AS THE world looked on in utter horror, the brutality of the Sheikh Hasina regime unfolded with unbridled extremes, reaching its peak intensity in the second half of July 2024. By the end of July, the unabated murders, tortures, enforced disappearances and imprisonments had reached a stage unseen or unheard of since the days of the Pakistani army鈥檚 brutal occupation in 1971. As an international human rights lawyer from Bangladesh, I could no longer remain a mere observer. I rang my friend and former colleague Ms Alison Battisson, the best international human rights lawyer that I know in Australia, and we decided to lodge an urgent communique with the Office of the Prosecutor at the International Criminal Court on August 1, 2024.
Almost 12 weeks on, the scenario has changed drastically. Hasina has fled the country, and the interim government is juggling multiple challenges while striving to get state machinery back in sustainable order. Of significant relevance to this article, which will hopefully reach the attention of the chief adviser Professor Muhammad Yunus, the interim government has also appointed a chief prosecutor with a view to prosecuting perpetrators of the Hasina regime in the International Crimes Tribunal of Bangladesh.
While being fully respectful of the wishes and sentiments of all concerned to conduct trials of the Hasina regime in Bangladesh for the heinous crimes against humanity, this author requests the interim government to consider referring the Hasina regime鈥檚 crimes against humanity to the Office of the Prosecutor of the International Criminal Court for reasons including the following:
Firstly, investigation and trial by prosecutors at the ICC will attract a lot more international credibility than that of an ICT in Bangladesh. This is not to undermine the quality or prudence of our capable law officers; however, the foundational framework of the ICT has caused concerns amongst human rights groups in the past both in terms of its substantive and procedural aspects. For example, inclusion of the death penalty, offences not being delineated with sufficient clarity, perceived lack of due process for rights of accused, and prohibition in Article 47A of our constitution against right of judicial review have not only made the ICT susceptible under international standards of best practices but also require constitutional refurbishments not within the purview of the current interim government.
Secondly, the investigation and fact-finding in the age of video, audio and electronic evidence will greatly benefit from the resources and expertise of the ICC prosecutors and relevant United Nations bodies. Human Rights Watch has proposed to our interim government to present, or support the adoption of, a resolution at the United Nations Human Rights Council that establishes a UN-backed independent mechanism with a comprehensive mandate to investigate, collect, store, and analyse evidence and cooperate with credible and independent national and international bodies towards accountability in relation to the violent incidents of July and August 2024 and its root causes. The material scope of an investigation encompasses acts by all relevant actors, including but not limited to previous cases of enforced disappearances, extrajudicial killings and torture.
Thirdly, an ICC investigation will encompass all relevant actors of the Hasina regime in their involvement in crimes against humanity in Bangladesh. This will provide further credence and credibility to the interim government in its aspired role of impartiality and accountability while being steadfastly committed to the cause of justice. It will negate fear of cherry-picking of accused, or worse, a vengeful political witch-hunting exercise. As it stands, the current attorney general of Bangladesh has been a senior office bearer of the Bangladesh Nationalist Party until the day of his appointment; his additional attorney generals are all known as pro-BNP lawyers. I have personally known them as lawyers of excellent credentials and experiences; however, the fact that they are aligned with a political party at the receiving end of brutal oppression by the Hasina regime for 15 years causes concerns regarding perceived bias. The chief prosecutor of the ICT was not only the defence counsel for the Jamaat-e-Islami leaders who were previously tried in the ICT, he also served as junior counsel of the former assistant secretary general of the Jamaat-e-Islami who led the defence counsel team. We need to heed the old adage that justice must not only be done, it must also be seen to be done.
Fourthly, Sheikh Hasina is currently in India under state protection. The extradition treaty between India and Bangladesh puts an onus on India to extradite Hasina to Bangladesh under prescribed circumstances, unless the extradition is not requested 鈥榠n good faith鈥� or will not serve 鈥榠nterests of justice鈥�. For the reasons enumerated above, it will be wise to refer Hasina and her regime to the jurisdiction of the ICC and negate the possibility of India citing lack of good faith or interests of justice in order to refuse extradition, or worse, granting her a permanent political asylum for those reasons.
Fifthly, the ICC referral process may present itself as a great opportunity to establish a sound and credible factual archive of crimes committed by the fascist Hasina regime for historical records. It will pave the way to form a Truth and Reconciliation Commission without judicial powers to be mandated by the ICC and supported by our local and ICC investigators, UN experts and international human rights organisations to collect, verify, collate and archive evidence of atrocities committed by the Hasina regime. This will not only pave the way for historical evidence for future generations but will also facilitate eventual reconciliation of deep political divides that permeate our society at large. The body of evidence thus gathered and verified can then be utilised by the prosecutors at the ICC to further its prosecution of alleged perpetrators.
Karim Khan KC, the chief prosecutor at the ICC, has met chief adviser Professor Muhammad Yunus and expressed his willingness to cooperate with the interim government. However, the ICC at this stage is unlikely to proceed with its investigation into crimes against humanity perpetrated by the Hasina regime unless voluntarily referred to by the interim government while holding its domestic investigations or prosecutions in abeyance. Because of the issue of admissibility under the Rome Statute by which it is governed, the ICC will not assume jurisdiction in cases where the relevant member state is investigating or prosecuting the alleged perpetrators under its own domestic laws. However, for the sake of international credibility and eventual healing of the deepening fault lines of historical animosity that have divided us since independence, an impartial international conduct of trials by ICC prosecutors at this juncture may well be the most prudent way forward.听
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Zaki Omar is an international human rights lawyer based in Australia.
