A Fact-Finding Report by the UN Office of the High Commissioner for Human Rights (OHCHR) (UN Report) suggested that around 1,400 people were killed during the July 2024 uprising in Bangladesh, which led to the end of Sheikh Hasina’s 15-year authoritarian rule and the Bangladesh Awami League’s (BAL) grip on power following mass student protests and a deadly crackdown (here, here, here, here, here). Facing widespread public fury, the former PM fled to India, while an Interim Government led by Nobel Laureate, Dr Muhammad Yunus, took control. Legal action under the International Crimes (Tribunals) Act 1973 (ICTA) has been launched before the International Crimes Tribunal of Bangladesh (ICT-BD) by the victims’ family members against Hasina and other senior BAL figures for alleged crimes against humanity. Though Dhaka has requested for Hasina’s extradition, India is unlikely to oblige, potentially justifying its refusal under the carve-out clauses of the bilateral extradition treaty. This post argues that despite recent significant reforms, the ICTA still fails to meet international standards, particularly due to the continued insufficient expertise of international judges and the retention of the death penalty–elements that remain unchanged from its earlier version and raise serious concerns about compliance with international law. For the purposes of this post, the pre-reform version of the ICTA will be referred to as the ICTA, while the post-reform version will be identified as the revised ICTA. The post will begin with a brief overview of the ICTA’s background, followed by an analysis of the problematic parts of both the earlier and amended versions.
Revival of the ICT-BD and Controversies Surrounding Its Proceedings
The ICTA was originally enacted to prosecute international crimes committed during Bangladesh’s 1971 Liberation War. After returning to power in 2008, the BAL Government established the ICT-BD. In the early 2010s, the ICT-BD convicted and executed several leaders of Jamaat-e-Islami and the Bangladesh Nationalist Party (BNP), which were BAL’s main political rivals. These trials were heavily criticised by human rights organisations like Human Rights Watch and Amnesty International for failing to ensure fair trials. The current cases relating to the July–August 2024 events mark the second phase of proceedings before the ICT-BD.
Initial Proceedings: Alignment with International Standards?
The preamble to the ICTA clearly states that it is ‘[a]n Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law’. These are all international crimes. The ICTA has drawn its inspiration from the Charter of the International Military Tribunal (the Nuremberg Charter). Since the ICTA addresses international crimes, its provisions and the standards applied under it should be interpreted in line with those established under the ICC Statute and the International Covenant on Civil and Political Rights (ICCPR) (both signed and ratified by Bangladesh).
The earlier ICT-BD trials and the Supreme Court of Bangladesh’s judgments under the ICTA reflect a fundamental misunderstanding of public international law. In the landmark Quader Molla case, the Supreme Court dismissed the defendant’s argument that, in the absence of a definition of crimes against humanity in section 3(2)(a) of the ICTA, the Court should interpret the offence in line with customary international law, particularly by incorporating the requirement of a ‘widespread or systematic attack’ found in Article 7 of the ICC Statute (pp 141–142). This argument was crucial, especially since the Supreme Court itself acknowledged that the ICTA did not define crimes against humanity (p 143). Nevertheless, the Supreme Court ruled that customary international law did not apply (p 260) and maintained that the ICT-BD had jurisdiction to proceed with the trial even if that meant departing from the principles of public international law (pp 131–132). As a result, the Supreme Court imposed death penalty on Quader Molla clearly disregarding customary international legal standards. This approach occurred in other cases as well. In doing so, both the Supreme Court and the ICT-BD overlooked the essential need to assess the state of customary international law as it stood in 1971 to avoid violating the prohibition against retroactive punishment (Report by Geoffrey Robertson QC, p 95). Furthermore, their refusal to require proof of a ‘widespread or systematic’ attack underscored their lack of awareness of the evolution and requirements of international law (Report by Geoffrey Robertson QC, p 96). The Supreme Court also fundamentally erred in failing to recognise that applying customary international law is essential for prosecuting international crimes at both domestic and international levels.
