On March 23, 2010, Bangladesh ratified the Rome Statute of the International Criminal Court (ICC), making it the first South Asian State to do so and the 111th State Party to the ICC. Despite its commendable ratification, Bangladesh has failed to adopt legislation incorporating the crimes into domestic law. It has also failed to investigate credible allegations of the involvement of its own State Security Services in close to 1,300 extra-judicial killings, more than 400 enforced disappearances, the arbitrary arrest and detention of several thousand political opponents, and the systematic practice of torturing detainees.
Human rights organizations including Human Rights Watch and Amnesty International have repeatedly called on the government of Bangladesh to disband law enforcement and paramilitary units responsible for gross human rights violations and to bring the perpetrators to justice. Regrettably, it is an environment where Prime Minister Sheikh Hasina Wajed provides overt support through her incendiary and highly inflammatory remarks, such as “whatever stern measures are needed, take them without any hesitation; I give you the liberty.” Plus, her son, Sajeeb Ahmed Wazed, a senior government adviser, also helps to incite acts of violence against political opponents through his public comments. In December 2013, he said,“Let us also vow to wipe out their sympathizers and collaborators in Bangladesh once and for all…”
The prime minister, along with several senior ministers and cabinet members, the police commissioner, the director of the Rapid Action Battalion (RAB) and the Border Guards Bangladesh (BGB) are all in positions to effectively exercise control over or direct the political and police action in Bangladesh, but they have failed to do so.
It is quite clear that the alleged acts constitute crimes against humanity and fall within the jurisdiction of the ICC. But despite repeated calls to investigate domestically, it has failed to do so. It is therefore incumbent upon the ICC Prosecutor, Fatou Bensouda, to open a preliminary examination into the situation in Bangladesh as a matter of priority.
In determining the gravity threshold, the ICC Prosecutor will have to consider the scale, nature, manner of commission of the crimes and impact on the local community. The scale of the situation should be assessed both quantitatively and qualitatively, and by taking into account the number of direct and indirect victims, and the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, and their geographical or temporal spread (intensity of the crimes over a brief period vs low intensity violence over an extended period).
The underlying acts include increasing numbers of state killings, torture, deportation, imprisonment, persecution on political grounds, enforced disappearance and other inhumane acts. They have been committed through state machinery, including the police force, the RAB, the BGB and the judiciary.
A series of Skype conversations secretly recorded and published by the Wall Street Journal and The Economist in December 2012, demonstrated the level of government interference in the judicial system. Government speeches and rhetoric also show the abuse of power, and the organized policy to systematically repress the political opposition.
The impact of the crimes on the local community is significant. The acts of indiscriminate killings in response to large-scale civilian protests, the brutal torture of opposition leaders and critics, the imprisonment, trial and execution of senior political opponents are demonstrable of a flagrant denial of justice that have occurred with the aim or consequence of increasing the vulnerability of civilians and to spread terror among the civilian population. Moreover, the repression of the opposition has drastically enhanced social divisions and tensions, adding to the climate of fear and social unrest, and is likely to lead to long-term social damage.
In late 2014, Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, wrote to the government of Bangladesh, warning of the deteriorating human rights situation. He focused in particular on the International Crimes Tribunal (ICT), calling for a stay of two imminent executions in order to examine the trial process. His request came after UN High Commissioner for Human Rights Zeid Ra’Ad Al Hussein and the former U.S. Ambassador for Global Criminal Justice, Stephen Rapp, voiced their concern. There were numerous other statements from respected international jurists and parliamentarians and an independent report by the preeminent international legal expert Geoffrey Robertson QC, which called for the matter to be referred to the UN Security Council. The chorus of disapproval also included a senior member of the UK House of Lords, Lord Alex Carlile, a number of leading UN human rights experts and Special Rapporteurs, plus Human Rights Watch, Amnesty International and members of the U.S. Congress.
