Symposium on Bangladesh Genocide and International Law: The International Crimes Tribunal of Bangladesh and the Complementary System of Justice

The Editors of the Cambridge International Law Journal Blog endorses this statement by the Fellows of the Lauterpacht Centre for International Law condemning the aggression perpetrated by the Russian Federation against Ukraine. The events of the past month have sharply called our focus back to the acts of aggression taking place around the world. We condemn all abuses of international and humanitarian law and request that readers and contributors join the call by the Department of International and European Law at the National University of Kyiv Mohyla Academy for the international academic community “to raise their voices about the evils of war”. Please consider supporting the British Red Cross Ukraine Appeal and the UNHCR. Finally, the Ukrainian Institute, in London, has listed additional suggestions for people wishing to support Ukraine and Ukrainians.

On 18 July 1998, at the ‘Opening for Signature of the Convention on the Establishment of an International Criminal Court’, M Cherif Bassiouni claimed that the world would “never be the same”. But Bassiouni qualified that the ICC would “not bring all perpetrators of major crimes to justice”, only “some” of them. The answer to why the ICC would try ‘some’ as opposed to ‘all’ perpetrators of the most egregious crimes rests partly in practicalities (a central court pursuing all international crimes being deemed patently impossible) and partly in the principle of complementarity – the operative cornerstone of the set of beliefs that define the relationship between the ICC and national criminal jurisdictions and gives shape to one of the most important judicial mechanisms functioning to end impunity. The advent of complementarity set a framework where national criminal jurisdictions were given “primacy” over the ICC and shared a ‘symbiotic’ relationship based on mutual trust, dependency and cooperation. Within the framework of this ‘complementary’ relationship, the ICC may prosecute only when a national criminal jurisdiction is “unwilling or unable genuinely” to do so and is empowered to determine the ‘unwillingness’ and ‘inability’ of States to investigate and prosecute by considering the “principles of due process recognised by international law”. It is worth noting that Bangladesh is a State Party to the Rome Statute, and because of this, the International Crimes Tribunal of Bangladesh is very much a part of the complementary system of justice created by the Rome Statute.

While the Rome Statute does not explicitly impose an obligation on State Parties to enact laws at the national level enabling the investigation and prosecution of international crimes, Jann Kleffner offers compelling reasons to accept that such an ‘obligation’ is implied in the Preamble of the Rome Statute. In this blog post prepared for the symposium themed on “Bangladesh Genocide and International Law”, I shall show that the existence of this ‘implied’ obligation to enact comprehensive domestic legislation does not mean that States must replicate the standards of justice emanating from the Rome Statute in their national laws. To that end, I shall argue that the non-requirement to replicate ‘ICC standards of justice’ must be kept in mind when assessing the legality and legitimacy of the national courts fighting impunity – such as the International Crimes Tribunal of Bangladesh.

It is worth recalling that the ICC ‘complements’ national criminal jurisdictions and complementarity functions, among other reasons, to preserve and protect the notion of state sovereignty. During the UN Diplomatic Conference of Plenipotentiaries held in 1998, delegates addressed the proposed relationship between the ICC and national courts. There, the ICC was identified as one of the means of ensuring the end of impunity. James Crawford reiterated the important role of national courts in the struggle against impunity. He explained that within the complementary system of justice, the ICC “would be integrated with the existing system of international criminal cooperation” and that “it was not intended to displace existing national systems […] capable of working properly”.

In effect, the ICC was the culmination of efforts of a “diverse coalition of States from North and South”. The resulting Statutory text symbolised a merger of traditions from both ‘common’ and ‘civil’ systems of law. A state exerts its sovereign will by enacting its own set of applied and enforced laws within its legal system. Since complementarity confirms that the “primacy” to investigate, prosecute and punish the perpetrators of international crimes belongs to states with jurisdiction, it is unrealistic to expect that they will adopt an identical set of laws and procedures to accomplish this. This was acknowledged in the “Paper on some policy issues before the Office of the Prosecutor” in 2003, which read:

A major part of the external relations and outreach strategy of the Office of the Prosecutor will be to encourage and facilitate states to carry out their primary responsibility of investigating and prosecuting crimes. In any assessment of these efforts, the Office will take into consideration the need to respect the diversity of legal systems, traditions and cultures.

