The current Bangladeshi interim government has decided to try former Prime Minister Sheikh Hasina before the International Crimes Tribunal (ICT) for genocide and crimes against humanity committed during the student-led anti-discrimination mass uprising from July 1 to August 5, along with all other perpetrators. The decision comes after she filed the first complaint against her with the ICT’s investigation agency on August 14th, along with previous ministers, law enforcement officials, and her party members.
In 2010, the Hasina-led government established the ICT under the International Crimes (Tribunals) Act of 1973 to investigate atrocities committed during the liberation war against Pakistan in 1971. As a result, lawyers differ on whether the tribunal’s authority is confined to trying war crimes committed in 1971 or if it also covers atrocities committed after that year. Because there is no express prohibition in the ICT Act, jurists believe the July-August slaughter can be tried before the tribunal. In contrast, some analysts advocate moving to the International Criminal Court (ICC), while others recommend constructing a hybrid ad hoc international crimes tribunal within the United Nations.
Human Rights Watch, Amnesty International, and the UN Human Rights Council have criticised Hasina’s tribunals for a lack of objectivity and noncompliance with international legal requirements. Members of the present temporary administration criticized the ICT’s lack of impartiality, respect for due process, and procedural fairness.
Thus, it is suggested that both the tribunal and the ICT Act require considerable legislative, institutional, and infrastructure reform to conform with worldwide standards and alleviate earlier criticisms. The ICT Act is out of date and has not been amended to reflect the evolution of new international criminal law jurisprudence, particularly changes at the ICC. Sheikh Hasina and her associates’ trial will not be fair or neutral within the current system. This raises worries about utilizing the Act for political vendetta rather than genuine justice.
As a result, if Hasina’s trial proceeds in the same manner, the international community would likely condemn it. Those responsible for the July-August mass killings would also have the opportunity to question the trial’s credibility, despite the fact that they had previously ignored the tribunal’s concerns.
Property Disputes and Land Acquisition in India: Navigating Legal Challenges
In a recent interview, Asif Nazrul, the current interim government’s adviser to the ministry of law, justice, and parliamentary affairs, stated that they will address concerns raised by foreign and UN agencies about deficiencies in the ICT Act, such as definitions, limitations in recording evidence, restrictions on accused persons’ right to legal relief, and so on.
Experts found weaknesses in the tribunal’s legal structure and practice, both substantive and procedural. Human rights organizations and legal monitors, for example, have pushed for a broad definition of crimes against humanity and genocide in accordance with international criminal law, as well as an expansion of the accused’s due process rights.
The ICT Act of 1973 was amended in 2013 in response to public outcry, with retrospective effect, to allow prosecution to file an appeal against the tribunal’s verdict before the Supreme Court, rather than to alleviate previous criticism that denied the accused a right against self-incrimination or a right to legal counsel when being questioned by the investigator. Furthermore, the Act lacks strong witness protection provisions, which may dissuade witnesses from coming forward or lead to intimidation, jeopardizing the proceedings’ integrity.
Other flaws include limitations on interlocutory appeals to the Supreme Court and challenges to the composition of the judicial bench. The mechanism used to appoint the tribunal’s prosecutors and judges has been criticized for their lack of knowledge and affiliation with the then-government. Section 6(8) of the Act states that neither the prosecution nor the accused may challenge the tribunal’s creation. The temporary administration has already nominated the chief prosecutor and four other lawyers as the tribunal’s prosecutor, while the tribunal’s restructuring has yet to be completed.
The improper application of the modes of responsibility and the constitutive elements of the offences raises serious doubts about the trial’s fairness. During Hasina’s government, foreign observers and media were denied unrestricted access to the tribunals. For transparency, free observation is required not just during trials but also during the pre-trial period. Furthermore, the defence was not permitted to hire foreign counsel or given adequate time to prepare its case, which must be remedied immediately.
The Law Adviser and Chief Prosecutor of the ICT have officially acknowledged that international lawyers would be able to participate in the hearing process through legal amendments. The Law Adviser further stated that international agencies would have the ability to monitor the process, but they would not be able to participate directly due to the existing capital sentence provision in the law.
One key difficulty is that the ICT Statute’s definition of crime against humanity is not consistent with international law. According to international law, crimes against humanity must be committed as part of a ‘widespread and systematic’ onslaught against any civilian population.This jurisprudence arose in 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 now considered a customary rule of international law. The Rome Statute later formalized this notion of customary international law, as well as other internationalized criminal tribunals capable of prosecuting crimes against humanity.
If the contextual element of a ‘widespread and systematic’ attack against a civilian population is not included in the definition of crimes against humanity, the crimes in question may be confused with domestic crimes such as murder, extermination, and torture. If the prosecuting tribunal fails to respect these customary law standards, the legality and opposability of any subsequent international law ruling may be called into question, and the parties may not get criminal justice.
However, the Bangladesh Constitution has provisions that restrict essential rights, including protection from trial and punishment for war criminals incarcerated at the ICT. The very first change to the Constitution (Article 47(3)) removed essential rights for members of the armed, defense, or auxiliary forces at the ICT. As a result, the 15th amendment denied fundamental rights to any individual, group of individuals, or organization. As a result, the ICT was criticized for exceeding the scope of constitutionally granted fundamental rights.
Nonetheless, the ICT Act required the state to pass a national legislation outlawing and penalizing genocide. According to the Bangladesh Constitution, the Genocide Convention of 1948 imposes a treaty responsibility on Bangladesh as a contracting party.
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, as well as to investigate the causes of previous and current violence and to make recommendations on how to prevent similar occurrences in the future. However, the United Nations has long been opposed to the death sentence and has advocated for its elimination. The ICT Act, among other proposed punishments, includes the death penalty (S. 20(2)).
Nonetheless, Section 8 of the ICT Act implies that the government will form an investigative agency. The question now is whether the UN investigative team will be part of that agency. If not, the existing regulations make it unclear if an inquiry report made by the UN can be accepted because the government-constituted body is primarily responsible for investigation.
The government has not stated how they intend to handle complaints, investigations, judge appointments, trials, and so on in the field of ICT. The government may establish one or more designated contact places for victims of violations or their family members to seek aid, information, and guidance before initiating a lawsuit.
Following the exemplary collapse of the repressive political system and public uprising, the current administration is expected to safeguard the rule of law and protect human rights for all, even the accused. Criminals must be brought to justice by proper and just legal processes.