limitations for the current government to ratify the Rome Statute that Bangladesh is already in half way as a signatory.

On this International Justice Day, we urge the Caretaker Government to ratify Rome Statute of the International Criminal Court as a mark of our collective respect to those who lost their lives and honors. We owe this to those whose bloods and sacrifices created Bangladesh so that we can emphatically say no to Genocide, crimes against humanity, war crimes and other international crimes. Ratification of the Rome Statute could also be this Government's lasting contribution to justice and of it legacy.

The write is Convener, Asian Network for the International Criminal Court (ANICC).


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