The ICT was established in 1973 as a national judicial mechanism with a view to putting on trial Pakistani military commanders responsible for international crimes (war crimes, crimes against humanity, genocide and torture) that were alleged to have been committed during the 1971 War of Liberation. It was established as a military tribunal under a lex specialis that removed the fundamental protections under the Constitution and national criminal procedure laws. It was re-enacted in 2009 as a civilian court to put on trial civilian and military leaders. The suggestion therefore, was that all credible allegations of murder, willful killing, rape etc. would be dealt with accordingly. It quickly transpired however, that it would only be those offenses alleged to have been committed by those who supported Pakistan, and therefore opposed to independence, that would be considered, with those who fought for independence being labelled freedom fighters, and therefore immune from prosecution, despite there being credible allegations against both sides. The ICT therefore adopted a position of ‘victor’s justice’ and thereby immediately putting it at odds with other tribunals, such as the ICC.
The various statements critical of the ICT shared a common theme: disappointment and rejection. That Bangladesh had experienced one of the worst conflicts in modern history was never in dispute. It was deeply regrettable that the international community had done nothing for more than four decades following the bloody birth of Bangladesh. Neither was it in dispute that there was a critical need to establish an effective mechanism to hold those perpetrators accountable through a credible judicial process, which would lead towards a process of reconciliation. Regrettably, the process established under the reign of Wajed is neither credible nor aimed at justice. It is widely considered a tool of vengeance used to dismantle a political opposition.
The response to such criticism from Bangladesh was to dismiss it. But Leahy has continued to track the situation and speak out. On Oct. 23, Leahy said, “[like] the inquiries and appeals of others, my concerns have repeatedly been responded to by Bangladeshi officials with denials, obfuscation, and falsehoods … it is beyond a doubt that the rule of law is often violated by Bangladeshi law enforcement agencies. This conduct has become so ingrained that it is not an overstatement to describe Prime Minister Wajed’s government as one that condones state-sponsored criminality.”
The significance of this cannot be underestimated as it goes so far beyond comments that highlight ‘concern’ or ‘worry,’ that one may associate with parliamentarians. The Bangladesh Government now stands directly accused of criminality by a longstanding U.S. senator with a commitment to human rights and fundamental freedoms, and one who cannot be said to be serving any interest other than that of respect for the rule of law. It is of further significance when one considers the position Leahy holds as the minority ranking member on the Senate Appropriations Committee and his statement that he will not support assistance to Bangladesh for those institutions involved in human rights abuses.
The use of the expression “state-sponsored criminality” to describe the grave and continuous human rights violations in Bangladesh is not only thought-provoking, but also legally relevant. Article 7 of the Rome Statute describes crimes against humanity as a series of acts committed as “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”
In international criminal law, it is widely considered that the key element of this crime —and the most difficult to prove— is, the planned or otherwise systematic or widespread character of the attack. The adoption of the term “state-sponsored criminality” indicates that certain patterns of violence have been identified to prove the existence of a pre-conceived and a fully intentional crackdown against the civilian population, and more particularly, dissenters and political opponents, by the highest spheres of the official political power in the country.
The position adopted by Bangladesh is to view any opponents, as ‘enemies of the State’ and therefore, anti-Liberation, or against the country’s independence. What began as simple rhetoric against opponents however, has since developed into a state policy of persecution, hence the expression adopted by Leahy as “state-sponsored criminality”.
Despite such clear evidence, the international community on the whole has thus far been unwilling to act. The question therefore is what can be done? I believe, now is the time for the ICC Prosecutor to open a Preliminary Examination. In tandem, States ought to consider whether they should continue to associate with a dictatorial regime that oppresses its own people.
It has been recorded, through credible human rights monitors such as Human Rights Watch and Amnesty International, that approximately 500 civilians have lost their lives as a result of violent clashes with security forces during the last parliamentary elections held in 2014. These elections were boycotted by many opposition parties given their fears that any election would be neither free nor fair. The former UN High Commissioner, Navi Pillay, warned during this time that the election violence was within the jurisdiction of the ICC. Regardless, despite the high degree of violence, and the fact that the coalition of political opposition parties chose not to participate due to real concern over the lack of transparency, elections took place. The Awami League, headed by Prime Minister Wajed, won an overwhelming majority of parliamentary seats. The international community condemned the election as not being free and fair and not representative of the will of the people, but the result remained unchallenged and the Awami League is likely to call the next parliamentary election in March 2018.
