Bangladesh should host ICC’s proceedings in Cox’s Bazar

On August 4, 2020, the legal representatives of three specific groups of Rohingya victims submitted a joint request to the Pre-Trial Chamber of the International Criminal Court (ICC), requesting it to direct the Registry of the Court to prepare an assessment of potential venues for holding the Court's proceedings in a state other than the host state (i.e. the Netherlands) so that proceedings can be held in a location which is physically closer to the victims of the alleged atrocities, who are currently residing in various refugee camps in Cox's Bazar, Bangladesh. In brief, the victims requested the Court to direct the Registry to explore whether the proceedings could be held in a location physically closer to Cox's Bazar, where the victims are currently residing.

On August 17, the Office of the Prosecutor filed its response to the aforesaid request expressing its apprehensions and concerns. Nonetheless, on August 20, the Court issued an order inviting the Registry to submit its observations on the aforesaid request of the victims. Accordingly, on September 21, the Registry filed its observations. In that, they identified five possible scenarios corresponding to different types and stages of the Court's proceedings which could take place in Cox's Bazar. The potential scenarios range from logistically simpler and temporally concise options like a visit by a judge to a refugee camp in Cox's Bazar or organising a video-link testimony by a witness based in Bangladesh rather than bringing them to The Hague, to more logistically complex and temporally longer options such as holding the entire confirmation of charges hearing or rendering the decision on the confirmation of charges in Bangladesh.

The Registry identified two potential locations which could be utilised for the aforementioned scenarios: a refugee camp, or a UN compound or similar infrastructure in Cox's Bazar. The Registry also observed a priori that, from the standpoint of security, both the locations are suitable if: (i) Bangladesh provides general and security support, (ii) international organisations running the refugee camp cooperate, and (iii) adequate human and financial resources are provided.

The Registry also informed the Court that they are in the process of finalising the requisite legal arrangements for the Court's cooperation with Bangladesh. However, the adoption of such legal arrangements may take a few months. The Registry also noted that Bangladesh has not signed the Agreement on the Privileges and Immunities of the ICC and highlighted its practical implications. In conclusion, the Registry emphasised that the holding of proceedings in Cox's Bazar is, in any event, subject to the agreement and cooperation of Bangladesh, barring which no progress can be made on this front.

Now, from the standpoint of Bangladesh, two specific questions require answering: Should Bangladesh host the ICC's proceedings on the alleged crimes perpetrated against the Rohingya community in Myanmar? And can Bangladesh host the aforesaid proceedings?

To answer the first question, it should be first noted that if Bangladesh moves ahead with it, it will be the first time in the history of the ICC that it will be holding its proceedings outside the host state (i.e. the Netherlands). More importantly, these proceedings will set a key precedent in the practice of the Court and will be a great leap in the direction of victims-centred justice, by bringing the Court and the actual process of meting out justice physically closer to the victims, thereby highlighting their centrality and indispensability to the global fight to end impunity for atrocities. Undoubtedly, Bangladesh will be playing a key role in the ultimate success of this endeavour.

Bangladesh will also once again act as the pathfinder for international justice in South Asia and South East Asia, considering that, other than Afghanistan and Maldives, it is the only South Asian nation which is a state party to the Rome Statute—the founding treaty of the ICC. Bangladesh is also one of only three countries in South East Asia (others being Timor-Leste and Cambodia) that are state parties to the Rome Statute.

From a material and diplomatic standpoint, the holding of the ICC's proceedings in Cox's Bazar will refocus the world's attention to the plight of the Rohingya and their continued persecution in Myanmar, and encourage renewed calls for the creation of a safe and secure environment in Rakhine to allow for their voluntary return to their homeland.

It is quite evident that, if the answer to the first question is in the affirmative, the answer to the second is simply a test of the will. None of the legal, financial, logistical, infrastructural or security issues identified by the Registry in its observations are novel or insurmountable. If Bangladesh has the will, these issues can easily be dealt with efficiently and effectively, even under the current circumstances with the ongoing pandemic. Moreover, in all likelihood, there are still many months left before the initiation of any relevant proceeding before the Court. The Prosecution is still conducting its investigation, which is not likely to conclude anytime soon. Hence, Bangladesh has enough time to prepare for the anticipated proceedings.

Finally, the people of Bangladesh have their own history of being targets of genocide and crimes against humanity, vying for justice and to end impunity for the perpetrators of atrocities. It is only appropriate that the first-ever ICC proceeding outside the host state should be in Bangladesh—in which Bangladesh is standing up for the cause of justice for a people who are widely seen as the most persecuted group in the world.

Farhaan Uddin Ahmed is a lecturer in public international law at the School of Law, BRAC University, and former legal professional at the International Criminal Court (ICC), The Hague. Email: fua@cantab.net