The Prospects of Prosecuting Rohingya Deportation before the International Crimes Tribunal, Bangladesh (ICT-BD)

[Quazi Omar Foysal is a Lecturer in Law at American International University-Bangladesh (AIUB).]

Introduction

The atrocity crimes allegedly committed against Rohingyas in Myanmar have attracted unprecedented efforts to ensure justice and accountability at international and domestic levels. These efforts include but not limited to International Criminal Court (ICC), International Court of Justice (ICJ), two UN Human Rights Council bodies, an Argentine universal jurisdiction case, and several so-called military trials in Myanmar. Very recently, a group of victims submitted an unsuccessful request to the ICC asking for the arrangement of the ICC hearing within proximity to the victims or arguably in Cox’s Bazar, Bangladesh. Surprisingly, the prospect of prosecution of these crimes before the Bangladeshi judicial forums failed to attract any serious attention to the date.

According to the ICC Pre-Trial Chamber’s authorisation decision, the ICC is exercising its territorial jurisdiction over this situation only due to the fact that a part of conduct was arguably committed on the territory of Bangladesh, a State Party to the Rome Statute. As the ICC is mobilizing with its mandate of investigation and prosecution of alleged crimes in Bangladesh/Myanmar situation, it should assess the investigative or prosecuting attempts of Bangladesh in addition to those of Myanmar within the assessment of complementarity under the Rome Statute. Against the backdrop, the blog post will first highlight that the ICC omitted to take note of the prosecuting or investigative attempts in Bangladesh while assessing the issue of complementarity. Then, it will argue that existing judicial forums of Bangladesh have jurisdiction to investigate or prosecute “same persons and substantially the same conduct” that the ICC is also investigating. It will particularly underscore that the International Crimes Tribunal, Bangladesh (ICT-BD) arguably has jurisdiction to investigate and prosecute the crimes against humanity (CAH) of deportation. Moving to the next point, it will provide five additional grounds for considering a trial at the ICT-BD i.e. existing tribunal structure, the possibility to convene trial in Bangladesh, broader scope of case selection, the fair trial issue, and prospects of trials in absentia. Finally, the blog post will advance four legal and extra-legal considerations to persuade the Government of Bangladesh (GoB) to adopt its policy to investigate and prosecute alleged crimes against Rohingyas before the ICT-BD.

The ICC’s Omission to Consider the Judicial Forums of Bangladesh

Both the ICC Prosecutor’s request for authorisation of investigation and the Pre-Trial Chamber’s authorisation decision apparently omitted to implicate the possibility of trials before the existing judicial forums of Bangladesh with respect to their analysis of the principle of complementarity in the Bangladesh/Myanmar situation. The failed joint attempt of a group of victims that sought the convening of ICC proceedings in the close proximity to the victims omitted to count the prospects of trials of crimes committed against Rohingyas within its assessment of principle of complementarity. Both the Prosecution’s Response to Victims’ Request and the Pre-Trial Chamber’s Decision on Victims’ Request made a similar omission.

The ICC is not a court of the first instance. Rather, it is the Court that complements national jurisdiction. This proposition has been reflected in the preambular text and Article 17 of the Rome Statute. According to the Rome Statute and the jurisprudence of the ICC (notably in the Muthaura Admissibility Judgment, para 39), in the event of prosecution or investigation of “same person and substantially the same conduct” by any State Party, the ICC will consider that case as inadmissible, provided that the state in question is not unwilling, unable or inactive in dealing with such prosecution or investigation. As the ICC Office of the Prosecutor (OTP) encourages the positive complementarity and the issue of complementarity could arise at several stages of proceedings, the prospects of prosecution of crimes allegedly committed against the Rohingya population before Bangladeshi judiciary is still relevant.

The ICT-BD’s Jurisdiction over Myanmar’s Alleged Deportations of Rohingya Deportation

The ICC Pre-Trial Chamber’s Decision on Prosecution’s Request on Jurisdictional Ruling ruled that ICC’s mandate in Bangladesh/Myanmar situation is exclusively limited to the alleged CAH of deportation and persecution in connection with CAH of deportation. This is due to the fact that these offences commenced on the territory of Myanmar, a state not a State Party to the Rome Statute; but were completed on the territory of Bangladesh which is a State Party to the Rome Statute. In legal terms, ICC is exercising its jurisdiction over this situation based on the principle of objective territoriality. Accordingly, it is imperative to explore the possibility of a trial of the relevant conduct within the legal framework of Bangladesh.

In order to facilitate the trial and punishment of individuals or organizations accused of certain crimes under international law committed during its war of independence in 1971, the GoB promulgated the International Crimes (Tribunals) Act 1973 (ICT Act). Section 6 of the ICT Act empowers the GoB to establish one or more Tribunals for the accomplishment of such trials. Accordingly, the GoB established two Tribunals namely the ICT-BD on 25 March 2010 and 22 March 2012, respectively. Subsequently, the GoB promulgated the International Crimes Tribunal Rules of Procedure 2010 (ICT RoP) to provide the procedural frameworks of ICT-BD. The ICT-BD handed forty-one judgments to date (thirty by ICT-BD1 and eleven by ICT-BD2). The ICT-BD is still conducting its investigation and prosecution.

