RaisuL Sourav is a Doctoral Researcher in Law at the University of Galway School of Law, Republic of Ireland; a Lawyer and a Rights Activist.

The present interim government of Bangladesh has decided to try the former ousted prime minister Sheikh Hasina before the International Crimes Tribunal (ICT) for the crimes of genocide and crimes against humanity during the students led anti-discrimination mass uprising between 1 July-5 August along with all persons involved in these crimes. The decision follows the first complaint made against her with the investigation agency of the ICT on 14 August together with former ministers, law enforcers and her party men.

The Hasina-led government domestically constituted the ICT in 2010 under the International Crimes (Tribunals) Act of 1973 to probe atrocities during the liberation war against Pakistan in 1971. As a result, there is disagreement among lawyers about whether the tribunal’s jurisdiction is limited to trying the war crimes of 1971 or if its competence extends to offenses that took place afterward as well. As there is no such explicit bar in the ICT Act, jurists opined that the July-August massacre can be tried before the tribunal. By contrast, some analysts advise going to the International Criminal Court (ICC) while a few propose forming a hybrid ad hoc international crimes tribunal under the UN.

There were major criticisms both politically and legally at the national and global level including by Human Rights Watch, Amnesty International and the UN Human Rights Council against the Hasina formed tribunals for lack of neutrality and non-compliance with international legal standards. Even members of the current interim administration critiqued the lack of impartiality, respect for due process and procedural fairness of the ICT.

Thus, it is argued that the tribunal as well as the ICT Act need significant legislative, institutional and infrastructural reform to align with international standards and ease the previous controversies against it. The ICT Act is outdated and has not been updated according to the evolution of new international criminal law jurisprudence, specially following evolutions at the ICC. Within the existing framework, the trial of Sheikh Hasina and her allies will not be fair and neutral. This may lead to concerns about using the Act as a tool for political vendetta rather than genuine justice.

Accordingly, if Hasina’s trial takes place under the same arrangement, then it is liable to be condemned by the international community. Those responsible for the July-August mass killing would also get the opportunity to challenge the credibility of the trial even though they did not act upon criticisms of the tribunal earlier.

Asif Nazrul, the adviser to the ministry of law, justice and parliamentary affairs of the current interim government has disclosed in a recent interview that they will address the concerns expressed by foreign and UN agencies relating to deficiencies in the ICT Act in terms of definitions, limitations in recording evidence, constraint of right to get legal relief of the accused persons etc.  

Experts have identified both substantive and procedural flaws in the legal framework and practice of the tribunal. For instance, Human rights and legal monitor bodies have urged to define crimes against humanity and genocide comprehensively in compliance with international criminal law, and to enlarge the due process rights of the accused. The ICT Act of 1973 was further amended in 2013 responding to public outcry with retrospective effect to allow prosecution to file appeal against the verdict promulgated by the tribunal before the Supreme Court, not to ease the previous criticism which did not permit the accused a right against self-incrimination or a right to legal counsel when being questioned by the investigator. Moreover, the Act does not provide robust witness protection measures, which could discourage witnesses from coming forward or lead to intimidation, thus compromising the integrity of the proceedings.

Other loopholes include restrictions on interlocutory appeals to the Supreme Court and limitations on challenging the composition of the judicial bench. The method of appointment of the prosecutors and judges of the tribunal has been condemned due to their lack of expertise and affiliation with the then government. Under section 6(8) of the Act, the formation of the tribunal cannot be challenged either by the prosecution or by the accused. The interim government has already appointed the chief prosecutor and four other lawyers as the prosecutor of the tribunal although reorganisation of the tribunal is yet to done.

The defective application of the modes of liability and the constitutive elements of the offences presents critical concerns as to the fairness of the trial. During Hasina’s regime, the tribunals also prohibited open access to foreign observers and journalists. Free observation is crucial not only during trials but also in the pre-trial stage for transparency. Furthermore, the defence was not allowed to engage foreign lawyers or given adequate time to prepare its case which needs to be addressed adequately now. The Law Adviser and chief prosecutor of the ICT have now confirmed that foreign lawyer will be allowed to get involved in hearing process by amending the law. The Law Adviser also informed that foreign agencies would get opportunity to observe the process although they may not be able to involve with the trial process directly due to the existing capital punishment provision in the law.

One major issue is that, the definition of crime against humanity contained in the ICT Statute does not reflect the international law definition of the crime. Under international law, crimes against humanity need to be committed as part of a ‘widespread and systematic’ attack against any civilian population. This jurisprudence emerged during the 1990s at the UN ad hoc international criminal tribunals (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) and is regarded as a customary rule of international law. Subsequently, the Rome Statute codified this principle of customary international law as well as other internationalized criminal tribunals competent to prosecute crimes against humanity.

If the definition of crimes against humanity does not include this contextual element of a ‘widespread and systematic’ attack against a civilian population, the crimes in question may not be differentiated from the domestic crimes of murder, extermination, torture, etc. If the prosecuting tribunal neglects to apply these customary law requirements, the legitimacy and opposability of any subsequent judgment under international law may be doubtful and it may not ensure criminal justice for the parties.

However, the Constitution of Bangladesh has provision to exclude fundamental rights including protection in respect of trial and punishmentfor the war criminals held at the ICT. The very 1st amendment to the Constitution (Art. 47(3)) struck out fundamental rights for member of armed, defence or auxiliary forces at the ICT. Subsequently, the 15th amendment took fundamental rights away for any individual, group of individuals or organization as well. Consequently, there was criticism about the ICT for going beyond the scope of constitutionally guaranteed fundamental rights.

Nonetheless, the ICT Act also put a legal obligation on the State to enact a law prohibiting and punishing the crime of genocide at the national level. According to the Constitution of Bangladesh, a treaty obligation is also conferred by the Genocide Convention, 1948 on Bangladesh as a contracting party to it.

The current interim administration has already sent an official letter inviting the UN High Commissioner for Human Rights to conduct an independent fact-finding mission into the recent student movement and uprising along with finding out the causes of past and latest violence and seeking recommendations for necessary measures to prevent such occurrences in the future. However, the UN has historically opposed the death penalty and campaigned for its abolition. The ICT Act has provision for death sentence among other suggested punishments (S. 20(2)).

Nevertheless, section 8 of the ICT Act implies that an agency will be established by the government for the purpose of investigation. Now, a question may come whether the UN investigative team will be a part of that agency. If not, then it is not clear under the existing provisions as to the acceptance of an investigation report prepared by the UN as the government-constituted agency is primarily responsible for investigation.

The government has not disclosed their stance as to how do they will deal with the complaints, investigation, appointment of judges, trial etc. in the ICT. The government may set up one or more designated contact points for victims of violations, or their family members, to seek assistance, information and advice toward filing their case.

It is expected that the present administration will ensure the rule of law and respect human rights for all including the accused after the exemplary fall of the repressive political regime and mass uprising. Criminals must be brought before justice adhering to proper and just legal proceedings.