Why we recommend referral of situation in Bangladesh to ICC prosecutor by the interim govt

We congratulate the interim government on assuming their important roles in taking Bangladesh forward to a peaceful and democratic future and their recent achievements, including Bangladesh’s accession to the International Convention for the Protection of All Persons from Enforced Disappearance.

We write this piece as friends of Bangladesh who have been working for years to seek to protect the rights of individuals in the country during the time of the previous government. We are not affiliated with any political party and solely wish to see a peaceful and democratic Bangladesh, where past human rights violations are addressed efficiently by an international judicial process. We consider such a process to be the bedrock for a lasting democracy in the country and the most effective form of justice afforded to the victims of the violations and their families.

In our opinion, the International Criminal Court in the Hague is the most reliable judicial body for the purpose of investigation and prosecution of the serious crimes committed by the previous government.

There are two main types of crimes committed by the previous government, which could both be referred to the ICC:

• A. The killings and other human rights violations during the recent student-led protests; and

• B. Enforced disappearance and summary executions of people the last decade with the previous government denying such detentions but some detainees being released upon Sheikh Hasina leaving Bangladesh;

We note the clear international crimes committed in Bangladesh both before the advent of the student-led protests and during these protests. Before the July-August 2024 protests, the most heinous of these offences took the form of enforced disappearances, summary executions, the use of torture, and the oppression against dissidents that forced many Bangladeshis to flee the country and to move abroad. During the protests, there is strong evidence of the mass slaughter of the protesters and that the orders to carry out these crimes appears to have been given from the very top of the former Bangladeshi government.

We note the cycle of violence, retribution and impunity in Bangladesh maintained by the governments of the two major political parties that have alternated in power in the country’s recent history. The interim government, being non-aligned, has the perfect chance and authority to break that cycle and we hope that the new authorities will take this opportunity to fulfil that objective.

We strongly support a referral, by the interim government, of the crimes against humanity committed during the previous government, including crimes committed before and during the student protests, to the International Criminal Court (ICC) as the Prosecutor’s office of the ICC is the most effective international body for the investigation and prosecution of such crimes.

A state referral to the Court by the interim government would allow the ICC Prosecutor, Karim Khan KC, to commence an investigation without having to seek permission from the Pre-Trial Chamber of that Court. There are a number of reasons why a referral to the International Criminal Court is preferable to the potential re-establishment of the International Crime Tribunal. These include the following:

A. Objectivity of the ICC Process: given the international nature of the ICC and the fact that those investigating, prosecuting, and judging crimes have no links to Bangladesh or connection to the political factions there, this process could not be criticised as being biased or a form of victor’s justice.

This would allow the democratic political processes to continue in Bangladesh, whereas a domestic prosecution aimed at perpetrators aligned with the previous government is likely to create tension and mistrust within the society, and contribute to potential instability in the country.

One only has to consider the international perception of the International Crimes Tribunal as biased and rights abusing body, because of how it was previously operated, to understand the many problems which would arise if that body were used to prosecute the most serious offenders. The use of this tribunal might undermine the support that the international human rights community is rightly extending towards the Interim Government.

A perceived lack of objectivity of domestic prosecutions of those at the apex of the crimes that have been committed, alongside the provision for the death penalty in Bangladeshi law, would also create difficulties in relation to the extradition of suspects, as many states’ courts may rule against extradition based upon a lack of a guarantee that the fair trial rights of the suspects would be protected. Holding trials in absentia for those that Bangladesh would not be able to extradite, would seriously damage the reputation of Bangladesh within the international community.

The International Criminal Court would not have this problem and further can prevail upon its 124 members state countries who are required to extradite those with ICC warrants against them as well as not drawing  objections in relation to objectivity from non-ICC states.

B. A referral to the ICC also protects against potential impunity caused by any future Bangladeshi government replacing the Interim Government: whilst a domestic process could be discontinued by a future Bangladeshi government, once a state referral was made by the Interim Government and the ICC prosecutor opens an investigation, this would not be subject to any veto by any future government.

Therefore, a referral to the ICC would help prevent the continuation of impunity in Bangladesh and would hopefully influence the future behaviour of any Bangladeshi governments.

C. A referral to the ICC would also protect the resources of Bangladesh: as you are acutely aware Bangladesh currently faces a difficult rebuilding process with almost all state institutions needing to be restructured and the political and security environment needing to be strengthened so that free and fair elections can take place.

A state referral of the situation in Bangladesh would allow the Interim Government’s resources to be directed towards these other important matters and would allow resources to be focused on these difficult but important tasks.

D. An ICC referral would also allow for the use of evidence produced by the ICC Prosecutor’s Office for future prosecutions of those lower down or within a truth and reconciliation process:  If, as we expect, the ICC Prosecutor was to request arrest warrants to put on trial those near the top of the previous Government and security forces, the evidence objectively collected could also be used to address the violations lower down the scale, which could either be prosecuted locally or used in a countrywide process, such as but not limited to, a truth and reconciliation process alongside the ICC’s prosecution of those most responsible. This would give the Interim Government a double advantage to move the country towards a more stable democratic future.

We call on the interim government to announce a referral to the ICC which would serve as a message to the world, that there will be no impunity for the serious crimes against humanity committed  in Bangladesh, whilst showing that an endless cycle of persecution can be broken as Bangladesh moves into a bright future. 

* Michael Polak, International Law Barrister specialising in public international law, international crime, human rights, private prosecutions, strategic litigation, and serious criminal offences. He is known for his work before international courts, United Nations bodies, human rights-related arbitrations, and proceedings worldwide, Lawyer for Ahmad Bin Quasem, Director of Justice Abroad.

* Abbas Faiz, Human rights expert on South Asia; former Amnesty International senior researcher on Bangladesh; decades of experience engaging with United Nations human rights mechanism; lecturer in law at the University of Essex; until recently, the Special Envoy of the Government of Maldives monitoring the investigation, prosecution and trial of persons involved in a terror attack.