Section 3 of the ICT Act provides the jurisdictional basis of the ICT-BD. As regards personal jurisdiction, the ICT-BD can prosecute any individual or group of individuals, or any member of any armed, defence or auxiliary forces regardless of their citizenship. As regards territorial jurisdiction, it can only exercise its jurisdiction over the crimes allegedly committed on the territory of Bangladesh. As regards temporal jurisdiction, it can try any crimes allegedly committed both before and after the commencement of the ICT Act, i.e. 1973. As regards subject matter jurisdiction, it can prosecute CAH, crimes against peace, genocide, war crimes and other violations of international humanitarian law. The preambular text of the legislation further confirms this position.

The ICT Act includes CAH of deportation within its subject matter jurisdiction. As there is no limitation of personal and temporal jurisdictions, Myanmar citizens accused of the CAH of deportation allegedly committed against Rohingyas can be prosecuted before the ICT-BD, irrespective of the time of the commission of such crimes. Accordingly, the ICT-BD does not have any jurisdictional challenges to try the CAH of deportation before it provided that those crimes were committed “in the territory of Bangladesh”. However, two issues require further investigation at this stage: first, whether the ICT Act supports the principle of objective territoriality, and second, whether the elements of the CAH of the Rome Statute are substantially the same as those of the ICT Act.

First, Section 3(1) of the ICT Act refers to “in the territory of Bangladesh” without defining what this means. The ICT Act has made similar omissions in several places. The ICT-BD adopted two techniques in filling up these gaps: first, with reference to the statutes or judicial precedents from corpus juris of Bangladesh or international law, and second, by resorting to judicial innovation. For example, in the Molla Appeal Judgment (p 143), it was held that “[t]he offences of murder and rape mentioned in the [ICT] Act have been defined in our Penal Code and the definition of those offences given in the Penal Code may be taken in aid since this Code has not been excluded by the [ICT] Act.” Accordingly, the interpretation of territory in different legislation may be taken by the ICT-BD for having its own interpretation of territory.

An investigation of a number of legislations indicates that corpus juris of Bangladesh recognizes the extension of territoriality to the principle of objective territoriality. For example, the Penal Code 1860 includes a number of offences that implicate the principle of objective territoriality, namely “kidnapping from Bangladesh” and “importation of girls from a foreign country”. The Code of Criminal Procedure 1898 (CrPC) also recognizes the principle of objective territoriality. Section 179 of CrPC states that a Court may exercise its jurisdiction over any crimes if any element of such crimes or any effect of such conduct takes place within its territorial jurisdiction. In the Abdus Sattar Appeal Judgment, the Appellate Division of Supreme Court of Bangladesh held that Section 179 of CrPC applies to the case where the crime commenced in Jedda in Saudi Arabia with the complainant’s signature on a blank paper but was completed in Bangladesh with the withdrawal of money. This decision is a major reference to interpret the term “within Bangladesh” to include a situation where a part of the crime was committed outside Bangladesh but terminated in Bangladesh. Additionally, a number of specialised penal legislations explicitly incorporated the principle of objective territoriality. Taking note of these illustrations, the ICT-BD could comfortably interpret “in the territory of Bangladesh” to include the principle of objective territoriality.

Second, the ICT Act does not offer any definition of the CAH of deportation. The ICT-BD filled the gap by adopting a definition mostly inspired by the Rome Statute definition of CAH of deportation. Here, it is pertinent to revisit the definition of CAH of deportation of the Rome Statute and its corresponding Elements of Crimes, which is as follows: deportation means forced displacement of one or more persons by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law, to another State. Now, an analysis of the ICT-BD jurisprudence will clarify the point. In the Salauddin Quader Chowdhury Trial Judgment, the ICT-BD held that “…deportation by forcing the people to take shelter in a foreign state India as refugees which is deportation as crime against humanity.” (para 158). The ICT-BD in the Md. Abdul Alim Trial Judgment recognized the difference between CAH of deportation and CAH of forcible transfer of civilians i.e. the former completes on the territory of a third state while the later completes within the state of origin. (paras 210, 211). In the Md. Ranju Miah et al Trial Judgment, the ICT-BD expanded the concept of “force” beyond physical force. It held that “[f]orce may be caused even by spreading coercion, panic and terror.” (para 153). It is evident that the ICT-BD adopted the definition of the CAH of deportation from the Rome Statute.

At the time of writing this blog post, the ICT-BD has convicted thirteen individuals on thirteen counts of deportation. In all these cases, the offences had been commenced on the territory of Bangladesh and were completed within the frontier of a neighbouring state. If the ICT-BD convicts individuals for offences that started in Bangladesh but were completed in the territory of a neighbouring state, it can be logically concluded that the ICT-BD could have jurisdiction to prosecute the offence of deportation that started in Myanmar but concluded in Bangladesh.

