THE ICC AND OUR POLITICS

SHAH ALI FARHAD

How an international court is being ‘used’ to score political points in here

No, this is not an article on the correlation of politics and cricket vis-à-vis the International Cricket Council. I apologise in advance to anyone who might get that misleading impression from the title. Far from that, the subject matter of my article is actually, how an international court in Hague, Netherlands is being “used” by known players in UK and US to score political points here, in Dhaka, Bangladesh.

On February 4, 9 Bedford Row (a barristers’ chambers in the UK) filed a communication with Fatou Bensouda, the prosecutor of the International Criminal Court (ICC), in accordance with Article 15 of the Rome Statute of the ICC.

The communication asks the prosecutor to open a preliminary inquiry into alleged human rights violations by the current Bangladesh government against opposition activists belonging to Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami Bangladesh (Jamaat).

The time frames which has been suggested include February 2013 onwards generally, and particularly the period of unrest surrounding the Dhaka siege programme by Hefazat-e-Islam in the first week of May 2013 and the weeks preceding and following the January 5 elections.

The communication alleges that the government, represented by the Prime Minister Sheikh Hasina, her son Sajeeb Wazed and other high ranking officials of the current administration have been involved in the systematic repression of the opposition in several districts of Bangladesh within a span of about a year.

It alleges that this was achieved through murder, torture, forced disappearances, arbitrary imprisonment, persecution and other inhumane acts on the opposition activists using state machineries like the police, Rapid Action Battalion (RAB), Border Guards Bangladesh (BGB), and the judiciary.

However, before going to the merit and substance of the allegations, it is perhaps best to first refresh our memories regarding the parties involved. 9 Bedford Row is instructed in this matter by a human rights organisation called the International Coalition for Freedoms and Rights (ICFR).

Interestingly, 9 Bedford Row has since October 2010 also provided legal assistance to those leaders of Jamaat and BNP who stand accused or convicted of genocide, war crimes, and crimes against humanity by the International Crimes Tribunal Bangladesh (ICT-BD). One of the key members of that defence team is a barrister named Toby Cadman. Apart from being a foreign counsel for Jamaat leaders like Nizami, he is also seen speaking on behalf of other convicted war criminals like UK-based Chowdhury Mueenuddin and Salauddin Quader Chowdhury of BNP.

In addition, Mr Cadman is also the founder of TMC Advisory Group, an international consultancy (lobbying) firm which claims to have the capacity to influence decisions in “Downing Street, Brussels, Geneva and the White House.” Thus, the human rights activist-cum-counsel is also an international lobbyist.

If you are finding the combination of a lobbyist, activist and barrister strange, then you should know that I did too, and questioned it on a previous occasion as well (“Toby Cadman: A Crusader for Rights or Devil’s Advocate?” bdnews24, Dec 3, 2012).

It is of course, not a crime for a counselor or activist to be simultaneously a lobbyist as well. However, questions regarding his motivations can naturally arise though, and quite justifiably so, since the nexus and potential for conflict is too obvious to overlook.

Now that we are clear about the lawyers and their background, let us turn our attention to the client instructing the said communication, that is, the ICFR. ICFR was formed in Istanbul, Turkey in 2013 after a military coup removed Egypt’s former Islamist president Mohammed Morsi from office.

According to the Washington Post, the organisation is closely associated with Islamist legal efforts to prosecute the coup leaders (“Islamic Rights Group: Investigate Bangladesh,” Feb 4, 2014). If anyone even gives a cursory glance to the website of the group (www.icfr.info), one would find substance in what was stated in the Washington Post article.

The site is dedicated entirely to discussions, reports, evidences and statements on behalf of Muslim Brotherhood. Their members not only include internationally known Brotherhood sympathisers and apologists, but most importantly, Toby Cadman himself. Thus, the instructed is also the instructor in this particular instance. Even more reasons to feel suspicious about the potential for conflict here.

As for the merit of the allegations, assuming that Cadman et al are acting on the basis of information and evidence provided by Jamaat and/or BNP, then there is a very good chance that factually the allegations are either outright false, or at the very least, exaggerated, given Jamaat and BNP’s very poor record when it comes to figures of oppression and/or repression.

