THE interim government has decided to try the deposed prime minister Sheikh Hasina in the international crimes tribunal, accusing her of genocide and crimes against humanity during the student-led mass uprising in July 1–August 5, along with all those involved in these crimes. The first complaint against her was made with the probe agency of the international crimes tribunal on August 14. Later, many more cases have been lodged by private individuals against the deposed premier together with former ministers, law enforcers, and her party men. According to a UN report, nearly 650 people were killed, including children, and thousands were injured until 5 August.

The Hasina-led government domestically constituted the international crimes tribunal in early 2010 under the International Crimes (Tribunals) Act 1973 that was subsequently amended in 2009 and 2013 to probe atrocities during the liberation war against Pakistan in 1971. As a result, there is disagreement among lawyers about whether the tribunal is competent to try the war crimes of 1971 only or offences that took place afterward as well. There is no such bar in the ICT Act itself, while some jurists opined that the July-August massacre can be tried before the tribunal. However, some analysts advise going to the International Criminal Court, and others propose forming a hybrid ad hoc international crimes tribunal under the UN.

There were huge criticisms both politically, legally, nationally, and globally, including from Human Rights Watch, Amnesty International, specialists designated by the UN Human Rights Council, the War Crimes Committee of the International Bar Association, the UK Bar Association, the European Union, the US Unique Ambassador for War Crimes, etc., against the Sheikh Hasina-formed tribunals for lack of neutrality and non-compliance with the international legal standard. Even members of this current interim administration also critiqued boldly about the political motive, lack of due process and procedural fairness of the international crimes tribunal during the trial of top BNP and Jamaat leaders accused of war crimes. Critics pointed out that the act has been applied selectively, focusing on particular groups or individuals while ignoring others who may have committed the same crimes. The alleged selective prosecution undermined the credibility of those trials.

Thus, the tribunal as well as the law need massive legislative and institutional reform to comply with the international standard and ease the previous controversies against it. The law is outdated and has not been updated after the evolution of new international criminal law jurisprudence, especially after the establishment of the ICC. Within the existing framework, the trial of Sheikh Hasina and her allies will not be fair and neutral. There have been allegations that the trials conducted under the Act were politically motivated, particularly targeting members of opposition parties. This has led to concerns that the Act is being used as a tool for political vendetta rather than genuine justice.

Consequently, if Hasina’s trial also takes place under the same arrangement, then it will again be condemned and raised concerns of politically motivated revenge through the judiciary by the international community. The perpetrators of the July-August mass killing will also get the opportunity to vindicate the credibility of the trial even though they did not take all these criticisms into notice themselves earlier. Regrettably, no such initiative to reform the ICT has been taken by the current interim administration as of today.

Experts have identified both substantive and procedural flaws in the legal framework and practice of the tribunal. Human rights and legal monitor bodies have also urged to define crimes against humanity and genocide comprehensively in compliance with international criminal law and that due process rights for the accused be enlarged. The ICT Act, as amended, did not permit the accused a right against self-incrimination or a right to legal counsel when being questioned by the investigator. Moreover, the Act does not provide robust witness protection measures, which could discourage witnesses from coming forward or lead to intimidation, thus compromising the integrity of the proceedings.

Other loopholes include restrictions on interlocutory appeals to the Supreme Court and limitations on challenging the composition of the judicial bench. Earlier, the appointments of the prosecutors and judges of the tribunal were criticised due to their affiliation with the then government. Under Section 6(8) of the law, the formation of the tribunal cannot be challenged either by the prosecution or by the accused. Presently, there is no activity, prosecutor, or judge in the tribunal.

The defective application of the modes of liability and the ingredients of offences presents critical concerns as to the fairness of the trial. During Hasina’s regime, the tribunals also prohibited open access for foreign observers and journalists. Free observation is essential not only during trials but also in the pre-trial stage for transparency. Furthermore, the defence was not allowed to engage foreign lawyers or given adequate time to prepare its case, which needs to be addressed adequately now.

The tribunal’s significant limitation in defining the ‘crimes against humanity’ as it ignores considering the newest criminal law necessity of crimes against humanity. It needs to be committed in a ‘widespread and systematic’ attack against any civilian population. This jurisprudence emerged during the 1990s by the UN-backed ad hoc international criminal tribunals (the ICTY and the ICTR) and is regarded as the customary rule of international law. Subsequently, the Rome Statute also accepted this principle of customary international law and other internationalised criminal tribunals, prosecuting crimes against humanity. Therefore, the definition of crimes against humanity under the ICT Act does not comply with present and past customary law advancements, which are necessary for identifying and differentiating the same crimes from ordinary crimes.