The ICTA and the trials conducted thereunder were heavily criticised by the UK Supreme Court and the Court of Appeal in Mueen-Uddin v State. The observations of the UK Courts remarkably pointed out why a trial under the ICTA cannot satisfy the international norms. The principal criticism centred around the significant lack of protection afforded to the defendant under the ICTA, as in the words of the Supreme Court: ‘[Mueen-Uddin being tried in his absence] could not realistically be expected to attend the trial or any subsequent appeal, since he faced a real risk of execution’ (para 63). This is because that the ICTA includes provisions that led to constitutional amendment in Bangladesh, specifically the insertion of Article 47A in the Constitution, to bar individuals accused under the ICTA from accessing constitutional remedies (para 72). As a result, the provisions of the Code of Criminal Procedure 1898 and the Evidence Act 1872 were rendered inapplicable (Section 23), essentially removing the defendant’s rights to effectively challenge the admission of questionable evidence to his serious detriment. This is alarming since death penalty is the default punishment under the ICTA (Section 20(2)).
Revised ICTA: Safeguarding the Rights of the Accused?
In November 2024, the present Interim Government substantially reformed the ICTA to bring the law closer to international standards. Notably, the definitions of the international crimes within the ICTA have been amended in light of the ICC Statute with explicit reference thereto. While the revised ICTA’s adoption of the ICC Statute definitions in place of the outdated ones under the ICTA is a positive step toward safeguarding the accused’s right to a fair trial, a key question persists as to whether these amendments can be applied retrospectively, considering that the current proceedings commenced in October 2024. Additionally, the revised ICTA still does not contain any provision expressly acknowledging the applicability of treaties, principles and rules of international law like the ICC Statute (Article 21(1)(b)), which makes the application of customary international law and other international norms uncertain given the binding effect of the earlier judgements rendered by the Supreme Court. This is especially relevant since, under Article 111 of the Constitution, the ICT-BD is obligated to follow the judgments of the Supreme Court. Furthermore, the revised ICTA does not address the expertise of international judges and retains death penalty–features carried over from the original version–that fundamentally weaken fair trial guarantees, which will be examined in detail in the following sections.
(i) Concerns with Expertise of ICT-BD Judges
A newly appointed prosecution team, headed by a recently designated Chief Prosecutor, has taken over the responsibility of prosecuting Hasina and the other accused, while the ICT-BD has undergone restructuring through the appointment of new judges from the national judiciary. The ICT-BD trials held during the BAL era were widely criticised since judges made serious errors due to their limited expertise in international law (Report by Geoffrey Robertson QC, pp 95-96). Given the complex and nuanced nature of crimes against humanity, such specialised expertise is arguably indispensable. However, despite adjudicating crimes under international law, the ICTA does not mandate any specialised training in international criminal law for judges or ICT-BD personnel, nor does it offer mechanisms for consulting experts in international crimes or related tribunals. This shortcoming persists after the revisions to the ICTA.
(ii) Death Penalty
In the UN Report, OHCHR specifically stated that it cannot assist the Interim Government in the judicial process, as capital punishment is permissible under the ICTA (para 255). The OHCHR strongly recommended introducing a moratorium on the application of death penalty (para 347), which has also been suggested by the Human Rights Watch. Toby Cadman, special adviser to the ICT-BD’s Chief Prosecutor, has consistently emphasised the need to revisit the provision for capital punishment in light of international considerations. However, Bangladesh’s Law Adviser dismissed this suggestion, citing the legality of the death penalty under domestic law. This reasoning solely based on its compliance with domestic law is fundamentally flawed, since the ICTA itself removes several key protections available to the accused under core domestic legal instruments, including the Code of Criminal Procedure, the Evidence Act, and even the Constitution. While the revised ICTA incorporates the definitions of international crimes as outlined in the ICC Statute, it notably ignores the Statute’s limit of 30 years’ imprisonment as the maximum penalty for such crimes (Article 77(1)(a)). This reflects a selective approach that lacks justification. Therefore, retaining capital punishment will undermine efforts to align with international human rights standards.
Conclusion
Although the revised ICTA introduces some welcome reforms, serious shortcomings remain–particularly the insufficient expertise of international judges and the continued use of the death penalty. These contentious issues, reveal persistent deficiencies that hinder the ICTA’s compliance with international norms. The Interim Government must clarify what, qualifies the ICTA or its revised version as truly ‘international’. If the Interim Government proceeds with trials under the revised ICTA in the same manner as the previous BAL administration, without addressing the critical concerns outlined here, there is little reason to believe that the process will avoid the same widespread international criticism and condemnation it previously received.
Khan Khalid Adnan has completed his LLM in Litigation and Dispute Resolution from UCL with distinction. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Barrister in England and Wales, and an Advocate of the Supreme Court of Bangladesh. Currently, he serves as the Head of the Chamber at Khan Saifur Rahman & Associates, Dhaka, Bangladesh.
