Introduction:
Bangladesh is at a crossroads. With the Student Uprising in August[i] which unseated Sheikh Hasina’s Government, the ‘Interim government’ led by Chief Advisor Mohammad Yunus, who was parachuted into the position, has decided to pursue the legal route. The Interim government has reconvened[ii] the International Crimes Tribunal, an institution which was established to try war criminals after the India-Pakistan War of 1971. Arrest Warrants have been issued against Sheikh Hasina, the Awami League’s General Secretary, and 44 others, alleging they committed crimes against humanity[iii] during the July-August 2024 student uprising.
Thus, the question arises whether the ‘Interim Government’ is overstepping its mandate and making significant policy decisions which can alter the very nature of democracy and the rule of law in Bangladesh. Is the Tribunal being used as a political tool? Through this article, we will try to answer this question.
Historical Background of Bangladesh’s International Criminal Tribunal:
The establishment of the International Crimes Tribunal in Bangladesh is an outcome of the Bangladesh Liberation War[iv], related to the atrocities committed by the Pakistani Army—atrocities that were widely documented and drew global attention. These included massacres, torture, rape, disappearances, destruction of property, and forced displacements among other crimes. The Pakistani military specifically targeted Bengali nationalists, with a particular focus on students, intellectuals, and minority communities such as the Hindus[v]. During this time, ten million people sought refuge in India, thirty million were internally displaced, and thousands of women were raped and killed[vi].
After independence, the new government of Bangladesh, under the leadership of Shiekh Mujibur Rehman, sought to bring the perpetrators of these atrocities to justice. This led to the passing of the 1973 Act[vii], which provided for the detention, prosecution, and punishment of individuals responsible for genocide, crimes against humanity, war crimes, and other offences under international law. Initial investigations focused on members of the Pakistani Army; however, due to a tripartite agreement[viii] among India, Bangladesh, and Pakistan regarding the prisoners of war (POWs), many of the convicted were granted clemency.
Furthermore, the push for accountability for the crimes of 1971 perpetrated by those aiding and abetting Pakistan was derailed by a military coup in 1975. It remained stalled until 1990, when General Ershad’s military rule ended, allowing for multiparty elections and the return of civilian rule in Bangladesh[ix]. Since then, power has alternated between Sheikh Hasina, daughter of Sheikh Mujib and leader of the Awami League (AL), and Khaleda Zia, widow of Ziaur Rahman and leader of the Bangladesh Nationalist Party (BNP). As a result, the 1973 Act remained dormant for nearly four decades—until Sheikh Hasina revived[x] it and established a tribunal in 2010 and 2012.
Over the years, the Tribunal faced many criticisms for unfair trials which predominantly focused on silencing political critics, without giving the right to appeal against a conviction[xi]. Furthermore, the provisions in the ICT Act, even after amendments, bar anyone accused from seeking constitutional remedies before the Bangladesh Supreme Court[xii]. This calls for further amendments to improve the procedural safeguards for the accused before making the same mistakes again[xiii].
Role of the Interim Government in Shaping this Tribunal:
With the assumption of power by Bangladesh’s Interim Government on August 8, in the wake of student uprisings and popular protests, the nation is standing at a crucial juncture. However, while protests express discontent, they do not amount to a mandate to govern for anyone. Therefore, conducting nationwide elections must be the interim government’s top priority—something that remains absent from the agenda so far.
Secondly, the appointment of Advocate Mohammed Tajul Islam as the Chief Prosecutor for the International Crimes Tribunal of Bangladesh (ICT-BD) is also troubling and partisan, due to his association with Jamaat-e-Islami[xiv]. This, in fact, signals that the trials under this ‘interim government’ may be far from impartial. It will serve as a stark reminder of the Nuremberg and Tokyo trials post-World War II, where justice was often seen as a tool for the victors – in Bangladesh’s case, ‘student protesters’ are the driving force rather than a fair and due process of law. Even after the regime change, the legal apparatus, which should be independent, continues to operate under political pressure[xv]. The judiciary’s independence is fundamental to the rule of law as it protects and is the cornerstone of democracy.
It is worth recalling that in 2013, Mohammed Tajul represented JeI leader Abdul Quader Mollah in the infamous “Molla case,” where Molla was sentenced to life imprisonment for crimes against humanity[xvi] by the ICT-BD. However, Mollah was later executed – after having approached the Supreme Court which rejected his plea and following the denial of his petition to the President for clemency.
Yet, despite his previous role as a defence lawyer, Tajul and the Ministry of Law have now suggested amendments to the Act which raise serious concerns about whether he wishes to discontinue the misdoing of the previous government or instead wield the law as a political tool against his political rivals. Chief Advisor Dr Yunus has repeatedly claimed that the Interim Government aims for state reform focused on matters of public ownership, accountability, and welfare[xvii]. Therefore, a question arises: Will Mohammed Tajul really pursue justice? Or is it only a plan to make large-scale changes in the state apparatus to ensure that the government formed by his allies survives?