Some Additional Considerations

The scope of prosecution and prosecution of alleged crimes committed against Rohingyas at the ICT-BD should consider a number of additional issues. First, the appealing part of the prospects of prosecution of the alleged Rohingya deportation before the ICT-BD is that there is a sitting Tribunal, active Prosecution Team, and Investigating Agency. Since its operation on 25 March 2010, it has handed down forty-one judgments including charges of deportation and it is still investigating and trying cases. Thus, rather than setting up a Chamber of the ICC in Bangladesh, it is more economical and practical to adopt the strategy of investigating the alleged crimes committed against Rohingyas before the ICT-BD.

Second, many victims’ groups including the earlier mentioned groups advocated for trials to be convened in close proximity to the victims. ICC’s decline to uphold such request should not be taken as complete dismay. Rather, it is pertinent to explore such possibility within the framework of the ICT Act. Though the permanent seat of the ICT-BD is in Dhaka, the proviso of Section 6(3) of the ICT Act permits a Tribunal to hold its sittings at such other place or places other than Dhaka. Likewise, the Tribunal has no legal hindrance, at least theoretically, to convene its trial in Cox’s Bazar.

Third, the OTP policy on the case selection requires reconsideration here. The OTP Policy paper on case selection and prioritisation adopted the policy to prosecute the individuals who allegedly bear most responsibility for the identified crimes. (paras 42, 43 and 44). Thus, lower- and mid-level perpetrators may hardly fit within the threshold of the ICC prosecutorial policy. For example, two deserted Burmese soldiers who confessed their culpabilities could hardly be prosecuted by the ICC due to the fact that they appear to be lower-level perpetrators. On the other hand, the ICT Act does not have any such threshold and gravity requirements regarding case selection. The ICT-BD could provide an alternative forum to hold such mid- and lower-level perpetrators.

Fourth, several defence lawyers, right groups, and academics raised the issue of fair trials. Professor M Rafiqul Islam noted that at the beginning, the ICT-BD faced some teething troubles due to lack of sufficient groundworks, research, training, and public relations on the conduct of the trials and witness protection for resource constraints. He further mentioned that the ICT Act and the ICT RoP were subsequently amended to leverage these inconsistencies with the progression of trials. However, this write-up does not intent to take any position regarding the appropriateness of fair trials within the ICT-BD legal framework. Rather it takes the position that the context leading to the trial and prosecution of individuals already within the ICT-BD mandate is totally different from the situation concerning the trials and prosecutions of individuals who allegedly committed crimes against Rohingyas. Primarily, the ICT-BD has been trying crimes committed 2 years before the enactment of its founding instrument and the trials have been taking place four decades after the commission of the crimes. Additionally, the political identities of the accused/convicts should not be overlooked. As regards the crimes against the Rohingyas, the ICT-BD will try and prosecute non-Bangladeshi nationals within its already existing framework, and accordingly the question of fair trials relating to the trials and prosecutions of the individuals in question should be evaluated separately.

Finally, the scope of trial in absentia before the ICT-BD requires some investigation. The criminal justice system of Bangladesh allows trials in absentia in some qualified circumstances. Likewise, the ICT Act, through an amendment in 2012, permits trials in absentia in certain circumstances. At the time of writing this blog, the ICT-BD convicted forty-four persons in proceedings held in absentia. As the Rome Statute does not prescribe the trial in absentia as a general rule (rather it allows such trials in exceptional circumstances and under specific conditions), it is advisable not to follow the trial in absentia for the individuals who may bear individual responsibility for alleged crimes committed against the Rohingya. However, I argue that the likelihood of a trial in absentia should be considered while assessing the theoretical possibility of prosecutions of the individuals who may bear individual responsibility for the alleged deportation and persecution of Rohingyas.

Conclusion

It is evident from the analysis of the ICT Act and jurisprudence of the ICT-BD that the ICT-BD arguably has jurisdiction to investigate and prosecute the perpetrators of the CAH of deportation allegedly committed against Rohingyas. The GoB should formulate its policies to prosecute the persons responsible for the alleged deportation of Rohingyas before the dockets of the ICT-BD for four reasons. First, its duty to prosecute responsible individuals is corollary to its international obligation of ensuring positive complementarity under the Rome Statute. Second, it advances Bangladesh’s longstanding commitment to ensure justice for the victims of international crimes beyond the events of 1971. Third, it offers the Government of Bangladesh an opportunity to bolster its longstanding position related to the excellence of the ICT-BD proceedings. Fourth, the investigative or prosecuting manoeuvres will also help leverage more diplomatic pressures on the Government of Myanmar to forge a viable solution of Rohingya refugees. In addition, the Rohingya victims and advocates of justice and accountability for Rohingya should include this option within their advocacy strategies. As the Independent Investigative Mechanism for Myanmar is currently working on the collection of evidence of the atrocity crimes committed against Rohingyas, it should also include this option within their advocacy strategies. Despite immense political and diplomatic implications that could follow such attempts to prosecute individuals accused of deportation and persecution of Rohingyas, such efforts to ensure justice for Rohingyas will add another meaningful avenue for ensuring justice of the atrocity crimes committed against Rohingyas.