Doughty Street Chambers is now preparing an Article 15 communication based on evidence obtained from the victims and witnesses of these alleged atrocities in Bangladesh, writes Quazi Omar Foysal
THE recent move by the ousted Awami League leadership to engage the renowned British law firm Doughty Street Chambers, led by Stephen Powles, in drafting an Article 15 communication seeking an International Criminal Court investigation into Bangladesh鈥檚 interim government has reignited discussions about its potential impact in Bangladeshi politics. It is worth mentioning that this is not the first attempt to target the interim government with the threat of the ICC. Earlier, former Sylhet City Corporation mayor Anwaruzzaman Chowdhury made a public statement claiming that he had submitted an Article 15 communication targeting the interim government leadership. I previously argued that such an Article 15 communication would not yield fruitful results. In this case, however, the engagement of a reputed law firm led by an experienced lawyer underscores the seriousness of this attempt, warranting a reassessment of the prospects of the Article 15 communication.
According to the website of Doughty Street Chambers, journalists, police officers, minorities, and individuals connected to the Awami League have been subjected to killings, arbitrary imprisonment on false criminal charges, unchecked mob violence, and incitement of religious violence following the takeover of the interim government on August 8, 2024. It further states that these alleged 鈥榰nprovoked and violent鈥� attacks were planned at the highest level and amount to crimes against humanity of murder, persecution, and imprisonment or severe deprivation of liberty due to their widespread and systematic nature. Doughty Street Chambers is now preparing an Article 15 communication based on evidence obtained from the victims and witnesses of these alleged atrocities in Bangladesh.
The appointment of Stephen Powles to prepare this Article 15 communication has sparked curiosity in several quarters in Bangladesh. As stated on the firm鈥檚 website, he has been involved in eight cases concerning international crimes, mostly as a defence lawyer, including the case of former Liberian first lady Agnes Reeves Taylor. The involvement of Doughty Street Chambers in Bangladesh is not a new phenomenon. Its founding head of the chambers, Geoffrey Robertson, commissioned by the International Forum for Democracy and Human Rights, authored the Report on the International Crimes Tribunal of Bangladesh in 2015. Additionally, Megan Hirst, a lawyer at Doughty Street Chambers, is representing a group of victims before the ICC. However, the present engagement differs from its previous ones.
Since Doughty Street Chambers is preparing an Article 15 communication, it is useful to have a clear understanding of what this entails. Under the Rome Statute, the founding instrument of the ICC, the Court鈥檚 jurisdiction can be triggered in three ways: referral by an ICC member state, referral by the UN Security Council, or the initiative of the ICC prosecutor. In the third scenario, the ICC prosecutor may initiate an investigation proprio motu, i.e., on their own initiative, based on information about crimes within the Court鈥檚 jurisdiction. Such a submission to the ICC prosecutor requesting an investigation under Article 15 of the Rome Statute is formally known as an Article 15 communication.
The ICC typically receives a large number of Article 15 communications each year. Given the frequency of submissions, the Court has created an online portal, OTPLink, to facilitate the process. Due to the seriousness of the information contained in an Article 15 communication in a given scenario, the prosecutor may seek additional information from states, UN bodies, intergovernmental or non-governmental organisations, or other reliable sources related to that communication. Upon receiving a communication, the Office of the Prosecutor undergoes a four-stage procedure, as outlined in its 2013 Policy Paper on Preliminary Examinations, to determine the merits of the submission.
If the prosecutor determines that there is a reasonable basis to believe that a crime within the ICC鈥檚 jurisdiction has occurred and that the case meets the gravity threshold and aligns with the interests of victims, it initiates a preliminary examination. However, at this stage, the Prosecutor cannot automatically launch a full-fledged investigation. If sufficient evidence emerges during the preliminary examination, the Prosecutor must seek authorization from the ICC鈥檚 Pre-Trial Chamber, which may approve or reject the request. If the prosecutor finds an Article 15 communication unconvincing, they may decide not to proceed at any stage of the process.
Since Doughty Street Chambers is still preparing the Article 15 communication, and the ICC maintains confidentiality regarding such submissions, its specific details remain unknown. However, publicly available information on the chambers鈥� website indicates that the submission will focus on post-August 8 incidents and allege crimes against humanity. Notably, the Awami League leadership has been making these claims on social media for a long time. In this context, the United Nations Human Rights Office Fact-Finding Report on Bangladesh, which investigated human rights violations between July 1 and August 15, 2024, could provide valuable insight.
The UN report indeed examined alleged human rights violations committed against Awami League supporters, police officers, and religious minorities. The Awami League even submitted a list of 144 deaths involving police forces and party supporters to UN investigators, of which 18 occurred between 6 and 15 August 2024. However, there is no evidence in the UN report to suggest that the post-August 8 incidents meet the threshold for crimes against humanity. On the contrary, the UN report suggested that the events before August 5 events may amount to crimes against humanity.
The key to establishing the ICC鈥檚 jurisdiction is evidence. Given the high threshold required for such crimes and the rank of potential perpetrators, the success of Article 15 communication will depend on the quality and authenticity of the evidence presented. It remains to be seen how Doughty Street Chambers meets this threshold amid the widespread dissemination of misinformation.
Furthermore, the ICC prosecutor primarily relies on reports from the UN and NGOs when deciding to conduct preliminary examinations. While Article 15 communications are acknowledged, their impact is often minimal. The absence of supporting evidence in the UN report regarding the Awami League鈥檚 allegations of international crimes will be a crucial factor in determining the fate of Doughty Street Chambers鈥� Article 15 communication. Therefore, it would not be surprising if the communication fails to pass the first stage of the Policy Paper on Preliminary Examinations 2013.
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Quazi Omar Foysal is a lecturer at American International University-Bangladesh and advocate at the Supreme Court of Bangladesh.