An often ignored trait of the Rome Statute is that it employs the phrase “for the purposes of” several times. This phrase purposefully exists to clarify that the standards of justice adopted for the purposes of the Statute are not necessarily meant to be applied beyond the proceedings of the ICC unless states use their sovereign will and incorporate them into their own national laws. Several other provisions reinforce this understanding. For example, according to the Preamble of the Rome Statute, “it is the duty of every state to exercise its jurisdiction over those responsible for international crimes”. This provision does not distinguish between states that had ratified the Rome Statute and states that had not and left room for the element of diversity in the laws governing national criminal jurisdictions irrespective of whether they belonged to states that are party to the Rome Statute. Also, Article 80 clarifies that the penalties of the ICC have no impact on “the application by states of penalties prescribed by their national law, nor the law of states which do not provide for penalties prescribed in the statute.”

In light of the above, national courts embracing diverse standards of justice in the fight against impunity is not particularly surprising. Having said that, this ‘embracement’ does not empower states to sacrifice the enforcement of due process norms “on the altar of state sovereignty”. In the admissibility challenge involving Abdullah Al-Senussi, the issue of how fair trial breaches within a national criminal jurisdiction affected the ICC’s assessment of ‘unwillingness’ was touched upon. In the judgment handed down following the appeal of Abdullah Al-Senussi against the admissibility decision of Pre-Trial Chamber I, the Appeals Chamber rejected the argument advocated by the Defence that if a State does not respect the fair trial rights of the accused per se, then that state must be found “unwilling genuinely to carry out investigation or prosecution”. However, the AC importantly clarified that there may be circumstances where violations of the rights of an accused in domestic proceedings are so “egregious” that they cannot be regarded as capable of providing “any genuine form of justice” to the accused, and as a consequence should be deemed “inconsistent with the intent to bring the person to justice”. Although the Appeals Chamber did not explicitly define what constitutes “egregious” violations of the accused’s rights, it did offer some guidance. For instance, judicial proceedings that are nothing more than a “predetermined prelude to an execution” would go against the “most basic understanding of justice”, necessitating intervention by the ICC. Therefore, the ICC, when assessing the ‘independence’, ‘impartiality’ and ‘manner’ of a national proceeding to determine the admissibility of that case, should be receptive to the “diversity of legal systems, traditions and cultures” but must ensure that “violations of the rights” of the accused that are of “egregious” nature do not take place in the name of ‘diversity’.

At the end of the day, states are bound by the confines of their constitutions, other laws and international obligations to guarantee that the judicial process functioning to end impunity is fair, impartial and independent. It is only natural that when a domestic court conducts an investigation or decides to prosecute, there will invariably be some tension while balancing the interests of state sovereignty, domestic standards of justice and the interests of the international community, which find expression in the “principles of due process recognised by international law”. These realities need to be kept in mind when assessing the legality and legitimacy of national courts fighting impunity – such as the International Crimes Tribunal of Bangladesh. Assessing the ‘quality’ of justice offered by national criminal jurisdictions in a manner that does not take into account the context within which that judicial system operates and fumbles in appreciating the rules of assessing the legality and legitimacy of domestic courts functioning within the ‘complementary’ system of justice, may end up shielding the culture of impunity. In fact, if ‘due process’ criticisms are allowed to weigh in at every level of a national trial, the possibility exists that the principle of complementarity will be perceived as a weak defender of state parties trying to prosecute their own.

Dr. M Sanjeeb Hossain is a Postdoctoral Fellow, Faculty of Law, Oslo University.