Global Policy Forum

Harun ur Rashid *

The Statute of Rome is based on respect for human rights and fundamental freedoms. Its purpose is to enforce law on an individual who grossly violates human rights. Bangladesh had been a scene of international crimes in 1971 by Pakistani soldiers. Had there been a permanent International Criminal Court, the 195 Pakistani military officers who were accused of their alleged commission of international crimes would not have gone unpunished.

The setting up of permanent International Court came into reality when on 11 April last, 60th instrument of ratification of the Statute of Rome of 1998 was deposited with the UN. a necessary condition for its existence. The UN, Secretary General called the setting up of the Court as " a giant step forward in the rule of law that a few years ago nobody would have thought possible." The need for setting up a permanent Court was felt as a deterrent for horrendous crimes perpetrated on individuals by despots and dictators on their nationals during peace and civil war situations.

The Rome Statute was adopted and signed by 120 countries in 1998 after a five-week long conference in Rome. Only a few countries did not sign it (China, Algeria, Libya, Israel, the US and Yemen). The Clinton administration later decided to sign the Statute but this month the Bush administration withdrew its "signing" from it, much to the disappointment of many countries.

The Court will come into being on July 1, 2002. The first assembly of States which ratified the Statute will be convened in September to elect 18 judges who will sit on the bench at The Hague. It will fill a void in not being able to put on trial many leaders responsible for gross atrocities, often against civilian population. They escaped from trial because there was no permanent International Criminal Court.

The idea of a permanent International Criminal Court is not new. In the aftermath of the Second World War, the Nuremberg and Tokyo Criminal Tribunals were established in 1946 to try top German and Japanese war leaders of committing the most heinous international crimes, such as genocide, crimes against humanity and war crimes. The Tribunals found many of them guilty and they were executed.

Traditionally, individuals were considered as "objects" and States were "subjects" consequently of international law. This implied that individuals could hide themselves under the "veil of States". Since individuals were treated as citizens of a State, only States could put them on trial. That position was changed by the judgments of the Tribunals.

The Tribunals had laid down a very important principle of international law when it held that " Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced". Simply put, the arm of international law will extend to those individuals who are responsible for international crimes. In other words, individuals are to be treated as "subjects" under international law and that those individual persons are accountable and stand trial under international law.

International crimes fall under the 'universality principle', meaning that they are so repugnant to humankind that every State can arrest and prosecute those accused or extradite them to another State for putting them on trial. This means that any State can arrest an individual even if that person is not its citizen or if the scene of such crimes does not fall within its territory.

The arrest of former President Pinochet of Chile (1973-90) in Britain in 1998 on a request of extradition from Spain was an instance in point. At present development of humanitarian law has reached a point that no dictator will be safe enough from clutches of law when he travels to a third country. The joke that 'if a person kills another goes to jail but if he kills 20,000 he goes to Geneva for peace negotiations' is outdated in the context of advances in international law.

Enforcement of humanitarian law is getting stronger day by day. At the dawn of this 21st century, there is an opportunity to bring to justice persons who are accused of committing international crimes. The UN Security Council set up in 1993 and 1994 two Adhoc Criminal Tribunals -- one at The Hague to deal with atrocities in Bosnia and Kosovo and the other in Arusha (Tanzania) to try accused persons of genocide of Hutu and Tutsi tribes in Rwanda. Once the trials are over the tribunals will disappear. That is why the establishment of a permanent International Criminal Court is seen as a milestone in the development of international humanitarian law.

Court's jurisdiction

The Court works on the principle of complementarity devised to preserve sovereignty of States. This means it is a Court of last resort. It will only operate where a state is unwilling or unable to put on trial persons alleged to have committed international crimes. It is a safety net for the failure of national legal systems. The prosecutor of the Court will be subject to controls and will have to seek approval from a chamber of three judges for investigations and prosecutions. This mechanism has been provided to ensure that there exists a sound legal basis for proceeding with investigation and to avoid politically motivated prosecutions. The decisions of the chamber of the Court are also subject to appeal to another chamber of the Court.

The Court will have jurisdiction over persons only when an alleged international crime is committed by a citizen of a ratifying country or if a crime occurs in the territory of a ratifying country. However, the UN Security Council is empowered to refer a situation to the Court if a country does not hold trial for the accused persons. The powers are reasonable and reflect well-established principles of international law. The Court will be able to put on trial the accused for crimes committed after July 2002. The jurisdiction has not been made retrospective.

Bangladesh's suggested position

Bangladesh has a deep commitment to the rule of law and to democratic principles under the 1972 Constitution. Furthermore, the legal and judicial systems in the country are well established, just and fair and independent of the executive.

Article 25 of the Constitution stipulates that "the State shall base its international relations on the principles of......respect for international law and the principles enunciated in the UN Charter." This may be interpreted to mean that Bangladesh is bound by both customary and conventional rules of international law and by the principles described in Article 1 of the UN Charter. Among the principles enumerated in Article 1, promotion of respect for human rights and fundamental freedoms for all has been included.

The Statute of Rome is based on respect for human rights and fundamental freedoms. Its purpose is to enforce law on an individual who grossly violates human rights. Bangladesh had been a scene of international crimes in 1971 by Pakistani soldiers. Had there been a permanent International Criminal Court, the 195 Pakistani military officers who were accused of their alleged commission of international crimes would not have gone unpunished.

It is desirable that Bangladesh may consider ratifying the Statute of Rome before 1st July, if not already done. Some benefits could flow to Bangladesh for its ratification. First, Bangladesh can put forward a candidate to the Court as a judge because only ratifying countries are entitled to nominate a candidate. It will be able to participate in the deliberation of the procedures and rules of the Court. Second, Bangladesh will be seen as a party dedicated to upholding principles of international humanitarian law. Third, Bangladesh will have the primary jurisdiction to bring to justice in the country under Bangladesh laws and within the existing system any person who commits international crimes within Bangladesh or any Bangladeshi national who may commit such crimes elsewhere. Finally, Bangladesh will retain an effective "watching brief" over the activities of the International Criminal Court.

*Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.

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