Sheikh Hasina faces ‘genocide’ charges in tribunal she formed

She helped establish the tribunal for crimes against humanity during the 1971 Liberation War

In the wake of recent violence stemming from the government's handling of quota reform protests and calls for its resignation, former Prime Minister Sheikh Hasina now faces legal scrutiny at the International Crimes Tribunal or ICT.

On Wednesday, a lawyer filed a petition calling for proceedings against Hasina, which, if accepted, would result in her being tried at the tribunal she helped establish for crimes against humanity committed during the 1971 Liberation War.

There is a divergence of opinions among legal experts on whether the ICT can adjudicate recent events beyond war crimes.

The student-led protests demanding reforms in government job quotas evolved into a government-toppling movement in early August, resulting in nearly 300 deaths within just three weeks due to widespread violence.

On Aug 5, during the protesters' march towards Dhaka, it was reported that Hasina had left the country.

Later that day, army chief Gen Waker-uz-Zaman announced her resignation. Hasina then travelled to Delhi via helicopter and military aircraft, where she remains.

Following Hasina’s resignation, a caretaker government led by Nobel laureate Muhammad Yunus was established, promising to address administrative and political reforms and hold accountable those involved in the violence.

In the past two days, three cases have been lodged against Hasina, with allegations including two separate charges of murder and one involving abduction and torture.

Law Advisor Asif Nazrul formally announced the initiative to prosecute the former prime minister and others at the ICT.

He said: "Under the International Crimes Tribunal Act, 1973, amended in 2009 and 2013, we are considering the mass killings in early August, alongside those responsible for these crimes, for prosecution at the ICT.

“We have conducted a preliminary study and found that the law allows for the prosecution of those involved in these acts, including those who issued orders or facilitated them."

Nazrul also mentioned the potential restructuring of the ICT's investigation agency to handle cases involving student deaths.

APPEAL TO TRIBUNAL AFTER THREE CASES

On Wednesday morning, Law Advisor Asif Nazrul said the interim government will take the initiative to hold trials on the ‘genocide’ committed during the Anti-discrimination Student Movement’s protests over the allegations brought against the deposed prime minister and other senior officials at the International Crimes Tribunal.

A few hours after his remarks, a lawyer moved the ICT with a plea to investigate Hasina over allegations of ‘murder, genocide, and torture’ during the quota reform movement.

The petition also appealed for investigations against nine others, including Awami League General Secretary and former roads minister Obaidul Quader.

Supreme Court Advocate Gazi Monowar Hossain Tamim filed the petition on behalf of Md Bulbul Kabir, the father of Arif Ahmed Siam from Bagerhat, who was killed during the government job quota protests.

Md Ataur Rahman, deputy director (Administration) of the ICT's investigation agency, confirmed the receipt of the petition.

He said the inquiry process would soon commence.

He told bdnews24.com: "We will carry out the necessary paperwork, visit the scenes of the incidents, and conduct investigations across the country. A report will be submitted afterwards."

Besides Hasina, Obaidul Quader, Asaduzzaman, Palak, and Arafat will also be investigated.

Former IGP Chowdhury Abdullah Al-Mamun, former DB chief Harunor Rashid, and former commissioner of DMP Habibur Ahmed will also be probed over the allegations of ‘murder, genocide, and torture’ during the quota reform movement.

According to Tamim, the investigative agency will probe the allegations and recommend a case if the allegations are substantiated.

A case will then be filed in the ICT.

THREE CASES FILED AGAINST HASINA

A murder case against Hasina was lodged on Tuesday and two more followed on Wednesday, accusing her of murder, abduction, and torture.

One of the murder cases filed at Kafrul Police Station on Wednesday was linked to the death of Foijul Islam Rajon, a student of Dhaka Model Degree College, during the quota reform protests in Mirpur.

Six former ministers, ex-MPs, and top police officers are also among the 23 others accused in the case filed by Rajon’s brother, Md Rajib, 32, at Dhaka Chief Metropolitan Magistrates Court.

Judge Ahmed Humayun Kabir took cognisance of the charges and ordered Kafrul police to register it as a case in which Hasina is the prime accused.

The other accused include Obaidul Quader, general secretary of the Awami League; Asaduzzaman Khan, former home minister; Anisul Huq, former law minister; Jahangir Kabir Nanak, former minister of textiles and jute; Hasan Mahmud, former foreign minister; Mohammad Ali Arafat, former state minister for information and broadcasting; Salman F Rahman, former advisor to ex-PM; and various other political figures and former high-ranking officials.

At least 500 unnamed AL leaders and activists have also been implicated.

Earlier on Wednesday morning, Advocate Sohel Rana filed another case against Hasina and four other senior officials, accusing them of abduction and torture.

