Can We take action against the dictators? and How can we ensure that?

The International Criminal Court (ICC)

The International Criminal Court in The Hague prosecutes those accused of war crimes, crimes against humanity and genocide.

In 1998, 60 countries signed the Rome Statute after it was opened for signature by the United Nations. The Statute laid the foundation for the establishment of the International Criminal Court in 2002. Its purpose is to investigate and prosecute war criminals.

Crimes within the jurisdiction of the International Criminal Court

·         War crimes

War crimes include torture, mutilation, corporal punishment, hostage taking and acts of terrorism. This category also covers violations of human dignity such as rape and forced prostitution, looting and execution without trial. War crimes, unlike crimes against humanity, are always committed in times of war.

·         Genocide

This includes all acts committed with the intent to destroy a national, ethnic or religious group.

·         Crimes against humanity

Crimes against humanity are acts committed as part of a widespread or systematic attack directed against any civilian population, such as murder, deportation, torture and rape. The ICC prosecutes the perpetrators even if the crimes were not committed in times of war.

Consequences of the crime of aggression

The states that are party to the Rome Statute have not yet reached consensus on the definition of and punishment for aggression. Until they do, the ICC is unable to prosecute individuals for acts of aggression.

The powers of the ICC

The ICC is only competent to hear a case if:

• • the country where the offence was committed is a party to the Rome Statute; or
  • the perpetrator’s country of origin is a party to the Rome Statute.

The ICC may only exercise its jurisdiction if the national court is unable or unwilling to do so. The ICC only has jurisdiction over offences committed after the Statute’s entry into force on 1 July 2002.

Referring a case to the International Criminal Court

Various parties have the right to refer a case to the ICC:

• • any State Party to the Rome Statute, irrespective of any involvement in the alleged offence;
  • the Prosecutor of the ICC;
  • the United Nations Security Council

The United Nations Security Council may ask the ICC to defer investigation of a case for a limited period if it considers that the proceedings would constitute an obstruction to its powers.

The Statute was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. In accordance with its article 125, the Statute was opened for signature by all States in Rome at the Headquarters of the Food and Agriculture Organization of the United Nations on 17 July 1998. Thereafter, it was opened for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute was  opened for signature in New York, at United Nations Headquarters, where it will be until 31 December 2000.

The United States, Israel, India, Pakistan are not in the list

2. Definition of Crimes against Humanity and Genocide in the ICT Act 1973

2.1. Crimes against Humanity

Section 3(2) (a) of the ICT Act 1973 provides jurisdiction over crimes against humanity. The law defines following acts as crimes against humanity,

“[N]amely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated.”

The definition of crimes against humanity in the ICTB is more or less similar to the meaning of the same crimes enshrined in the International Military Tribunal (IMT) Nuremberg Charter Article 6(c). However, the nexus of ‘international armed conflict’ as a threshold requirement of crimes against humanity that sufficiently differentiated crimes against humanity at the IMT Nuremberg from ordinary crimes were deliberately left out in the ICTB’s 1973 Act. In 1971, under customary international law, crimes against humanity needed to be committed in an international armed conflict, which was argued by the defence in many cases. Nonetheless, the Tribunal repeatedly observed, “[c]rimes against humanity can be committed even in peacetime; the existence of armed conflict is, by definition, not mandatory.”

At the same time, the definition of crimes against humanity also did not reflect the recent development of the customary international law of the same crime as enshrined in the international legal instruments in the late 1990s. The defense in the ICTB challenged the definition of crimes against humanity under the 1973 Act as inadequate and inconsistent with the definition under customary international law presently. In reply to the defense’s challenge, the ICTB held that the definition does not require the commission of the constituent offenses to be ‘widespread or systematic,’ a legal element required in Article 7 of the ICC Statute.

