On 4 February 2014, a 'Communication' was filed with the Prosecutor of the International Criminal Court ("ICC") in The Hague to open a preliminary inquiry into the situation in the People's Republic of Bangladesh. The Attorney General of Bangladesh, Mahbubey Alam, responded that there was no legal scope to file such a petition. On 20 February 2014, the ICC Prosecutor responded by officially registering the Communication and will now consider the filing and supporting evidence in detail to determine whether to open a preliminary inquiry. It would therefore appear, on this occasion, that the Government was not entirely correct.
There are many applications to the ICC that are based on a desire for publicity rather than any expectation of prosecution. The application by the International Coalition for Freedom and Rights, an independent European human rights organization, for an investigation into the situation in Bangladesh, concerning mass extrajudicial killing, torture and brutality is without doubt a serious legal bid. Supported by some of the most respected international jurists- from Lord Carlile QC the British Government's adviser on counter-terrorism to Sir Desmond de Silva QC, the former Chief Prosecutor at the Special Court for Sierra Leone and the former ICTY Prosecutor Sir Geoffrey Nice QC, - the ICC Prosecutor Fatou Bensouda is expected to take this submission very seriously.
What is certain is that evidence of crimes against humanity having been committed by the Bangladesh Security Forces is highly compelling. From witness accounts to the testimony of relatives, to photographic evidence and video footage there is detailed and deeply disturbing evidence of the systematic repression, torture, murder and forced disappearance of those who support opposition parties and whose views differ from that of the current Regime.
Since she came to power in 2009, Prime Minister Sheikh Hasina and her government have attempted to cripple opposition to her rule through a combination of legal and physical means. This took a brutal turn in 2013 with credible allegations emerging of several hundred deaths at the hands of the Security Forces. During that year, there were three intense periods in particular where dozens of anti-government protesters were killed.
The first incident the ICC communication considers is from 28 February 2013 when protesters demonstrated against a death sentence handed down to an opposition politician accused of war crimes during Bangladesh's War of Liberation in 1971. The Tribunal that handed down this sentence has repeatedly been found to be in breach of international law and has been mired in allegations of corruption and judicial misconduct. Yet, despite these allegations, it managed to secure its first execution on 12 December 2013. The very forum established to end impunity is itself guilty of perpetuating impunity in Bangladesh.
Then, early May 2013 protesters in support of an ultra-conservative Islamic group were forcibly dispersed from the capital's commercial district. It is widely believed that many hundreds were killed. The event has been described as a "massacre" by some sectors of the international media. When leaders of a local human rights group Odhikar offered testimony to the media they were arrested.
Finally the state violence perpetrated against supporters of the opposition during the highly disputed election on 5 January 2014 - which the opposition boycotted - reached a new level. Opposition leaders have been arrested, several have died in custody and - in one incident saw an opposition member dragged from his house during the night and shot on the rooftop of his home by security forces. The government has tried to explain the deaths of so many opposition supporters as 'crossfire' and as 'unintended' during raids by security forces on perceived 'terrorist' organisations.
Independent observers attribute many of these deaths to deliberate killings by government forces of individuals already in custody, including Human Rights Watch, which has described this recent violence an 'escalation' of killings in custody, and said Bangladesh was 'spiraling into a human rights crisis.' Considering that HRW has been charged with contempt by the Government for criticising the conduct of the trials a familiar pattern is emerging.
Despite numerous requests the Government of Bangladesh has failed to investigate or prosecute any individuals bearing responsibility for these crimes. It is quite clear they refuse to do so. It is therefore imperative for the ICC as a court of last resort that has the powers to investigate and prosecute when a country is unwilling to do so to begin an investigation into the Bangladeshi Government, starting with its leadership.
It is of course falls on the discretion of the ICC Prosecutor who she prosecutes. The Communication sets out that cabinet members responsible for law and security, the Police Commissioner, Director of the Rapid Action Battalion and the Border Guards Bangladesh were persons exercising control over the political and police action. However, heading as she does the Ministries of Home, Foreign Affairs and Defence, as well as the Office of Prime Minister, there is no one who can be considered more culpable in the Government's actions than Sheikh Hasina Wazed herself.
Even government advisers may have a case to answer, including the Prime Minister's son, Sajeeb Ahmed Wazed. In his position as a Government adviser he issued a public statement in December calling for members of the opposition Islamist political party to be 'wiped out'. In the days following the statement dozens of members of the opposition were killed. On 5 January 2014 alone at least 21 civilians were killed. It will be for the ICC Prosecutor to now to determine whether there is a sufficient connection between Wazed's call for a political party to be 'wiped out' and the deaths that followed to bring criminal charges against him.
In the face of this violence, and under pressure from the international community, the Bangladesh Government has tried to frame this situation as one of liberal secularism versus illiberal Islamism. Yet there is nothing progressive, secular in violently suppressing an opposition whose worldview you do not share.