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The following article is the first part of a keynote paper presented at the Bangladesh National Conference on the ICC. It includes an introduction, and a discussion of Bangladesh's progress with regard to ratification of the ICC Statute.

Full text below.

The Daily Star, 14th May, 2000

Dhaka, Bangladesh

Why Bangladesh should be the First in Asia to Ratify International Criminal Court Statute

By Ahmed Ziauddin

Not many countries in Asia, thankfully, have experienced what Bangladesh did, - a total genocide. Pakistani genocidal army in 1971 carried out, under

the garb of "confronting secessionist movements at the instigation of India", genocide that resulted in deaths and disappearances of three million people.

Bangladesh's genocide, however, was overshadowed by two simultaneous but otherwise related events; the liberation war to expel occupying Pakistani forces

from Bangladesh soil and the war between India and Pakistan. That has on many occasions, influenced analysis of the events of 1971 in Bangladesh and

variously been portrayed merely as India-Pakistan war, or as War of Liberation of Bangladesh, and in the process, in many ways, the genocide has been

undermined and overlooked.

This has also influenced policy process over the post-genocide period, and even substantive policy of the new government to workout strategies to deal with

events in 1971. Whether we were victor or victim then that raised questions, as it still does. Bangladesh, however, made some attempts to do justice but the

approach clearly failed to produce the intended results that of establishment of a society at ease with itself. The cry for justice still reverberate in

Bangladesh after so many years of independence and demands to right the past wrongs are no less high pitched.

As a genocide victim nation, Bangladesh government and members of its civil society, took active interest in the process that eventually led to the signing of a historic international treaty, the Statue of the International Criminal Court in Rome, in July 1998, to setup an independent permanent international criminal tribunal. The Court would have jurisdiction over individuals who commit most serious universal crimes, namely, genocide, and crimes against humanity, war crimes, and aggression. Incidentally, in 1971, Bangladesh was the victim of all the four international crimes.

As the world said 'never again' after the holocaust, but miserably failed to prevent subsequent genocides, including one that held in Bangladesh. As a victim

nation, Bangladesh could not thus allow any genocide elsewhere. With this clear commitment, Bangladesh associated itself with the world process to prevent

the genocide and for a post-genocidal justice mechanism, - the International Criminal Court. Bangladesh rightly voted in favor of the adoption of

the Statute of International Criminal Court, while her neighbors, India, Pakistan and Nepal abstained and Sri Lanka voted against.

Accession to the Genocide Convention

Meanwhile, in the same year of signing treaty, the government of Bangladesh acceded to the 1948 Convention on the Prevention and Punishment of the

Crime of genocide. An Inter-ministerial Committee considered necessity for Bangladesh to accede to the Genocide convention. The Committee found that it was

only appropriate for Bangladesh to accede to this Convention "considering Bangladesh's history of liberation war and the genocide against Bangladeshis

during the war of independence". The Committee rejected the view that there was no need for accession to the Genocide Convention since the country does not

anticipate or apprehend genocide in the country.

Instead, the Inter-Ministerial Committee put forward three strong arguments; "Firstly because, no one can guarantee that genocide could not take place in a

given country. Secondly, the Convention aims at preventing any incident of genocide anywhere in the world. Finally, accession to the Convention would be a

commitment to the international community, and make the country live in the comity of nations according to international standards."

The Committee, after considering advises of the Law Commission (Law Commission's remarks were somewhat bizarre. It seems, while advising, the Commission was

totally oblivious of the existence of the International Crimes - Tribunals- Act 1973, a piece of legislation to try the war criminals), recommended

Bangladesh accession to the Convention "on a priority basis".

Bangladesh signed the ICC Statute

Right after its adoption, Bangladesh actively began the process to sign the ICC Statute. Once again, similar rationales were followed, the history of

Bangladesh. The fact that Bangladesh already enacted legislation in 1973 for the trial of the Pakistani war criminals based on very similar principles of

international law of genocide and war crimes that the Statute of ICC contained was helpful.

During consideration to sign the ICC statute, Bangladesh analyzed whether the Constitution of Bangladesh and the International Crimes (Tribunals)

Act needed any amendment, or whether Bangladesh has to give up its right to try and punish international crimes, or whether Bangladesh has to abolish death

penalty provided under its law, but not provided in the ICC stature, or whether this would have any impact on other existing Treaty obligations, or whether

national legislation would be required to implement statute obligations and other issues.