In reply to the defense of the ICTB, both of the above legal arguments- ‘international armed conflict’ nexus and ‘widespread and systematic’ attack against any civilian population are not linked with crimes against humanity is not self-evident as forwarded by the Tribunal. It cannot be justified simply as the Tribunal never analyzes the relevant customary law requirements of crimes against humanity in 1971 and today. At the same time, the nexus of ‘international armed conflict’ was one of the essential elements of crimes against humanity to prove the international criminality of such atrocious acts and to differentiate crimes against humanity from domestic or ordinary crimes. It remained valid until 1992 because, in 1993, the ICTY Statute was adopted by the UN Security Council, which relaxed the strict application of the nexus of ‘international armed conflict’ in the jurisdiction of crimes against humanity. Then, in 1995 the nexus of ‘international armed conflict’ was totally abolished by replacing ‘widespread and systematic’ attack against any civilian population as the threshold requirement of crimes against by the ICTY Appeal Judgment in the case of Tadić (Prosecutor v. Tadić, para. 141). Additionally, the definition of crimes against humanity in the ICTB is not similar to the other international and internationalized criminal justice mechanisms such as those in East Timor, Sierra Leone, and Cambodia. These criminal courts clearly defined crimes against humanity as reflected in the time’s customary international law. The definition adopted in these mechanisms’ statutes mentions that crime against humanity needs to be committed as a ‘systematic’ or ‘widespread’ attack directed against a civilian population on national, political, ethnic, racial, or religious grounds. However, the ICTB persisted unclear about why its definition of crimes against humanity does not reflect the latest customary law status in 1971 and 2010.

2.2. Genocide

Genocide is mentioned in Section 3(2)(c) of ICT Act 1973, which states,

“Genocide: meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as (i) killing members of the group; (ii) causing serious bodily or mental harm to members of the group; (iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (iv) imposing measures intended to prevent Births within the group; (v) forcibly transferring children of the group to another group.”

The 1973 ICT Act defined the offense of genocide in such a way that is more comparable to the typical definition in the statutes of the ICTY, ICC, International Criminal Tribunal for Rwanda (ICTR) and, Article 2 of the Genocide Convention,16 with two significant differences: (1) Political groups are incorporated in the ICT Act 1973, and (2) the phrase ‘as such’ has become ‘such as.’ These incorporations contradict the rule promulgated in the 1948 Genocide Convention as well as in the ICC Statute.

Concerning the first problem in the definition of genocide, the inclusion of political groups is not covered by the internationally recognized definition and, therefore, does not reflect prevailing customary international law, neither in 1971, at the time when the crimes were committed nor in 2010 when the Tribunal started its operation (O’Keefe 2015, p. 70). Relating to the second modification from ‘as such’ to ‘such as’ made in the ICT Act 1973, the definition of the genocide, therefore, reads ‘with intent to destroy, in whole or in part, a national, ethnic, racial, religious, or political group’, as such, before listing the acts and therefore modifies the exhaustive list of acts into a non-exhaustive list (Bergsmo and Novic 2011, p. 507; Linton 2010, p. 246). This mix-up of words was probably an unintended mistake by the drafters of the ICT Act 1973 (Linton 2010, p. 245). In this case, the consequences of this mix-up are significant. On the one hand, given that the list of acts is non-exhaustive, the crime of genocide can be committed through other acts than those listed. On the other hand, this drafting mistake also deteriorates the intent prerequisite because the group does not have to be attacked ‘as such.’ The element ‘as such’ creates the requirement that the accused must act with the intent to destroy the respective group in its quality as that group (O’Keefe 2015, p. 80). The ICTR case law found that the element ‘as such’ clarifies the specific intent and serves to draw the line between mass murder and genocide (Prosecutor v. Niyitegeka 2004, para. 53). However, the ICTB did not deal with these legal problems but merely disregarded the discrepancies and argued in many cases by regarding all pieces of evidence that the definition of genocide in the ICT Act 1973 conformed to the definition in the Rome Statute (Chief Prosecutor v. Abul Kalam Azad, para. 156), while the meaning of the same crime in the Rome Statute17 has not added ‘political groups’ as one of the protected groups. Therefore, it is inferred from the above discussion that the ICTB has errors to define crimes against humanity and genocide as per customary law requirements in 1971-the material time of the commission of the offense and 2010- the time of the prosecution of the alleged crimes before the Tribunal in question.

