Justice Without Independence?

The first article in this series looked at the inadequacy of the amendments made to the law governing Bangladesh’s International Crimes Tribunal.

But, as it concluded, the fairness of trials depends as much on how the law is applied as on the law itself. Above all, it depends on who is appointed to prosecute and to judge, and whether they can act independently.

That was one of the central lessons of the Tribunal’s earlier trials. Its prosecutors and judges were widely seen as aligned with the Awami League and hostile to Jamaat-e-Islami, the party whose leaders were in the dock. The Tribunal’s many shortcomings could be linked to this lack of independence.

The interim government did not learn that lesson.

In September 2024, instead of choosing a chief prosecutor who stood above party politics, it appointed Tajul Islam.

As a young man, Islam was associated with the student wing of Jamaat-e-Islami. He later became a senior member of the defence team for Jamaat leaders prosecuted before the same Tribunal for crimes allegedly committed during the 1971 war.

He was now to lead the prosecution of Awami League politicians whose government had overseen the execution of five Jamaat leaders, men whose cases he had worked on. Most of the prosecutors appointed under him were also aligned with Jamaat, and many had served on its defence team.

After the Bangladesh Nationalist Party won the February 2026 election, the new government removed Tajul Islam, but then repeated the mistake.

Its choice, Aminul Islam, had been a central vice-president of the BNP’s lawyers forum and reportedly sought the party’s nomination for a parliamentary seat in that same election. He had also represented Khaleda Zia, mother of the new prime minister, in the corruption case that led to her conviction in 2018.

The story was similar with the judges.

In October 2024, the interim government appointed the Tribunal’s first three judges. In a country with many High Court judges of long standing, they were of relatively junior status.

The chairman, Golam Mortuza Majumder, and Mohitul Haque Md Enam Chowdhury were both retired district judges. The third, Shafiul Alam Mahmud, had no judicial experience at all; he had been made a High Court judge only days before his appointment to the Tribunal.

Mahmud was also aligned with the BNP. In 2019 he was elected in the Supreme Court Bar Association elections on a BNP slate, and he has been an active member of the Bangladesh Nationalist Lawyers Forum.

None of the three had any experience of international criminal law. And there was a legitimate question whether any Bangladeshi judge could act with sufficient independence at a time when anti-Awami League feeling was running exceptionally high.

The interim government could have addressed both problems by amending the law to allow non-Bangladeshi judges to sit. This is not unusual in domestic courts: International judges have been used in domestic or hybrid accountability processes in Bosnia, Kosovo, Senegal, Sierra Leone, and East Timor. Nor do they need to come from Western countries. What matters is that they are experienced and independent.

The government chose not to go down this route.

The independence of the judges matters all the more because, as the first article explained, Articles 47(3) and 47A of the constitution mean that no Tribunal decision before final judgment can be challenged in any other court. That covers arrest, bail, and the framing of charges. The Tribunal’s judges are the only safeguard an accused has.

Their record suggests that safeguard is not working.

More than 150 people have been detained on the Tribunal’s orders, many under an arrest rule that requires no evidence of a crime.

Neither tribunal has released a single one of them on bail. That is despite many having been held for more than two years without charge, many being elderly or seriously ill, and the allegations against many being weak.

The Tribunal has never declined to take cognizance of a formal charge. It has never rejected a prosecution application to frame charges, nor upheld a single discharge application filed by the accused. Every accused who has stood trial has been convicted of at least one offence; one, who turned approver, was later pardoned.

A record like this does not prove that any individual decision was wrong. But it is fair to argue that a court that is genuinely weighing the evidence and assessing the law does not side with the prosecution on these contested questions, in every case, for two years.

The interim government also chose not to refer cases to the International Criminal Court in The Hague. Above all, it could have referred the case against Sheikh Hasina, her home minister, and her inspector general of police.

In October 2024, Muhammad Yunus met the ICC chief prosecutor and the issue was discussed, but nothing came of it.

Referral would have had a significant drawback. The ICC does not permit full trials in absentia, so unless Hasina had been surrendered to The Hague, no trial could have taken place.

But the benefits would also have been considerable. An ICC arrest warrant can be issued only after judges are satisfied there are reasonable grounds to believe the person committed a crime, a high threshold suggesting that there is a very legitimate case for trial. A warrant from The Hague against Sheikh Hasina and others would have carried real weight and been beyond reproach.

Instead, Hasina has been sentenced to death in absentia by a domestic tribunal whose independence is open to serious question. Her state-appointed lawyer was unable to take instructions from her, and she has no right to a retrial. Much of the world will view that verdict with a scepticism an ICC arrest warrant would never have attracted.

In the end, however, the government’s wish to control the process outweighed everything else.

David Bergman is a journalist who has written widely on Bangladesh. He has a website monitoring the trials at Bangladesh 2024 Justice Watch. He can be contacted on Twitter @TheDavidBergman.