The International Crimes Tribunal is Bangladesh’s domestic war crimes court. It was set up under the International Crimes (Tribunal) Act 1973. The ICT Act was drafted in the aftermath of the War for Independence to prosecute alleged Pakistani perpetrators of genocide, war crimes, and crimes against humanity during the war. It was Bangladesh’s response to the Nuremberg trials and Tokyo trials after World War II.
The ICT is more akin to a military tribunal similar to Bangladesh’s court martials, which are used for the prosecution of offences by military personnel. The ICT, however, is staffed by an entirely civilian team of judges and prosecutors.
The 1st amendment to the Bangladesh Constitution stripped away fundamental rights for military and paramilitary defendants at the ICT. The 15th amendment went a step further, by stripping away fundamental rights for “any individual, group of individuals or organization/” The inapplicability of fundamental rights in the ICT is determined by Article-47 (3) of the Bangladesh Constitution. As a result, Article-35 on protection in respect of trial and punishment does not apply to the ICT. This means the ICT is exempt from the constitutionally guaranteed right to a fair trial.
The tribunals thus blatantly fall short of international standards. It should come as no surprise that the ICT was subjected to intense criticism when the Awami League revived the tribunal in 2010 to prosecute surviving collaborators of the Pakistani military in 1971, including leaders of the Jamaat-e-Islami and Bangladesh Nationalist Party (BNP). After the fall of Sheikh Hasina, lawyers from the BNP and Jamaat have seemingly proliferated the interim administration and are attempting to prosecute Hasina and the AL in the ICT. There have even been calls to prosecute the Jatiya Party in the ICT.
Are the lawyers behind such calls not willing to uphold fundamental rights?
The withdrawal of fundamental rights from the jurisdiction of the ICT was a policy of the AL. The stripping away of fundamental rights in the ICT was promoted by the AL Law Minister Manoranjan Dhar in July 1973, and reinforced by Sheikh Hasina’s 15th amendment in 2011. So, why are the BNP and Jamaat capitalizing on regressive legislation and risking continued human rights violations?
Leaving aside the politics, the ICT law deserves to be drastically overhauled. Bangladesh is a state party of the International Criminal Court since 2010 due to a decision of the AL to the join the court. This was in keeping with Bangladesh’s support for the creation of a permanent international criminal court, which was expressed in 1974 at the Third International Law Criminal Conference hosted by the Bangladesh Institute of Law and International Affairs (BILIA). The ICC is currently investigating the alleged crime of deportation and other crimes faced by Rohingya refugees who were forced out of Myanmar and into Bangladesh.
In order to allow complementarity with the Rome Statute, the ICT law needs to be brought in line with international standards. Bangladesh should consider enacting legislation defining genocide, crimes against humanity and war crimes in line with international law. The 1st amendment needs to be overturned. The 15th amendment’s provision concerning Article-47 (3) needs to be overturned.
Quite simply put, the Constitution needs to be amended. The ICT law should either be redrafted or replaced by a comprehensive legislation on crimes under international law. As I have argued before, Bangladesh has to consider a comprehensive law on crimes under international law -- many countries have a Code of Crimes against International Law.
Umran Chowdhury works in the legal field.This article previously appeared in the author’s Substack.
