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April 25, 2004

Ratification of the Rome Statute by Bangladesh
Question, concerns and dilemmas

Ahmed Ziauddin

The purpose of this article is to address various questions, concerns and issues raised by the officials and others, relating to ratification by Bangladesh of the Statute establishing the International Criminal Court (ICC), known also as the Rome Statute. Bangladesh was one of the leading Asian country active during its negotiation in Rome in 1998 and subsequently, was the third in Asia and first in South Asia to pen this landmark treaty in September 1999. Since its signature, the Statute had been under consideration of the government for ratification.

Over the years, Bangladesh officials, both at home and abroad, in formal and informal meetings, have pointed out a number of issues that have come up during analysis and consideration phase of the ratification process. Often, to ratify an international treaty, an inter-ministerial committee examines and assesses all aspects before the initiating ministry submits it for Cabinet's discussion and approval. No such inter-ministerial committee was formed to review the Rome Statute, but it was examined by the experts of the Ministry of Foreign Affairs, and to a certain extent, by the Ministry of Law officials.

The Statute that set up the first ever-permanent international criminal came into force on 1 July 2002 following its 60th ratification. Then, senior officials including its Judges, Prosecutor and Registrar were elected, and with 280 officials and staffs, are now busy with first two situations referred to by Uganda and Democratic Republic of Congo (DRC).

Until today, 139 States have signed the Statute while 93 States have ratified, thus making a history as one of the fastest ratified international treaty. Many believed it would take decades for the international community to ratify and establish the ICC. In reality, it was in force little before fourth anniversary of its adoption. Countries all over the globe and from all regions, 23 African, 18 Latin American and Caribbean, 12 Asian and Pacific, 14 Eastern European, and 26 Western European and other States have already ratified it.

Bangladesh and the Rome Statute:
Bangladesh was one of the 120 countries that voted in favor of adoption of the Statute of the ICC in Rome in 1998, where 160 other nations joined the diplomatic conference convened by the United Nations. Bangladesh delegation comprised of its Ambassador in Rome and a team from Dhaka actively participated in the negotiation, in particular debates relating to gender and gender related crimes. A handful of Bangladeshi non-governmental organizations also made their presence felt in Rome.

It took little over a year for Bangladesh to sign the Statute, and at the time of signature, it came under detail scrutiny. The government experts raised several questions on judicial sovereignty, consequences on penal provision, relations with existing international treaties, and the Constitution. Bangladesh's move of its early signature received international acclimation for her support to the development of international law and justice.

Immunity: Question on President's immunity and others were raised as an important issue of consideration. Under Article 27, the Rome Statute shall apply "equally to all persons without distinction based on official capacity." This provision often found to contravene many national constitutions that provide various degrees of immunities to the kings, Queens, heads of the states, and others.

Immunities are not homogenous; they vary between states and as between the different types of privilege, they afford. In some cases, the scope of conduct are covered by immunity is limited, while in others, it is absolute on its face, apparently guaranteeing the inviolability of the person. The countries that have ratified so far have applied as many as seven different approaches to address this question. Most of the States have adopted interpretative approach, teleological approach, or purposive approach. No country has thus far amended the constitution to revoke Kings or Presidents immunity.

The Constitution of Bangladesh in Article 52 offers immunity to the President for acts "in the exercise or purported exercise of the functions of his office", and Article 53 provides provision of impeachment of President on charge of violating the Constitution. Bangladesh adopted functional approach to immunity to prevent frivolous or politically motivated interference in the governance of the country in consistent to the Constitution. It is not possible to commit ICC crimes without violating the Constitution.

Moreover, under Article 48, the President has very limited constitutional power. He acts in accordance with the advice of the Prime Minister. Therefore, his possibility to come under the Court's jurisdiction is highly improbable.

Penalties (Life imprisonment and death penalty): In number of countries there are constitutional provisions prohibiting life imprisonment while under Article 77 the ICC may impose life term for extreme gravity of crimes. It will not impose death penalty. However, the Statute's penal provision, like life imprisonment or death sentence as practiced in Bangladesh, would not entail doing away with death penalty upon ratification. In fact, Article 80 of the Statute provides that penalty provisions of the Statute will not affect inclusion or prohibition of particular penalties in national laws. Therefore, there are no consequences in imposing death penalty if Bangladesh ratifies. Nevertheless, as it sets the minimum standard of international norms, non-inclusion of death penalty reflect current trends of abolition of such punishment.

Definition of Crime of Aggression: The Crime of Aggression found a place in the Statute but the governments in Rome could not agree to a common definition and how the Court would exercise jurisdiction. A Working Group on Crime of Aggression at the Preparatory Commission (PrepCom) meetings then continued the discussions but remained inconclusive. Now, the Assembly of State Parties will take over the work on defining the crime of aggression.