After hearing his complaint, Dhaka Metropolitan Magistrate Farzana Shakil Sumu Chowdhury ordered police to receive it as a case.

In addition to Hasina, former home minister Asaduzzaman, former law minister Anisul, former IGP Shahidul Haque, former RAB director general Benazir Ahmed and 25 unidentified RAB members were named in the case.

Earlier on Tuesday, a murder case was filed against Hasina and seven others at a Dhaka court over the death of a trader allegedly gunned down by police in Mohammadpur.

The court ordered Mohammadpur Police Station to consider the complaint as a case too.

INTERNATIONAL CRIMES TRIBUNAL

The International Crimes (Tribunal) Act, enacted in 1971 under the Bangabandhu Sheikh Mujibur Rahman administration, was designed to prosecute those responsible for crimes against humanity. In response to a long pause in trials, the Sheikh Hasina administration introduced amendments to the Act after taking office in 2009.

On Mar 25, 2010, Bangladesh established its first International Crimes Tribunal with Justice Nizamul Haque as chairman, alongside Justice ATM Fazle Kabir and retired district judge AKM Zahir Ahmed as members. A second tribunal was formed on Mar 22, 2012, chaired by Justice Obaidul Hassan, with Justice Mozibur Rahman Miah and Justice Shahinur Islam as additional members.

The second tribunal issued its first judgment on Jan 21, 2013, sentencing fugitive war criminal Maulana Abul Kalam Azad to death.

On Feb 5, 2013, Jamaat-e-Islami leader Abdul Quader Molla, known as the 'Butcher of Mirpur,' was sentenced to life imprisonment, sparking widespread public protests.

In response to the Ganajagaran Mancha movement, the Tribunal Act was revised to balance the appeals process for both the defence and prosecution.

The Supreme Court upheld Molla's execution on Dec 12, 2013.

As of Sept 15, 2015, the International Crimes Tribunal-2 has ceased operations after delivering 11 verdicts, including those against Maulana Azad, Quader Molla, Kamaruzzaman, Mir Quasem Ali, and Ali Ahsan Mohammad Mujahid.

The International Crimes Tribunal-1 remains active, having adjudicated 44 cases related to 1971 crimes against humanity, with significant verdicts against Jamaat leaders Ghulam Azam, Matiur Rahman Nizami, Delawar Hossain Sayedee, and Bangladesh Nationalist Party leader Salahuddin Quader Chowdhury.

Of the 131 convicts from the first 51 cases, 91 have been sentenced to death.

To date, six individuals, including five leaders of Jamaat, the party that opposed Bangladesh’s independence in the 1971 Liberation War, and one BNP member, have been executed following their appeals.

WHAT IS THE JURISDICTION OF ICT?

According to former ICT prosecutor Advocate Rana Das Gupta, it will not be possible to prosecute the former premier and those involved under a tribunal which was formed to try war crimes.

He told bdnews24.com: “The International Crimes Tribunal was formed to try war crimes. But no war took place in Bangladesh after 1971.”

“I don’t understand how the trial can be done here,” added Dasgupta.

However, Advocate Tamim believes it is possible to try the crimes in that tribunal following the International Crimes Tribunal Act.

Das Gupta explained: “There will be three judges under this tribunal, along with a prosecution team, and an investigation agency.”

“Now, we can see that a murder case has been filed against Sheikh Hasina. It was handed over to the PBI (Police Bureau of Investigation) for investigation after being treated as an FIR. If you wish to file a case in the International Crimes Tribunal, once the case is filed, it has to be sent to the investigative body of the tribunal.”

“This does not fall within the purview of Bangladesh’s investigative agencies. On the other hand, the murder case was filed under Section 302. This normal panel court does not apply to the law of international tribunal.”

But, Adv Tamim insisted: “According to Section 3, subsection 1 of the ICT Act 1971, ‘targeted people’ can be tried for murder, genocide, physical and mental torture. Here, genocide was carried out on the people participating in the mass movement – not a single individual.

"The preamble of this law clearly states that any murder, genocide, or torture before and after the passing of the law can be tried in this tribunal. 56 trials have already been conducted here. This is 'settled'. There will be no problem in trying.”

“The way people seeking freedom during 1971 were the target of a genocide, the same ‘targeted people’ were killed during this movement; hence it is genocide,” said Tamim.

Referring to the case filed against Hasina under Section 302 of the Penal Code, he said: "In this case, the case under Section 302 of the Penal Code cannot proceed. Because no specific person was killed. Here, a group of people have been targeted for killing. So it's genocide. Section 302 cases should be brought here instead.”

[Writing in English by Arshi Fatiha Quazi, Fariha Bristy, and Ruhshabah Tabassum Huda]