However, it is questionable whether the issue of ‘Bangladesh Tribunal’s legal errors in defining crimes against humanity and genocide’ is sensitive in the context of Bangladesh and international criminal justice. The issue is sensitive because it needs to be dealt with carefully to avoid domestic and international criminal law discrepancies to improve Bangladesh’s legislative system and harmonize it with international criminal law. Then, the issue is highly sensitive in the academia of international criminal law and tribunal, to evaluate the overall performance of the Tribunal that is prosecuting and punishing the perpetrators of international crimes in violation of some fundamental rights (in Bangladeshi law). For example, Article 47A of the Bangladesh Constitution infringes on several fundamental rights of the accused under the ICT Act, including the right to the prohibition of retroactive prosecution. Article 47A of the Constitution reads, “(1) The rights guaranteed under … Article 35 … shall not apply to any person who is convicted for crimes against humanity, genocide, etc.” Article 35 (1) of the Constitution says,

“No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.”

One of the great debates is whether the ICT Act is unconstitutional since it has excluded some fundamental constitutional rights of Bangladeshi citizens who had been found guilty under the ICT Act. The simple reading of the above provisions of the constitution suggests that whoever will be indicted in the ICT Act 1973, as amended, will not be able to challenge the validity of the Act even though it violates one of the fundamental rights protected by the Constitution, which is nullum crimen sine lege (no crime without law). Lastly, to examine the legal credibility of the Tribunal to provide international criminal justice to the parties. One of the reasons is the international community welcomed this noble initiative and signified it as one of the first tribunals in South Asia in ending the past impunity for international crimes since the IMT Nuremberg between 1945–1946, and the International Military Tribunal for the Far East (IMTFE) Tokyo between 1946–1948 (Menon 2017, pp. 3–4). Hence, the topic is legally sensitive to provide justice to the parties involved and cherish the rule of the Bangladesh legal system. Once the legal faults of the ICTB have been examined in defining crimes against humanity and genocide, it is the substance of the current discussion to outline the status of international law in the Bangladesh legal system in order to determine the legal obligation of the ICTB in applying treaty and customary international law to define the prosecutable crimes in the Tribunal.

In approaching the meaning of Article 5, the provision is clearly expressed in the language of obligation rather than framed as a mere objective or encouragement. As mentioned above, the International Court of Justice observed in its judgment in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (2007 Judgment), in respect of the identical term ‘undertake’ in Article 1 (with the same term used in Article 5) that,

“The ordinary meaning of the word ‘undertake’ is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties.”

(Bosnia and Herzegovina v. Serbia and Montenegro, p. 162)

Who are some of the court’s high-profile indictments?

Vladimir Putin. The ICC ordered Putin’s arrest on the grounds that he is allegedly responsible for the war crime of forcibly deporting and transferring “at least hundreds” of children from occupied Ukrainian territory to Russia. The court issued a corresponding warrant for Russia’s children’s rights commissioner, Maria Lvova-Belova. Ukrainian President Volodymyr Zelenskyy lauded the arrest warrants as “a historic decision” by the court. Russia’s government said it does not recognize the court’s jurisdiction, but it has acknowledged transferring Ukrainian children to live with foster families in Russia and sending them to attend “rehabilitation” programs, which some Western observers have described as propaganda or a “political re-education.”

Most legal experts see Putin’s warrant as symbolic, noting that it is unlikely he will be arrested anytime soon. However, the indictment has already limited Putin’s ability to travel abroad and attend important diplomatic forums. Putin was forced to virtually attend the 2023 BRICS summit with the leaders of Brazil, India, China, and South Africa after host government South Africa pressured him not to travel there. As an ICC member, the South African government would be compelled to arrest Putin if he joined the talks in Johannesburg. Some observers say that, even without Putin’s arrest, the ICC’s warrant furthers Russia’s status as a global pariah. Around forty countries are discussing how to prosecute the crime of aggression allegedly committed by Russia against Ukraine, including the proposal for a special tribunal for that purpose. In March 2024, the ICC issued further arrest warrants for two Russian commanders for alleged war crimes committed against Ukrainian civilians.