Non-inclusion of the Crime of Aggression as one crime for the Court to exercise jurisdiction cannot be a justification not to ratify the Statute. Such approach undermines other three serious crimes of international concern that the Court will deal with. Moreover, those States who are concerned about crime of aggression, its definition and exercise of jurisdiction should rather ratify the treaty to join as full participant of the Assembly of State Parties. By ratifying the Statute, the States could then effectively contribute as full voting member to include the crime of aggression. Staying out of the Court will offer States no opportunity to influence the course of event.

Higher Threshold: There are some concerns about higher threshold of crimes and its possible impacts on national legal order. It is true that the government delegates at the Rome negotiation were very careful so that the Court should only deal with the cases of major concern to the international community. In this regard, the negotiators agreed that the crimes to be defined clearly including the elements of the crimes, and provided numerous safeguards against abuse of the process.

The thresholds of the crimes, therefore, are every high. Higher bars were put to protect frivolous or motivated cases ever to reach to the Court. However, largely, the Statute set the minimum standard of justice. Nevertheless, one can argue that not holding a trial to ICC standard may tantamount to inability on the part of the State, triggering ICC's jurisdiction.

This must be seen in the context of the principle of complimentarity, where ICC will not interfere if a State Party carried out a genuine investigation or prosecution. Therefore, higher threshold of the crimes cannot be any ground for the State not to ratify the Statute, rather, ratification will likely to generate aspiration to improve the national legal system to minimum international standard.

Mental Elements: Some have expressed concerns about the mental element (<>mens rea<>), necessary for criminal responsibility in the ICC crimes, and whether it is different from the age-old concept applied in Bangladesh, and its possible consequences of ratification. If so, whether it would require re-writing of entire penal and procedural laws of Bangladesh.

Such arguments are unfounded. Under Article 30 of the Statute, "a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge". It defines intent and knowledge. The Statute never intended to compel nations to change all the criminal provisions; rather, the principle of complimentarity under Article 1, and in Preamble reinforces national systems. However, States have always been under obligations to bring domestic norms to internationally recognized standards.

This is illustrated by the fact that major Commonwealth countries including Canada, New Zealand, UK, South Africa, Ireland etc, with similar common law principles, did not find any contradictions with the mental element aspect of the ICC and their legal systems. Ours, based on same principles, do not have to change because of mental element requirement of the ICC crimes.

Regional Considerations: Bangladesh is the only South Asian country to have signed the treaty. It is, therefore, natural to inquire about the perceptions of the neighbors, and to weight any consequences. However, Bangladesh has always been ahead in fulfilling its international responsibility compared to other countries in the region. On the one hand, regional situation appears bleak, but on the other hand, signs of hope are there. Nepal's government, before recent dissolution of parliament, all but decided to ratify the Statute to arm itself with additional weapon of law against the rebels. As peace, dividends in Sri Lanka gets momentum, government's earlier opposition in all probability will dissipate. Moreover, Bangladesh ratification is not likely to put the nation at any particular disadvantage vis-à
-vis its neighbor. Rather, Bangladesh would gain substantial benefit from good wishes of the world community to stand-alone among neighbors in favor of international law.

US Role: US opposition to the Court is indicative of the Court's potential power, and its independence. The US opposed the Court to the extent of un-signing its signature demonstrated that as far as US is concerned, the Court will to be effective, and will exercise power independently, and stay beyond US influence. US would not have opposed the Court had it been certain about influencing it. In addition, US are unsure of its future activities that might attract the Court's jurisdiction.

To shield American nationals from the ICC's reach, US has aggressively campaigned and succeeded in securing bilateral non-surrender agreements with as many as 72 States, 33 of which are State Parties to the ICC. Typically, under such an agreement, US secures promise not to surrender a wanted American before the ICC or other international tribunal without agreement of the United States.

US applied unfair, illegal and immoral tactics including withholding of military aids, to obtain such agreements. Bangladesh is also one of the 15 Asian countries that have signed such an agreement.

These bilateral non-surrender agreements have no legal effects on the ICC, and States are free to ratify the Statute. It merely expects not to handover American nationals found of the territory of State Party. It however does not prevent the State to exercise judicial sovereignty to prosecute such a person for commission of international crimes and to fulfill the principles complimentarity. As such, despite a signatory to a non-surrender agreement, Bangladesh still could ratify the Statute.

Conclusion: International system had long been chaotic, but quietly, international law has now developed to the extent that today a person could be individually held criminally responsibly for committing international crimes. It was not very long ago when international law was solely government affairs, but now; we all are subject to international law. International law now is the connecting cords of humanity. Serious international crimes will continue to be committed around the world, but as the ICC gradually leaves its imprints, future perpetrators will not be as immune as they are today

Considering national experiences and trauma, Bangladesh cannot let commission of genocide, crimes against humanity, or war crimes, not on any soil and certainly not Bangladesh. Thus, Bangladesh has no fear to say yes to the ICC.

Ahmed Ziauddin Convener, Asian Network for the ICC (ANICC).