The ICT Act: a conduit to internalise international criminal law
The ICT Act represents a process of national incorporation of international criminal law in which Bangladesh has internalised international crimes and criminal responsibilities, making them an integral part of its national criminal justice system. This harmonisation process is the most effective way to improve compliance with international law. Once international law is ingrained into national law, such law is observed mandatorily through legislative enactments, judicial interpretations, and executive enforcement.
The perennial problem of international law is its ineffectiveness caused by non-compliance, which often prevails in the decentralised international legal system devoid of any effective centralised enforcement mechanism. The regulatory competence of the international legal system to enforce law and obligations is lacklustre in many areas. Nowhere is this deficit acuter than the prosecution of international crimes to end the impunity of their perpetrators. Most states are very protective of their sovereignty and apprehensive of external interference and domination. These states see interactions between international and national laws through super-imposed incorporation, transformation, and harmonisation as a subversion of their sovereignty. Consequently, they practice dualism, which dominates the existing state-centric international order. After over 18 years of its operation, the ICC jurisdiction is being actively resisted by powerful non-party states, like the US, Russia, and China, creating a two-tiered standard of accountability for the powerful and powerless. The ICC jurisdiction seems to be operating only in weak states, not in powerful states and their allies. The ICC prosecutor has failed to undertake and pursue any investigations beyond Africa yet.16 It was this politics of international cooperation that prevented the ICC from exercising its jurisdiction over the Kenyan President and Vice President17 and Saif al-Islam Gaddafi of Libyais.
The Kenyan and Libyan cases highlight the failures of the ICC of bringing to justice high profile political elites. With no enforcement agency at its disposal, the ICC is dependent on cooperation from its members to execute its arrest warrants and gain access to the crime sites, witnesses, and official records to conduct its investigation. The ICC could not accomplish these tasks for want of cooperation from Kenya and Libya. The ICC Statute, being a compromise of many competing interests, reflects many inadequacies and the ICC jurisdiction is yet to be universal, which are its serious limitations.
Given the above limitations, the question is: where should justice for the world’s worst atrocity crimes be done? The accused of international crimes are individuals/nationals of states, which necessitate that national judiciaries exercise primary jurisdiction. Criminal justice is deeply entrenched in state sovereignty and institutional competence to investigate arrest, detain, and punish criminals. Until the international criminal justice system evolves and matures further, preference to national trials may not be gainsaid. National trials are generally more efficient, practical, time-efficient, and cost-effective than hybrid and international trials because of their close proximity to the victims, perpetrators, witnesses, crimes sites, and local languages. National trials appear to have better value for justice to the victims and help uphold the basic norms of the particular society that respect the victims' rights and convey a message to the retrospective and prospective perpetrators that impunity for their crimes is over. Giving priority to international jurisdiction under the present circumstances is incapable of averting the outcomes, like the Kenyan and Libyan failures, where the perpetrators escape justice and their victims endure injustice. The reality is that reasoned internationalism and nationalism do not always complement each other in this sovereign state-centric international legal system.
Bangladesh enacted the ICT Act as a purveyor and enforcer of international obligations in its national jurisdiction. It is a conduit to incorporate international criminal law, which however circumscribed is a progressive step to mitigate the tension and intersection between international and national laws. International criminal law respects the sovereign jurisdiction of states to try their nationals for committing the ICC crimes. Its interaction with the ICT Act has enforced accountability, which is an improvement over total impunity and frustrating the cause of justice. Through this interaction, Bangladesh has improved its legislative and judicial capacity to try its nationals for committing international crimes and strengthened the relationship between international and national laws. The Act thus contributes to achieving the unity of the purpose of breaking the cycle of impunity for international crimes shared by both legal systems. It pursues this unified purpose within the domestic jurisdiction of Bangladesh in a manner that preserves legal plurality in this diverse world.
The ICT Act is a human construct of a parliament elected in the aftermath of a violent liberation war and a product of the balance of power prevailed in Bangladesh in 1973. It is not free from lapses and criticisms. However, the Act was not criticised for any lacking after its enactment for many years until the commencement of the trials. Since the trials, it has been criticised for its failure to comply with international criminal law.19 Any evaluation of the Act must be done in consideration of the prevailing international criminal law prior to and at the time of its adoption, not by any subsequent developments. The crimes and their criminal responsibility embodied in the Act are nothing new but recognised and existed in international law long before 1971. The Act merely incorporated the pre-existing international criminal law.
Given the international political climate at the time of its adoption, the ICT Act was a courageous domestic law that broke the deafening silence of the international community to rekindle its Nuremberg promise of ending impunity. It contributed to the progression in the application of international criminal law in the domestic sphere. The Act was a product of its time and built on the prevailing principles of international criminal law in major international treaties including the Nuremberg principles, The Hague, Genocide, and Geneva Conventions up until 1973. During the UN diplomatic conference in Rome that adopted the ICC Statute in 1998, the ICT Act received multiple mentions in “unofficial protocols” of the ICC drafting discourses.20 International criminal law experts hailed the Act as a cutting-edge law to further the cause of international criminal justice:
[I] s a carefully prepared document’ [which] represents an important recognition and implementation of international due process guarantees for th[o]se accused of international crimes [and that] this act goes beyond the Nuremberg guarantees.21
The Act has been made progressive through subsequent amendments to grapple with its inadequacies and strike a balance between competing rights and interests.22 Following these amendments, the ICC President, Judge Sang-Hyun Song, applauded that “Bangladesh’s upcoming 1971 war crimes trials will be held under its recently amended International Crimes (Tribunals) Act 1973”.23 In its review opinion on the amended Act, the International Bar Association concluded that “[t]he 1973 legislation, together with the 2009 amending text, provides a system which is broadly compatible with current international standards”.24 The Nuremberg Charter establishing the Tribunal, for the first time in history, indicted and tried senior political leaders for international crimes, which has become the “legalism's greatest moment of glory”.25 The ICT Act too set up the trials of political leaders for their international crimes and has been hailed as “a subcontinental Nuremberg”.26
Atrocity crimes are increasingly committed in non-Western states, many of them being dualist incorporate those international criminal law that are consistent with their local values and circumstances. Given this state practice, it is a farfetched expectation that these states will hold domestic trials of international crimes committed in their territories exclusively under Eurocentric international criminal law even if it is inconsistent with local values and circumstances. Being a domestic law of a dualist state, the ICT Act had to (a) reconcile the inherent tension between the local uniqueness and Eurocentric tradition; (b) import international criminal law in a manner consistent with local uniqueness and values; and (c) blend international criminal law with the domestic legal tradition and requirements. This cross-fertilisation has fostered interaction between international and national laws to become partners that have enriched the legal system of Bangladesh and consolidated the unity and strength of law in conducting domestic trials of international crimes.
In the wider context, the ICT Act has the potential of contributing to the progressive development of Asian jurisprudence on international criminal law initiated by the Tokyo Charter and prospered by the Statutes of international crimes trials in East Timor and Cambodia. The international community has a curious habit of displaying its rhetorical reaction, “never again”, in the aftermath of every genocide and mass atrocity, which is invariably unmatched by any decisive action.27 The 1973 Act has paved an alternative legal way to challenge the impunity of hostis huniani generis for their outrage upon humanity that had happened in Bangladesh in 1971.