For example, according to Khaleda Zia’s public assertions made on February 4, between December 26, 2013 and January 27, 152 opposition activists were killed in nine specific districts at the hands of the law enforcers.

However, investigation in this regard by the The Daily Star (from sources such as the BNP itself, police records and media reports) revealed that only 17 people had been killed during that timeframe in those nine districts.

By the same token, while the communication itself specifically refers to the security operation conducted in the early hours of May 6, 2013, and cites Human Rights Watch (HRW)’s calls for investigation in this regard, it conveniently fails to point out that in that very report (“Blood on the Streets,” Aug 2013), HRW itself conceded that the opposition and Hefazat-e-Islam’s claims of genocide, massacre, etc were baseless and unsupported by evidence.

The communication made an incorrect assertion about the ICT-BD and its founding legislation, the International Crimes (Tribunals) Act 1973 (as amended). It stated that the ICT-BD “has been determined to be in breach of international law on a number of occasions.” This is likely to give the impression that an authoritative body has legally ruled upon the validity of certain actions and/or legal provisions of the ICT-BD as being contrary to international law.

In reality nothing of that sort has ever happened. In fact, the UN, US, Britain, the European parliament and many others have all lauded the achievements made so far by the ICT-BD. The biggest critics of the trials have actually been Mr Cadman and his associates, their clients, and the clients’ national and international associates.

Interestingly, it is only those countries with which both Mr Cadman and the ICFR share such close proximity that openly took a hostile position vis-a-vis these trials, viz Egypt under Morsi and Turkey under Erdogan. As I stated above in another context, the nexus is too visible to overlook.

There are also reasonable grounds to view the other critics with suspicion as those, who want to see the trials derailed, haven’t even spared hiring million-dollar lobbyists in US for attacking Bangladesh’s trial process.

Now, one can have his/her doubts about the standards prevailing at the ICT-BD. But one also has to concede that with such a coordinated and well-funded international campaign being run against these trials, it has become increasingly difficult to distinguish between suggestions and/or criticisms that are genuinely motivated, and those which are induced and/or influenced by partisan interests or lobbying.

Thus, in short, what we have here is BNP-Jamaat’s foreign counsel acting on behalf of the Brotherhood aligned ICFR, talking about the arguable human rights record of the Bangladesh government, while at the same time completely ignoring the gross and wholesale human rights violations which the apolitical people of Bangladesh suffered at the hands of his clients, that is, Jamaat and BNP, in the very time frame suggested in the communication (February 2013 onwards, and most particularly the weeks preceding and following the January 5 elections).

Hence, it is my opinion that it would be naivety of the highest order if anyone even entertains the thought that these people are genuinely concerned about the human rights situation in Bangladesh. They clearly are not. They are professional lobbyists who have been paid (quite handsomely presumably) by their clients to go about the business of discrediting the Bangladesh government in general, and the ICT-BD in particular, at international forums.

When the communication asks the ICC to investigate the sentences handed down by the ICT-BD, it shows the complainant’s utter disconnect with the national perception of Bangladeshis in this regard. Even amidst the rapidly changing political landscape of Bangladesh, the only constant over the last few years has been the overwhelming public support that the ICT-BD enjoys.

Even the latest opinion poll conducted in January 2014 by Dhaka Tribune revealed that 74% respondents were either “satisfied” or “highly satisfied” with the ICT-BD trials.

Moreover, even if one legitimate complaint deserves to be made to the ICC for human rights violations in Bangladesh from recent times, it will have to be the extreme form of political violence unleashed by Jamaat and its student organisation Shibir, following the ICT-BD verdicts from February 2013 onwards, a trend which was subsequently adopted by BNP in their failed lengthy campaign for reinstating the caretaker government.

Religious minorities have been targeted, attacked, raped and killed. Awami League supporters have had their tendons slit, their houses torched; ordinary people, going about daily lives, were set ablaze along with their vehicles. Vandalism, arson and Molotov bombs terrorised the streets. Even young children were not spared. Railways were sabotaged; tracks uprooted; fish plates removed. Roads dug up to cut off communications. A perpetual physical siege persisted during that period.