Hence, in prosecuting and punishing such crimes, the law needs to include the customary law ingredients of crimes against humanity; otherwise, the crimes in question never be separated from domestic crimes of murder, extermination, torture, etc. If the prosecuting tribunal neglects to apply customary law requirements of crimes against humanity, the legitimacy of the tribunal sets substantial doubt in ensuring criminal justice for the parties. It is also argued that under the circumstances of the July-August massacre, the charge of crimes against humanity will be more convenient to prove before the tribunal than genocide, as it requires proof of intention to destroy, in whole or in part, a national, ethnic, racial, religious, or political group (S. 3(2)(c)).

The international crimes tribunal also put a legal obligation on the state to enact laws prohibiting and punishing the crime of genocide at the national level. According to the Constitution of Bangladesh, a treaty obligation is also conferred by the Genocide Convention, 1948, on Bangladesh as a contracting party to it.

However, the current interim administration has expressed their readiness to cooperate with the UN team to ensure a fair and impartial investigation and already sent an official letter to the UN High Commissioner for Human Rights to probe the recent student movement and uprising, along with finding out the causes of past and latest violence and recommendations for necessary measures to prevent such occurrences in the future. However, the UN has historically opposed the death penalty and campaigned for its abolition. The ICT Act has provisions for death sentences, among other suggested punishments.

Nevertheless, Section 8 of the ICT Act implies that an agency will be established by the government for the purpose of investigation. Now, a question may come whether the UN team will be a part of that agency. If not, then it is not clear under the existing provisions as to the acceptance of an investigation report prepared by the UN as the government-constituted agency is primarily responsible for investigation.

The recent anarchy in the courts raises serious questions relating to the fairness of justice and the rights of the accused. It is reported that former ministers, advisers, influential leaders of the fallen government, and judges of the Appellate Division were being attacked and assaulted by a section of pro-BNP-Jamaat lawyers and mobs and could not exercise their legal rights to be represented by lawyers while being produced after their arrest, which are completely contrary to due process and justice.

Also, there are suspicions about those arrests; for example, former state minister for posts, telecommunications, and information technology Zunaid Ahmed Palak had been detained at the airport on August 6 when he was trying to leave the country. Albeit the authority did not inform under which law they captured him at the airport. Later, police showed him arrested on August 14. As a result, his condition from 6 to 14 August is not certain, whereas constitutionally, police cannot detain anybody for more than 24 hours without producing him to the magistrate.

Furthermore, a number of dubious cases have been lodged criminalising hundreds of people from anger and resentment across the country, showing Sheikh Hasina’s aides without substantially detailing their involvement and role in the crime and without assessing the initial merit of the cases. It is apprehended that most of those cases will not be sustained ultimately. On the contrary, the media reported on the constraints victim families have faced to actually file a case at the police station. It reflects the overall weaknesses and fragile state of the country’s judicial system. A planned, well-narrated accusation supported by realistic evidence can broaden the way to get justice instead of filing a bunch of random cases without assessing their legal prospect and merit. The government must ensure victims can seek justice without intimidation.

In addition, international crimes like genocide and crimes against humanity are not usual domestic crimes like murder, grievous hurt, assault, etc. International crimes require special knowledge and expertise to be tried efficiently. The government has not disclosed their stance as to how they deal with the complaints, investigation, appointment of prosecutor, judges, trial, etc. in the ICT. The government may set up one or more designated contact points for victims of violations or their family members to seek assistance, information, and advice, as filing a flawless case is highly complicated, which private individuals cannot do. It would be helpful if more public information is disseminated about the options available for people to seek justice. A clear direction from the government can benefit private individuals who want justice to deal with the legal aspects effectively and efficiently.

It is expected that the present administration will ensure the rule of law and respect human rights for all, including the accused, after the exemplary fall of the repressive political regime and mass uprising. Criminals must be brought before justice adhering to proper and just legal proceedings.

Raisul Sourav is a doctoral researcher in law at the University of Galway School of Law, Ireland and associate professor of law at Dhaka International University