THE name ‘Bangladesh’ is not stranger to the International Criminal Court. It was one of the earliest signatories to the ICC Rome Statute and ratified the same on March 23, 2010. Publicly available information shows that the ICC received at least four communications containing complaints (institutionally known as Article 15 Communications or Communications) related to the recently ousted prime minister Sheikh Hasina and her associates, dated June 29, 2013, February 4, 2014, August 1, 2024, and October 28, 2024, respectively.
The ICC re-emerged in Bangladeshi public discourse on November 8, 2024. This time, however, the communication was filed by an Awami League leader against the leadership of the incumbent interim government and the Anti-Discrimination Student Movement. While this communication may be politically motivated, its legal prospects merit careful examination under the law and practice of the ICC.
Before approaching the anatomy of the communication in question, it is pertinent to shed some light on its contents. Filed under Article 15 of the Rome Statute, this communication alleges that all advisers of the current interim government, including chief adviser professor Muhammad Yunus, as well as certain student leaders of the July uprising, are responsible for alleged crimes of genocide and crimes against humanity against Awami League supporters, minority community members, and police forces in Augusy 5–8. The communication reportedly includes around 800 pages of documentary evidence. Although no public documents are available for this communication, the communicator’s press release provides sufficient background to understand its legal prospects.
To begin with, this type of communication is intended to provide the ICC prosecutor with information on crimes committed within the Court’s jurisdiction. The ICC may consider investigating and prosecuting certain crimes in three ways under the Rome Statute: referral by an ICC member state, referral by the UN Security Council, and initiatives of the ICC prosecutor. In respect of the ICC prosecutor, Article 15 of the Rome Statute empowers him to initiate a preliminary examination based on information available to him.
As per the OTP’s Policy Paper on Preliminary Examinations 2013 (2013 Policy Paper), the prosecutor may receive information from ‘individuals or groups, states, intergovernmental or non-governmental organisations, or other reliable sources.’ In fact, the ICC has a dedicated portal to receive such communications. While many Article 15 communications have been positively considered by the prosecutor, this process does not guarantee any action. Since anyone can submit a communication regardless of their connection to the alleged crime or the credibility of the claims, it is safe to assume that many such communications become unsuccessful as per the ICC standards.
At this point, the prospect of this communication warrants some scrutiny. The OTP, after receiving a communication, follows a four-stage procedure to determine its prospects as per the 2013 policy paper. First, the OTP assesses and verifies information on alleged crimes to determine if they fall within the ICC’s jurisdiction. Second, it conducts a detailed assessment to confirm the jurisdiction of the Court over the alleged crimes and identify potential cases, focusing on large-scale or systematic offences. Third, it validates if potential cases are serious enough and not being addressed by national courts, while also collecting more information on the crimes. Fourth, the OTP assesses whether starting an investigation serves the interests of justice.
If the prosecutor determines there is sufficient basis for a crime within the court’s jurisdiction and concludes that the proceeding meets the gravity of the offence and the interests of victims, he may initiate a preliminary examination. At this point, the prosecutor cannot automatically initiate a full-fledged investigation. Upon finding sufficient evidence through the preliminary examination, he must seek authorisation from the Pre-Trial Chamber of the ICC, which may either approve or reject the request for investigation. If the prosecutor is unconvinced by an Article 15 Communication, he may choose not to proceed at any point of the four-stage procedure.
It is evident that the ICC takes considerable time before deciding to invest its time and resources in a particular situation. While some may view this Article 15 Communication as a promising start, there is little likelihood that it will pass all four stages outlined in the 2013 Policy Paper. Three areas invite particular attention. Three specific issues merit attention.
First, the Article 15 Communication may struggle to meet the subject matter jurisdiction of the Court, i.e., crimes under its jurisdiction. Though there is credible evidence of human rights violations after August 5, it is highly contested whether those events reached the threshold of crimes against humanity, let alone genocide. This raises questions about the adequacy of the evidence provided with the Communication to establish the contextual elements of these crimes and meet the required thresholds of the Rome Statute.
Given the plethora of disinformation and misinformation regarding the events in August 5–8, the OTP will face significant challenges in verifying the accuracy of the information. However, the ICC is already aware of the limitations associated with digital evidence. It is expected that the OTP will objectively assess and corroborate the submitted evidence with third-party sources.
Second, the Article 15 Communication may face additional difficulties in establishing the ICC’s personal jurisdiction requirements. The names listed in the complaint are surprising, especially given that it alleges the interim government advisers’ responsibility for crimes that occurred prior to their appointments. Similar concerns apply to the ADSM leadership. This communication may presumably encounter insurmountable challenges in providing sufficient evidence to establish individual responsibility for these alleged crimes under the Rome Statute.
On another note, naming individuals in the communication is not an end in itself. The OTP first investigates the situation and subsequently, upon receiving a certain standard of evidence, moves to cases against specific individuals. Thus, naming the individuals in this communication does not serve any immediate legal purpose. It may be that this naming holds no significance beyond the press release.
Third, this communication will likely confront admissibility issues. Given that the International Crimes Tribunal in Bangladesh is investigating crimes committed on or before August 5, the OTP will certainly address the complementarity principle here. Moreover, it will also address the gravity of the alleged crimes, which is very high in the Rome Statute. The issue of admissibility of evidence will re-emerge in this context. Furthermore, the OTP will assess whether this communication serves the interests of justice or constitutes an abuse of process. In summary, this communication is unlikely to progress beyond the initial stages of the four-stage procedure. It is not an overstatement to say that this communication may never see the light of day.
Generally, Article 15 communications are kept confidential, with the ICC providing safeguards to ensure the privacy of the communicators and the safety of communicators. In this instance, however, the communicators have made the complaint public. Given the wiry legal prospects of this communication and the Awami League’s call for nationwide demonstrations post-US presidential election, this communication seems politically motivated, likely intended to rally supporters rather than genuinely pursue justice. To sum up, this communication may stand as yet another example of the ICC process being utilised for political purposes.
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Quazi Omar Foysal is an international law expert, working at American International University-Bangladesh.
