Tuesday, February 13, 2007

Global Human Rights Defence Report


“With intent to destroy?”
Rape as Genocide under International Criminal Law - the Case of Bangladesh

JENNY LUNDSTRÖM


Abstract
This research analyses the concept of genocidal rape as a crime under substantial international criminal law. There is yet no consensus in the debate and jurisprudence of contemporary substantial international criminal law as to the definition and scope of rape as a genocidal act but as this paper will illustrate, there is a discrepancy particularly between traditional defenders of fundamental legal principles like nullum crimen sine lege and the heterogeneous feminist critique. Another objective is to discuss whether or not the rapes that have been taking place in Bangladesh post the 2001 elections, when the Bangladesh Nationalist Party (BNP) came to power, may be classified as acts of genocide under substantial international criminal law. The relevance of such a is evident; Bangladesh signed the Rome Statute in 1999 and accordingly, the International Criminal Court has jurisdiction over the crime of genocide in respect to Bangladesh. In order for the International Criminal Court (ICC) to exercise jurisdiction over this crime in the future, it is essential that such definition is established. This paper constitutes a contribution to the debate with intent to emphasise the importance of the ICC continuing its future expansion of the investigation of the crime of genocide in a gender sensitive manner.

Background
“The Bangladesh National Party (BNP) came into power through the National Parliamentary elections in October 2001(*1). Together with the Jamaat-e-Islami, Jatiya Party (Naziur) and Islami Oikya Jote they captured a two-thirds majority of seats in Parliament and they could establish a four party coalition. BNPs former Chairman Khaleda Zia took the oath of office as the 11th Prime Minister of Bangladesh on October 10th, 2001. Due to accusations of election misconduct the opposition party, Awami League (AL), initially boycotted the new government and the elections were followed by political instability and country wide violence(*2). After the elections the violence against minorities has greatly increased according to journalist reports, human rights organizations and other observers in the country. An estimated 500,000 persons belonging to the minorities have fled to India after the 2001 elections(*3). In particular, Jamat e Islami has proclaimed that their objective is to set up a Sharia State. Militants aspire to converse the religious minorities to Islam, or otherwise force them to leave the country(*4). In addition to the killings, looting, forced conversions, kidnappings and arson, hundreds of women irrespective of age were allegedly raped immediately after the elections(*5). Gang rape is possibly one of the most cynical and heinous of crimes, but yet an efficient tool in the form of personal punishment, frightening and destroying entire communities.”

Concluding Remarks
“[…]there are certainly clear indications that may lead to the conclusion that those rapes could constitute genocide under the ICC statute, article 6 (b). It has been my ambition to illustrate that the rapes in Bangladesh are taking place in a context of general structural discrimination and that the state appears unwilling or unable to acknowledge and/or take action. […] I can conclude that violence against women [rapes] in Bangladesh will not end until firstly, the general structure of discrimination against minorities and women is acknowledged and secondly, the notions and practices of male dominance are challenged, deconstructed and ultimately transformed. As a signatory to the CEDAW and to the ICC Statute, the ultimate responsibility for such endeavors as expected lies within the individual State. Unless the state of Bangladesh takes immediate action to acknowledge these atrocities and expresses its full commitment to bring them to an end, there might be indications that support the claim that the rapes in Bangladesh are committed with intent to destroy, in whole or in part the Hindu group as such. #

*1 The elections were held on the 1st of October, 2001. Awami League (AL), winners of the June 1996 parliamentary elections, peacefully handed over the control to a nonpartisan caretaker administration on July 15, 2001. Source: National democratic Institute http://www.ndi.org/worldwide/asia/bangladesh/bangladesh.asp

*2 For information on the 2001 elections See Azad 2003:9, and National Democratic Institute http://www.ndi.org/worldwide/asia/bangladesh/bangladesh.aspFor violence after the elections see, inter alia GHRD 2005. The minority human rights situation in Bangladesh, Amnesty International 2001 5 Dec. ”Bangladesh: Hindu minority must be protected”. http://web.amnesty.org/library/Index/ENGASA130072001?open&of=ENG-BGD

*3 See, inter alia, GHRD 2005. The minority human rights situation in Bangladesh s.5 Amnesty International 2001 5 Dec. ”Bangladesh: Hindu minority must be protected”. http://web.amnesty.org/library/Index/ENGASA130072001?open&of=ENG-BGDADD MER NOTER

*4 GHRDInvestigative Report Bangladesh. Rape of Adolescent Girl (15): Impunity for most Perpetrators Case no: 20051103-BD-02. Date of Investigation: 3rd and 4th of November, 2005. Rabindra Gosh. Report available at www.ghrd.org

*5 See, inter alia, GHRD 2005. The minority human rights situation in Bangladesh, and writings by Dr Ajoj Roy, http://www.secularvoiceofbangladesh.org/A_humanisjt_by_Dr_Roy.htm, Human Rights Watch 2003. World Report.

Jenny Lundström is Human Rights Officer of The Netherlands based Global Human Rights Defence

Contact: Global Human Rights Defence, Javastraat 58, 2585 AR The Hague, The Netherlands Phone: +31 70 345 69 75, +31 70 345 34 11, Fax: +31 70 392 65 75, Cell: +31 6 164 94 311, url: www.ghrd.org, e-mail : info@ghrd.org Link: http://www.ghrd.nl/Default.asp?id=2437