A human rights complaint that does not take into account the foregoing is anything but a genuine complaint on behalf of the Bangladeshi people. And hence, I term it “vexatious and frivolous.” Not only does it fail to take into account the real violations, it purports to put the potential offenders in the place of the victims. That is preposterous.

The frivolous and vexatious nature of this particular complaint is also apparent from the very much ill-motivated inclusion of Sajeeb Wazed’s name in the said communication. Those who follow the politics of Bangladesh are well aware that Sajeeb Wazed is not, in any manner or mode, involved with law enforcement or security issues of Bangladesh.

He discharges his functions as the IT adviser to the PM and has been involved with the party’s publicity and campaign matters only, that too in recent times. The communication referred to a facebook post of Sajeeb Wazed which, according to the complainants, resulted in numerous members of the opposition being killed in the days following the statement.

If anyone has actually seen the post complained of, they would know that it simply dealt with Sajeeb Wazed’s personal outrage and frustration at the resolution that was adopted by the Pakistan National Assembly following the execution of convicted war criminal Abdul Quader Molla, and certainly nothing of the sort suggested in the communication (https://www.facebook.com/sajeeb.a.wazed/posts/385431671593262).

So, what happens now legally? According to Article 15 of the Rome Statute, in order to assess whether to initiate investigations, the prosecutor shall analyse the seriousness of the information received. In order to make this determination, he/she may seek additional information from states, UN organs, NGOs or other reliable sources that he/she deems appropriate.

If he/she concludes that there is “a reasonable basis” to proceed with an investigation, a request for authorisation of a formal investigation is made to the Pre-Trial Chamber of ICC, along with any supporting material collected. If, however, the conclusion is that the information provided does not constitute “a reasonable basis,” that will usually be the end of the matter.

Pursuant to Article 53, in order to determine whether there is “a reasonable basis,” the prosecutor considers: first, the jurisdiction of the court (including temporal, material, and either territorial or personal jurisdiction); second, admissibility issues (including “complementarity” and assessing gravity of the alleged violations); and lastly, the interests of justice.

It should be noted that Article 17(a) of the Rome Statute provides that a case will be inadmissible where it is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.

There are no reasonable grounds to speculate that the state of Bangladesh is unwilling or unable to genuinely carry out investigation or prosecution into the rights violations complained of. To the best of my knowledge, no such indication has ever been expressed or implied on the part of the current government.

By the same token, it can also be argued that the scale of the violations alleged is most likely not of “sufficient gravity” meriting involvement of the ICC pursuant to Article 17(d). This requires an assessment of the groups of persons or individuals likely to form the object of the prosecutor’s investigations, the nature of the crimes alleged, and their modus operandi through a qualitative and quantitative approach.

One must also remember that there is no formal requirement for such communications and anyone can send a communication to the prosecutor, for instance, simply by writing a letter, or by sending an email or a fax. By 2013, a total of 10,470 such “communications” were received by the prosecutor.

This is not, however, the first time that “communication” has deliberately been used against the Bangladesh government. For example, a similar complaint was filed against the Prime Minister Sheikh Hasina, and four other members of her government, on January 31, 2012 by some pro-Jamaat expatriate Bangladeshis residing in Britain.

On June 27, 2013, another complaint was sent to the ICC by a US law firm on behalf of two virtually unknown US-based human rights organisation against Prime Minister Sheikh Hasina and 24 other members of her government for alleged “widespread human rights violations.”

Needless to say, the prosecutor of ICC has still found no “reasonable basis” to proceed any further than the initial complaint in all of these instances. And most likely, the same fate will befall the complaint made on February 4 as well.

However, whatever the outcome, one thing is certain already; any such complaint is in itself bad publicity for the state in question. Something the complainants are well aware and taking full advantage of.

However, what these “complainants” are failing to see is that their quest of causing embarrassment to the Bangladesh government by way of vexatious complaints to the ICC, is only succeeding in permanently tarnishing the image of the entire nation in front of the world stage.

Additionally, they are forgetting that their conduct is tantamount to abuse of an important international judicial mechanism.

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The author is a barrister, academic, writer and a member of International Crimes Strategy Forum (ICSF) 

FEBRUARY 18, 2014