The violent repression of the political opposition has only gotten worse since then. Human rights groups reported more than 425 extrajudicial executions between 2014 and 2016. The first anniversary of the elections was marked by 150 additional deaths, 4,500 injuries and over 10,000 political arrests. Attacks from security forces have continued, and just in 2016, more than 100 citizens died and over 5,000 were injured in more episodes of electoral violence.
The evidence clearly points to the commission of Crimes Against Humanity, and thus, as espoused above, there is a credible basis for the ICC opening a Preliminary Examination.
Through political arrests, as well as the widespread use of torture and enforced disappearances, the Awami League Government has installed an atmosphere of fear and intimidation that has shrunk the space for civil society, as the EU-Bangladesh Sub-Group on Good Governance and Human Rights noted in a public statement of December 2016. As a matter of fact, after an exhaustive analysis of primary sources and of the work of local NGOs in Bangladesh, in July 2017, Human Rights Watch published an 83-page report documenting 90 cases of forced disappearances in 2016 alone. This shocking figure forms part of what the organization called the “long history of human rights violations” committed by Bangladesh law enforcement agencies. Since the Awami League came to power in 2009, there have been more than 320 reports of forced disappearances in Bangladesh.
Disappearances have particularly targeted political opponents and even members of their families. Three sons of the political opponents condemned, sentenced and executed by the universally condemned ICT were abducted by law enforcement agents in the summer of 2016. In spite of numerous calls by the United Nations Working Group on Enforced or Involuntary Disappearances to investigate the allegations and clarify their fate, one of the three men was dumped outside his family home after months of being held incommunicado and the whereabouts of the other two remain unknown. In his recent statement, Leahy spoke to this situation. He echoed the words of the State Department, which in its last country report on Bangladesh noted that the UN had contacted the government of Bangladesh concerning the ‘‘reportedly alarming rise of the number of cases of enforced disappearances in the country’’ and had 34 outstanding cases under review. However, the UN has yet to receive a response.
The Government Response
Worryingly, despite the gravity of the situation portrayed by these numbers and ample evidence demonstrating the intervention of the security forces in the crimes committed, silence and denial have been the de facto response of Bangladesh. Far from investigating these reports and punishing perpetrators, violations of human rights by law enforcement agents have been met with complete impunity. This impunity, which could be also considered a good indication of official acquiescence, constitutes a violation of the Rule of Law and a threat “to democracy itself,” as noted by Leahy.
For instance, after the publication of the Human Rights Watch report last summer, the Awami League, accused the organization of being “one-sided” and “biased,” even though the report noted that Bangladeshi authorities had failed to “respond to letters that Human Rights Watch submitted in April 2017 requesting information about the specific cases documented.” Meanwhile, Home Minister Asaduzzaman Khan denied the practice of enforced disappearances in Bangladesh, maintaining that victims were hiding willingly, and described security agents who commit human rights violations as “overenthusiastic security personnel who acted on their own.” After all, disappeared bodies leave no traces, no testimonies and no evidence.
Leahy has and complained that all of his inquiries have been met with “blanket denials, obfuscation, and even falsehoods.” During the last few years, Bangladeshi authorities have constantly manipulated narratives to justify violent repression and violations of the rights of citizens. They use the veil of legitimacy provided by law to justify arbitrary executions by the ICT, and manipulate counter-terrorism discourses to criminalize democratic rights. In this vein, members of one of the main political parties in the opposition, Jamaat-e-Islami, are usually portrayed as extremist to justify their arbitrary detention. In the summer of 2016, more than 10,000 individuals—the majority members of the opposition—were arbitrarily arrested as part of an alleged ‘counter-terrorist’ strategy.