Thirdly, in another significant development, the Interim Government has invited a fact-finding mission from the United Nations Office of the High Commissioner for Human Rights to investigate alleged human rights violations[xviii]. Although Bangladesh has been a member of the Rome Statute since 2010, the effectiveness of UN involvement in the ICT’s proceedings is doubtful.
Given the global crises that stretch the resources of the United Nations, coupled with a history of selective justice in international tribunals, its role in the Bangladesh political conflict is questionable at best. Time and again, UN-backed investigations have shown a troubling pattern of focusing on politically expedient targets. The International Criminal Court (ICC), for instance, has disproportionately prosecuted African leaders. At this point of time, there are about 32 cases before the International Criminal Court (ICC), most of them involving former leaders and individuals from Africa[xix]. This selective focus undermines the credibility of such tribunals and poses a significant challenge to its ability to deliver fair and timely justice. Will the ‘interim government’ use the ICT-BD to consolidate power? Only time will tell.
Furthermore, there have been allegations of indiscriminate false murder charges being filed against political dissenters. Between August 5 and September 25, The Daily Star reported[xx] that 1,474 cases were filed alleging violent incidents. In total, 92,486 individuals were named, including former ministers, political leaders, teachers, and even police personnel[xxi]. In the midst of all this, Dr. Yunus’s Interim Government has pushed for sweeping reforms in Bangladesh’s system, setting up six commissions[xxii], such as the Constitutional Reforms Commission, the Judicial Reform Commission, and the Police Administration Reform Commission, among others.
Adding to this complex legal landscape, the Law Ministry of Bangladesh has proposed significant amendments to the International Crimes Tribunal (ICT) Act, 1972[xxiii]. These proposed changes include:
- Section 3(2)(a): A redefinition of crimes against humanity, seeking to broaden the scope of prosecutable offenses.
- Section 4(2): The inclusion of “leader of an organisation, association, entity or organised group” among eligible defendants, thus introducing the concept of command responsibility.
- Section 19(1): A proposal allowing the Tribunal to bypass technical rules of evidence, permitting the use of reports, photographs, and other materials that could aid the prosecution.
- Section 3(3): Incorporating the Element of Crime of the International Criminal Court (ICC), as adopted under Article 9 of the Rome Statute.
- Section 12(2): Permitting foreign counsel with ten years of experience in international criminal law to appear in trials, making an exception to the Bangladesh Legal Practitioner and Bar Council Order, 1972 (President’s Order No. 46 of 1972).
- Section 13(A): Allowing representatives from foreign governments and international organisations to attend public trials, subject to approval.
- Section 20(A): Empowering the Tribunal to prosecute and ban political organisations for up to ten years, including restrictions on participating in elections, rallies, the use of digital media, and fundraising.
These preliminary amendments reflect a broader effort to reshape Bangladesh’s judicial and political framework. There are also ongoing discussions about potentially involving international judges[xxiv] in the process, further complicating the country’s legal and political future.
Conclusion:
It is important to observe how the scenario evolves in Dhaka as the cases and the amendments in the ICT-BD are becoming more ‘political’, irrespective of the legal structure of that institution. The processes taking place in Bangladesh will determine the future of Sheikh Hasina in India since the current interim government has demanded her extradition. However, India can refuse, based on Section 31 of The Extradition Act of 1962 because the cases raised against her appear ‘political’ in nature.
References:
[i] Khasru, S.M. (2024) Bangladesh’s Student Movement and Hasina’s exit: The Hard Truth and India’s hour of Reckoning, The Hindu. Available at: https://www.thehindu.com/news/international/bangladeshs-student-movement-and-hasinas-exit-the-hard-truth-and-indias-hour-of-reckoning/article68540639.ece (Accessed: 23 October 2024).
[ii] Crimes against humanity, genocide: Arrest warrants for Hasina, 45 others (2024) The Daily Star. Available at: https://www.thedailystar.net/news/bangladesh/crime-justice/news/crimes-against-humanity-genocide-arrest-warrants-hasina-45-others-3730126 (Accessed: 23 October 2024).
[iii] Ibid
[iv] Chopra, S. (2015). The International Crimes Tribunal in Bangladesh: silencing fair comment. Journal of Genocide Research, 17(2), 211–220. https://doi.org/10.1080/14623528.2015.1027080
[v] Jahan, R. (2004) 1971 Genocide in Bangladesh, Taylor & Francis. Available at: https://www.taylorfrancis.com/chapters/edit/10.4324/9780203495698-15/genocide-bangladesh-rounaq-jahan (Accessed: 23 October 2024).
[vi] Ibid
[vii] International Crimes Tribunal, Bangladesh. Available at: https://www.ict-bd.org/ict1/ (Accessed: 23 October 2024).
