Bangladesh has to respond strongly

Bangladesh has a legal obligation to provide an affirmative opinion to the International Criminal Court (ICC) allowing The Hague-based tribunal to exercise jurisdiction over forced deportation of the Rohingyas -- a possible crime against humanity, says a legal expert.

“Genocide is the greatest form of international crime that the humanity knows, and it's not confined within Myanmar and Bangladesh in this particular case. This has an implication for the humanity at large,” said Prof Mizanur Rahman in an interview with The Daily Star on May 21.

Bangladesh must give an emphatic and affirmative response to the ICC initiative whatever geopolitics is there, said Mizanur, a law professor at Dhaka University and former chairman of National Human Rights Commission.

He made the observations in relation to a letter from the ICC pre-trial chamber early this month, inviting Bangladesh to submit by June 11 its opinion on whether the court can exercise jurisdiction over the matter.

Some 700,000 Rohingyas fled military crackdown in Rakhine since August last year. Rights groups said thousands were killed, women raped and houses burnt and bulldozed – the events that the UN said have hallmarks of genocide.

The rights groups have demanded that the UN Security Council refer the situation to the ICC. That has not been possible because of objections from China and Russia, who have veto powers at the Security Council.

Against this backdrop, the ICC wrote to Bangladesh. Earlier on April 9, the ICC prosecutor, Fatou Bensouda, asked the court to rule whether it has the jurisdiction over deportation of the Myanmar nationals, a possible crime against humanity.

Myanmar was not a member of the court, but the fact that part of the alleged crimes took place in Bangladesh, which is a member of the ICC, means the court could seek powers of jurisdiction, she argued.

The Myanmar government has meanwhile said the ICC prosecutor's move was an attempt to override the principle of national sovereignty that goes against the principle enshrined in the UN Charter.

Bangladesh has not responded to the ICC letter yet.

Prof Mizanur said traditionally if genocide or ethnic cleansing is committed inside a country, that country has the jurisdiction over the particular crime.

However, over the years the territorial principle of state jurisdiction has been broadened and extended through state practice. The idea of “objective territorial principle” has been established.

“That means as the crimes against Rohingyas have been committed in Myanmar, it certainly has territorial jurisdiction, but Bangladesh also has jurisdiction because the aftereffect of the crime is being felt in Bangladesh. We have been compelled to house almost one million refugees,” he said.

So, if someone says Bangladesh is interfering without any lawful authority, it would not be tenable under the existing principle of modern international law, he said, adding that the question now is the state policy of Bangladesh on that matter.

Given the fact that genocide is the greatest form of international crime, Bangladesh now has an international legal obligation to play its role so that the crime is established in the court of law, he observed.

He further said the dilemma for Bangladesh is geopolitics as China and India, two large neighbouring nations, are favouring a bilateral solution to the Rohingya crisis.

“I think our foreign office has to show maturity now… We have to take the risks. There are times when we don't have the time to waste on deliberations. It is a time for action,” said Prof Mizanur.

He suggested that the foreign office's task should be documenting evidence of the atrocities against the Rohingyas, including verbal and physical ones. A number of aid agencies that are working on the matter can be helpful in this regard, he added.

The foreign ministry can form a committee with experts of international law, crimes and the ICC operations, he added.

“There are Bangladeshi experts not only in Bangladesh but also overseas. They can help in this regard best. This should be done immediately … A lot of time has already elapsed,” Prof Mizanur noted.