Guernica 37 Launches Pro Bono Initiative to Collect and Present Evidence to the ICC Prosecutor in The Hague
For the past twelve months Guernica 37 has been working with elements of civil society in Bangladesh and the diaspora to document serious human rights violations and state involvement in the targeting of the civilian population. This builds upon a previous communication submitted to the ICC Prosecutor in 2014.
Bangladesh became a State Party to the Rome Treaty of the International Criminal Court (ICC) on 23 March 2010. Accordingly, the ICC has jurisdiction to try those alleged to have committed crimes in the territory of Bangladesh or those individuals who are alleged to have committed crimes who are citizens of Bangladesh. In the present case the crimes alleged to have been committed fall within the territorial and personal jurisdiction as those individuals are alleged to have committed the crimes are nationals of the People’s Republic of Bangladesh and the crimes are alleged to have been committed on the territory.
It is submitted that senior members, present and former, of the Awami League Government, including senior ministers and cabinet members, Directorate General of Forces Intelligence (DGFI"), Rapid Action Battalion (“RAB”), National Security Intelligence ("NSI"), National Telecommunications Center ("NTMC"), Police Commissioner(s), Bangladesh Police (BP"), Bangladesh Detective Branch ("DB"), and the Border Guards Bangladesh (“BGB”) were persons in positions to effectively exercise control over or direct the political and police action in Bangladesh.
It is submitted that there is a reasonable basis to proceed with an investigation under Article 53(1)(a) – (c). The ICC has jurisdiction (temporal, material, and territorial). The identified set of incidents, individuals and proposed charges indicates, based on the information available, that the potential evidence that would likely arise from an investigation into the situation by the ICC would be admissible under Article 17 of the Rome Statute. The situation is admissible under the principle of complementarity.
It will be requested that the ICC Office of the Prosecutor, when analysing the seriousness of the information received, seeks additional information under Article 15(2). This is particularly important, given the restrictions in place on the media and independent reporting in Bangladesh and the absolute refusal on the part of the Government of Bangladesh to initiate an investigation in relation to the matters alleged. It is further noted that there is no currently no suitable legislation in force in Bangladesh that would enable compliance with the principle of complementarity at the national level.
The request to open a preliminary examination will focus on arbitrary arrests, torture in police custody, extra-judicial killings, enforced disappearances, all crimes within the jurisdiction. It is alleged that this constitutes a widespread or systematic attack on the civilian population, and is part of a state policy, thereby amounting to crimes against humanity.
It has been well-documented that the Awami League Government has adopted aggressive and hard-handed tactics in an effort to crackdown on those who were involved in anti-government protests. It did so by deploying Special Forces units, which include the Directorate General of Forces Intelligence (DGFI"), Rapid Action Battalion (“RAB”), National Security Intelligence ("NSI"), National Telecommunications Center ("NTMC"), Police Commissioner(s), Bangladesh Police (BP"), Bangladesh Detective Branch ("DB"), and the Border Guards Bangladesh (“BGB”) (together, hereinafter: “Government Special Forces”). The Government Special Forces receive orders from and are under the control of the Awami League Government. It is submitted that it is the Government Special Forces which are responsible for hundreds of disappearances, running secret intelligence-led prisons, employing torture on an industrial scale, and extra-judicial killings, as a result of deliberately targeting leaders of the anti-government protests using excessive and unlawful lethal force.
Since the Awami League came into power in January 2009, Government Special Forces have been committing crimes against humanity with complete impuntiy through acts of torture upon civilian supporters of opposition parties, in violation of Article 7(1)(f) of the Rome Statute.
The Office of the Prosecutor should, when analysing the seriousness of the information received, exercise its discretion under Article 15(2) of the Rome Statute of the ICC to seek additional information from States, organs of the United Nations, intergovernmental organisations, or other reliable sources that are deemed appropriate, and to receive written or oral testimony at the seat of the Court.
It is submitted that the exercise of the Prosecutor’s discretion under Article 15(2) is essential to enable the Prosecutor to effectively analyse the seriousness of the situation in Bangladesh. This is because there has been no investigation into the events by the Bangladeshi authorities, despite calls to do so by, for example, the UN Special Rapporteur on Extrajudicial Executions, and from the Asian Human Rights Commission, Amnesty International, Human Rights Watch and Odhikar.
In terms of the evaluation of the “gravity” situation, it is noted that the Awami League Government has systematically and systemically sought to increasingly repress opposition to its rule, through murder, torture, forced disappearances arbitrary imprisonment, persecution and other inhumane acts. 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 or low intensity violence over an extended period).
The violent repression of protests and demonstrations by indiscriminate and excessive police force is evidence of the increased intensity of the crimes over a relatively brief period. There are no exact numbers of deaths during recent protests as independent reporting has been restricted. The use of lethal force has taken place in multiple locations. There has been no official investigation into these state killings, disappearances and other injuries. Moreover, it is submitted that the number of indirect victims is extremely high. The systematic and systemic repression and persecution of opposition to the Awami League's rule has led to widespread fear for safety and security, and distrust in ability of the instruments of state to provide security and justice.
The Government and its state apparatus, needs to be reminded that as a State Party to the Rome Statute of the International Criminal Court its actions fall within the jurisdiction of the International Criminal Court and its political leaders, whether in government or opposition, could be charged with election violence.
It is clear that crimes have been committed on the territory of Bangladesh on a massive scale. It is clear that the crimes have been committed on a widespread or systematic basis, against the civilian population in furtherance of a State Policy.
In order to work alongside civil society in documenting such human rights abuses, Guernica 37 is launching a platform JUSTICE FOR BANGLADESH to collect and present evidence to the ICC Prosecutor.
The link for the platform is here