[viii] Bangladesh/India/Pakistan, 1974 agreement – ‘Delhi Agreement’ (1974) Bangladesh/India/Pakistan, 1974 Agreement | How does law protect in war? – Online casebook. Available at: https://casebook.icrc.org/case-study/bangladeshindiapakistan-1974-agreement (Accessed: 23 October 2024).
[ix] Bangladeshis bring down Ershad regime, 1987-1990 | Global Nonviolent Action Database. Available at: https://nvdatabase.swarthmore.edu/content/bangladeshis-bring-down-ershad-regime-1987-1990 (Accessed: 23 October 2024).
[x] War crimes trial in Bangladesh: Pakistan stands exposed (2011), Manohar Parrikar Institute for Defence Studies and Analyses. Available at: https://www.idsa.in/idsanews/war-ccrimes-trial-in-bangladesh-pakistan-stands-exposed_akumar_251215 (Accessed: 23 October 2024).
[xi] Fazi, M.A. et al. (2019) ‘Bangladesh’s Approach towards International Criminal Law: A Case Study of International Crimes Tribunal Bangladesh’, Journal of Politics and Law, 12(3), p. 80. doi:10.5539/jpl.v12n3p80.
[xii] Article 47A was added in the Bangladeshi Constitution as part of an amendment passed on July 15, 1973. It states that laws regarding the prosecution or punishment of war crimes cannot be declared unconstitutional. Refer http://bdlaws.minlaw.gov.bd/act-367/section-24596.html#:~:text=%5B47A.,3)%20of%20article%2047%20applies
[xiii] Islam, M.R. (2015) ‘Trials for International Crimes in Bangladesh’, Trials for International Crimes in Asia, pp. 301–317. doi:10.1017/cbo9781316221754.014
[xiv] Advocate Tajul Islam made ICT Chief Prosecutor (2024) The Daily Star. Available at: https://www.thedailystar.net/news/bangladesh/crime-justice/news/advocate-tajul-islam-made-ict-chief-prosecutor-3696896 (Accessed: 23 October 2024).
[xv] Bangladesh chief justice forced to resign amid protests (2024) India Today. Available at: https://www.indiatoday.in/world/story/bangladesh-supreme-court-protesters-ask-chief-justice-to-resign-2580198-2024-08-10 (Accessed: 23 October 2024).
[xvi] The Chief Prosecutor v. Abdul Quader Mollah, International Crimes Tribunal 3 LNJ (AD) (2014) (2014) Abdul Quader Mollah vs. the chief prosecutor, International Crimes Tribunal 3 LNJ (AD) (2014) . Available at: https://www.lawyersnjurists.com/lawyer_ci/case/abdul-quader-mollah-vs-the-chief-prosecutor-international-crimes-tribunal–3-lnj-ad-2014-121 (Accessed: 23 October 2024).
[xvii] Bangladesh Interim Government to Create Six Commissions for Sector Reforms (2024) News on air. Available at: https://www.newsonair.gov.in/bangladesh-interim-government-to-create-six-commissions-for-sector-reforms-2/ (Accessed: 23 October 2024). Also refer, https://www.dhakatribune.com/opinion/op-ed/358941/fundamental-rights-are-absent-in-the-international
[xviii] UN fact-finding team issues call for submissions in Bangladesh (2024) United Nations. Available at: http://surl.li/xxtpbo (Accessed: 23 October 2024).
[xix] Pulipaka, S. and Musaddi, M. (2024) Is Bangladesh’s interim government state building by stealth?, – The Diplomat. Available at: https://thediplomat.com/2024/10/is-bangladeshs-interim-government-state-building-by-stealth/ (Accessed: 23 October 2024).
[xx] Khan, M.J. (2024) Fall of hasina regime: Over 92,000 accused, 1,474 cases, 51 days, The Daily Star. Available at: https://www.thedailystar.net/news/bangladesh/crime-justice/news/fall-hasina-regime-over-92000-accused-1474-cases-51-days-3724231 (Accessed: 23 October 2024).
[xxi] 44 deaths in mob violence in 2 months (2024) The Daily Star. Available at: https://www.thedailystar.net/news/bangladesh/news/44-deaths-mob-violence-2-months-3716631 (Accessed: 23 October 2024). For more, refer
[xxii] Yunus charts a path to reforms (2024) The Daily Star. Available at: https://www.thedailystar.net/news/bangladesh/news/yunus-charts-path-reforms-3700751 (Accessed: 23 October 2024).
[xxiii]Sarkar, A. (2024) ICT act amendment: Draft proposes banning political parties up to 10yrs, The Daily Star. Available at: https://www.thedailystar.net/news/bangladesh/news/ict-act-amendment-draft-proposes-banning-political-parties-10yrs-3710501 (Accessed: 23 October 2024).
[xxiv] Ibid
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