The Verdict Before the Verdict

Within days of Sheikh Hasina fleeing Bangladesh on August 5, 2024 and Muhammad Yunus, the founder of Grameen Bank, being sworn in as head of an interim government, accountability for the hundreds of killings during the protests had become one of the dominant issues in the country’s political debate.

A consensus soon emerged that the International Crimes Tribunal (ICT) would be central to achieving it.

The ICT, which operates under the International Crimes (Tribunals) Act 1973, was established by the Awami League government in 2010 to prosecute Bangladeshis, principally members of Jamaat-e-Islami and its student wing, for international crimes allegedly committed during the country’s 1971 war.

Though the trials appeared popular at the time, international human rights organizations roundly criticized them for serious violations of fair trial standards, including, at one point, the abduction of a defence witness by state agents.

The interim government recognized that the Act needed reform and, after a short consultation, introduced a number of important amendments, most significantly bringing the definition of crimes against humanity into line with the Rome Statute, the founding treaty of the International Criminal Court (ICC) in The Hague.

These changes, however, fell well short of what fair trials require.

A major obstacle remains Articles 47(3) and 47A of the constitution, which restrict key fundamental rights for anyone arrested under the 1973 Act and bar them from seeking constitutional remedies in the Supreme Court.

The interim government could not amend the constitution, but it could have written these rights into the Act and created an appeals process to enforce them.

Because it did not do so, no Tribunal decision before final judgment -- on arrest, bail or the framing of charges -- can be challenged in any other court. As later articles in this series will show, this has resulted in significant injustice.

Nor was the procedure for trials in absentia changed. No modern international crimes tribunal other than the now-closed Special Tribunal for Lebanon (STL) has permitted such trials, and the STL attached important safeguards.

An accused abroad retained the right to appoint and instruct their own lawyers, and one who had absconded and was represented by assigned counsel was entitled to a full retrial if they later came before the court.

Those accused before Bangladesh’s ICT have neither right. A state-appointed lawyer, often representing several accused in the same trial, must mount a defence without any contact with the people they are defending. And there is no opportunity to have a re-trial.

When the charges are as serious as crimes against humanity and the death penalty a real possibility, such in absentia trials raise serious questions about their fairness, however strong the prosecution case may appear.

The new arrest provisions in the rules of procedure are, if anything, a regression from the Awami League era. Under Article 58 of the Rome Statute, the ICC can issue an arrest warrant only after a pre-trial chamber has examined the prosecutor’s evidence and is satisfied that there are “reasonable grounds to believe that the person has committed a crime.”

The current ICT rules set no evidential threshold at all.

Under Rule 9(1), the Tribunal may issue a warrant whenever the investigating officer considers arrest “necessary” -- a term the rules do not define.

The Awami League-era rules were hardly robust, but they at least required the prosecution to satisfy the Tribunal that arrest was “necessary for effective and proper investigation.”

The new rule lowers even that bar, and the prosecution has abused it to arrest many people without any substantive evidence of a crime.

The defence has also not been given adequate time to prepare.

Under the 1973 Act, a trial can begin just three weeks after the prosecution discloses its evidence, a provision widely criticized during the Awami League’s years in power.

The interim government extended this to six weeks -- still far too short given the seriousness and complexity of the crimes -- but a further amendment in 2025 cut it back to three.

In addition, the government left in place the bar on cross-examining witnesses about contradictions between their initial statements to investigators and their subsequent testimony in court.

Widely criticized under the Awami League, the rule denies the defence one of its most basic tools: Exposing inconsistencies to test a witness’s credibility.

However far a witness strays from their original account, the discrepancy cannot be put to them, even though such questioning is routine in ordinary criminal trials under Bangladesh’s Evidence Act.

These are only some of the flaws in the 1973 Act and the Tribunal’s rules of procedure.

But the fairness of trials depends as much on how the law is applied as on the law itself: On the approach of the prosecution, the quality of the defence and the independence of the judges.

These issues will be examined in subsequent articles.

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. This is the first in series of articles on the ICT.