The government of Bangladesh therefore has shown itself to be unwilling to address the ongoing human rights crisis in the country and is content to further the ongoing impunity by way of blanket denial.
More concerningly however, Bangladesh has shown itself to be not only willing to obfuscate domestically, but, it is now willing to at best manipulate the position internationally, and at worst, recount blatant falsehoods.
One of the most egregious examples of this manipulation occurred in June 2017, when following a meeting with ICC representatives, several news organizations published that —according to a press release of the Supreme Court of Bangladesh— ICC representatives had expressed “satisfaction over the proceedings of war crimes trials in Bangladesh” and suggested that the International Crimes Tribunal of Bangladesh (ICT) “will play an important role in development of overall judicial system in the national level”. A week later, the ICC had to publish an official statement correcting these misleading reports and clarifying that “neither the President nor the Deputy Prosecutor expressed any opinion whatsoever about proceedings being conducted before the International Crimes Tribunal of Bangladesh (“ICT”) or any other national court proceedings.” Bangladeshi authorities had wilfully attempted to manipulate the ICC to falsely legitimise its domestic tribunal, the ICT, and misrepresent the position of the international community.
The Response of the International Community
The international community has strongly condemned the behavior of Bangladesh and its security forces. Numerous statements —including letters addressed to Wajed, communications by UN Special Rapporteurs, and even resolutions from the European Parliament— have been issued in the last few years urging Bangladesh authorities to put an end to the human rights violations.
On Dec. 20, 2016, the EU-Bangladesh Sub-Group on Good Governance published a statement expressing concern over extrajudicial killings and enforced disappearances, the death penalty, freedom of association and freedom of expression, and thus encouraging Bangladesh to form “an independent, impartial, non-partisan and highly-qualified Election Commission to hold the next general elections in a fully participatory way.”
Still, most initiatives from the international community have been limited to mere statements of concern or condemnation since no formal sanctions have been imposed. While most Western democracies, as well as the European Union, have vowed to protect the rights of all citizens, and included human rights clauses in their cooperation agreements, in the case of Bangladesh, the international community has constantly failed to enforced these clauses and maintained a dishonest stance at the expense of the citizens of Bangladesh. Leahy announced that he would not support further U.S. assistance for Bangladesh law enforcement agencies “until the necessary steps are taken,” but on July 13, the EU-Bangladesh Joint Commission published a statement announcing the continuation of the development cooperation agenda for 2018 to 2020, and mostly avoided the topic of human rights. This is in stark contrast to their previous stance on the situation. Seven months earlier, the EU was raising concerns over the extrajudicial killings and forced disappearances that were taking place. It is clear that the EU must take the protection of human rights and fundamental freedoms seriously and place it at the forefront of discussions with States that are recipients of its aid.
Regrettably, as the international community fails to act, the crackdown continues. Seven of the most senior members of Bangladesh Jamaat-e-Islami were arrested last month in Dhaka while holding a meeting. The charge was that they had held a clandestine meeting and had plotted to overthrow the government. Considering that they are a political party one might reasonably ask why holding a political meeting is not permitted, and secondly, as there is an upcoming election, it might be reasonable to suggest that unseating the government was its responsibility. This action —the last one in the litany of violations of human rights perpetrated by the Bangladesh security forces— left the political party leaderless and further confirmed the relentless campaign of tyranny against any political opposition.
The “state-sponsored criminality” in Bangladesh, as described by Leahy in his October statement, has exposed not only the repression and violence at the hands of the government, but also a lesson in the hypocrisy by the international community whose wilful blindness to the gravity of the situation has signalled an unparalleled spiral of autocracy. As Leahy, and other vocal critics have articulated, Bangladesh, under the current Awami League government, is not a democracy and does not exhibit the characteristics of a State based on the rule of law, human rights and fundamental freedoms. It operates in an atmosphere of fear and intimidation and epitomises the label of “state-sponsored criminality.”