The Bangladesh government took very positive views in favor of signing it. The government concluded that signing of the Statute of the International Court

would have Constitutional implications, though existing constitutional and legal provisions already have provided solid foundation for the development of

international law. And that would facilitate the Bangladesh's acceptance of the Statute of the ICC with a minimum of amending legislation.

Regarding jurisdiction of Bangladesh over the international crimes, it was concluded that Bangladesh, following signature of the ICC statute, would not give up its jurisdiction to prosecute, try or punish any international crimes, as the International Criminal Court essentially would have jurisdiction complimentary to the national criminal jurisdictions.

About consequences for the death penalty provisions in force in Bangladesh, it was viewed that the ICC Statute did not obligate abolition of death penalty by

the signatory state. The Statute instead recognized that the Statute would not affect the penalties provided by the national laws.

However, it was acknowledged that it would be necessary to enact an implementing legislation to give effect to the Statute.

After careful analysis, Bangladesh became the third Asian country to sign the Statute of ICC. On 3 September 1999, on behalf of Bangladesh, Prime Minister Sheikh Hasina signed the Statute at UN Secretariat. After the signing, she said that she signed the Statute of ICC on behalf of Bangladesh.

Recalling her commitment at the Hague Peace Conference in May 1999, that Bangladesh would accede to the Statute very soon, she said, "I am very happy to have fulfilled that commitment today." She said,

"Bangladesh was itself a victim of genocide during its Liberation War and that Bangladesh has particular interest in the establishment of a permanent

international court to ensure that such heinous crimes are not committed in future and perpetrators brought to justice".

Bangladesh's signing of ICC Statute was widely acclaimed, as she being an important Asian country to have shown the path to others. While many Asian countries just barely began the consideration of the statute, the Bangladesh government, though expected for her traumatic experience at birth, confirmed its leadership and committed the country to the path of rule of international law.

The government of Sheikh Hasina deserves sincere congratulations for this on two counts, for the accession to the Genocide Convention and for signing the Statute of ICC in such a quick succession. Bangladesh, thus, sends a loud and clear message to the world community that we want to be part of the comity of nation where international law rules.

Ratification now

The next logical step for Bangladesh is to ratify the Statute of ICC. Signature of an international treaty mandates the State to refrain from adopting contrary policies, but cannot be effective unless ratified. Under Article 126 of the Statute, the ICC shall come into force following the deposit of the 60th instrument of ratification and then actual process to establish the Court would start.

Both signature and ratification process have made considerable progress in many countries. Out of 161 countries, present at the time of adoption of the Statute in Rome, 96 have already signed, while eight of them have ratified (20 April 2000) too. A number of countries are also in the process of ratification.

Bangladesh also has started the work on ratification and the similar reflection process that went on at pre-signature period conceivably has now been going on as well.

This write up is an attempt to outline and analyze the issues relevant to ratification and to offer some suggestions as a contribution to the discussion on ratification.

Questions for Bangladesh

As already noted, Bangladesh completed detail appraisal before the signing of the Statute. The pertinent question for ratification though would be similar, yet before ratification, Bangladesh must clearly ascertain what all are in the Statute of the ICC for Bangladesh. What all we are obliged to do and an unlikely option, what happens, if we do not ratify. We must analyze each answer received in keeping with Bangladesh national interest in mind.

Bangladesh has already overcome the hardest hurdle, political will and decision to accede. She has also indicated that it has every intention to accept the Statute. Where the Prime Minister herself said, for two broad reasons, Bangladesh was herself a victim of genocide and thus, we have special interest in the establishment of a permanent international court. Also to ensure that such heinous crimes are not committed in future and perpetrators brought to justice.

We do not want repetition of 1971 anywhere nor do we like future Yahyas or Tikkas to go scot-free after genocide. Bangladesh thus has no argument against the setting up of a permanent penal court. The country thus has enough reservoir of political determination to ratify the Statute and to play an effective

international role.

That said; let's outline the obligations emanating from the ratification of the ICC Statute. The obligations would be of general nature applicable to all the State Parties.

In the concluding part, the writer will point out the obligations emanate from ratifying the International Criminal Court statute and will analyse on Bangladesh perspective.