Muammar al-Qaddafi. The Security Council referred the situation in Libya to the ICC in 2011, based on allegations that the Libyan leader and other individuals were responsible for the killing of unarmed civilians during Arab Spring protests. In June of that year the court issued arrest warrants for Qaddafi, as well as for his son and his brother-in-law, but he went into hiding and was killed before he could be apprehended. Qaddafi’s son, Saif al-Islam, remains a fugitive.

Omar al-Bashir. The first sitting president to be indicted by the ICC, Bashir is sought on allegations of genocide, crimes against humanity, and war crimes in Sudan’s Darfur region. He is accused of planning mass killings and deportations of members of several ethnic groups. Bashir avoided arrest by traveling abroad only with assurances from friendly foreign leaders that they would not turn him over. In April 2019, the Sudanese military ousted Bashir following months of anti-government protests and placed him under arrest. An ICC delegation visited the country in February 2021 to discuss cooperation with the transitional government, but it remains unclear whether Sudanese authorities will extradite Bashir.

Uhuru Kenyatta. In 2010, the ICC opened an investigation into violence that killed more than one thousand people following Kenya’s 2007 presidential election. It eventually named Kenyatta and five other major political figures as suspects of crimes against humanity. The investigation continued as Kenyatta won the presidency in 2013, with fellow ICC suspect William Ruto as his running mate. The court dropped the charges against Kenyatta the following year and those against Ruto in 2016, with the prosecutor’s office claiming that the Kenyan government was uncooperative and that witness tampering had undermined the case. In 2023, the ICC finally halted the thirteen-year investigation after failing to produce any convictions.

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has opened a digital platform to enable people to submit complaints online to the ICC with the option to add pictures and videos that show the crimes of the Israeli occupiers against them for the court to consider them and to take a stance against Israel. Those with information relevant to current events in Israel and Palestine are asked to provide submissions. Information submitted under this portal should relate to alleged crimes within the jurisdiction of the ICC, namely War Crimes, Crimes Against Humanity, Genocide, or Aggression.

Anyone can submit information through the portal. You do not necessarily need to be a victim or witness of the alleged crimes within the jurisdiction of the ICC listed above. Information can also be submitted collectively or through an organization (for example an NGO, your masjid, a church), as long as there is an identifiable sender.

A mere year after the violations, genocide had been woven into the official account of the history of Bangladesh. The preamble of the 1972 Collaborators (Special Tribunals) Order stated that “certain persons […] aided or abetted the Pakistan Armed forces of occupation in committing genocide and crimes against humanity”, and provided for special tribunals to try and punish them.

The July 2024 Student Demonstrations for the Quota System is the matter at hand to determine that genocide has taken place, and  we seek accountability for its perpetrators.

Sri Lanka

In July 2006 a Sri Lankan American expatriate organisation, the Sri Lankan Patriots, called on the Tamil Tigers to be prosecuted for using child soldiers.^[82] Some Tamils have also called for government members to be prosecuted before the court for an alleged attack on a girls’ school in LTTE-controlled territory in August 2006.

Sri Lanka is not a party to the court, and therefore would have to consent or be referred by the UN Security Council in order for the court to have jurisdiction.

Thailand

Former Senator Kraisak Choonhavan called in November 2006 for former premier Thaksin Shinawatra to be investigated for crimes against humanity connected to 2,500 alleged extrajudicial killings carried out in 2003 against suspected drug dealers. This would first require Thailand to ratify the court and to accept retrospective jurisdiction. In response, the Justice Minister, Charnchai Likhitjitta, said that ratification had been discussed by the cabinet but needed “careful deliberation” as any decision would affect all Thais.

Power is a double-edged sword that is present in every society. It could be defined as the capacity of controlling, persuading, enforcing, influencing, converting, modifying, or manipulating the actions, beliefs, or values of another person or a group of people. Ultimately, it is about creating a directional change which, in essence, makes power a very abstract phenomenon, obtaining shape only through its effects and symbols. The effects include any economic, political or social changes in the long or short term, achieved with or without the adoption of violent means; whereas, the symbols comprise of the Head of State, the Military Establishment, Religious Institutions, etc. Power could lead to subordination and violence, since on one hand, it could indeed promote the security and development of a community or an ethnic group under its ambit, while it could also threaten the identity and integrity of those very same groups if the State apparatus happens to be in discord with their values or beliefs.