The ICT’s role as a ‘court of justice’ faces major challenges

The International Crimes Tribunal or ICT in Bangladesh has been a fairly controversial court from its beginning. But in recent days, the criticism has reached a higher level, as the nature of the cases brought before the Tribunal moves further away from its original intention. 

The sheer partisan nature of the ICT has also now been laid bare, with increasing concern about the manner in which a whole host of people are being implicated without due process. Questions are bound to be raised whether the tribunal is being used as a “court of convenience”, rather than a court of justice. 

The ICT has, since its re-formation after the fall of Awami League government in August 2024, convicted 62 people and sentenced 16 to death including former prime minister Sheikh Hasina.  

While the local media appear to provide little or no scrutiny of the proceedings at the ICT, once again it is left to international organisations and journalists to raise concerns about the apparent flaws in the work of the tribunal.  

Most recently, the New York-based rights group Human Rights Watch (HRW) in a report criticised the current work of the ICT, accusing the tribunal of “shoddy investigations and arbitrary allegations”, among other sins. 

“Bangladesh authorities are failing to uphold international legal standards at the country’s’ International Crimes Tribunal,” HRW, a long-time critic of the past Awami League regime, said in the opening line of its report published on Jul 28. 

“The failures risk denying justice to victims, undermining the rule of law, falsely imprisoning political opponents, and repeating the rights violations of the past,” said the HRW report.

Tajul Islam and Hasina

Most tellingly, HRW found that key passages from witness statements have been cut and pasted into several such testimonies. The report cites the case against Dr Hasan Mahmud and others, where a six-line paragraph “appears almost word-word in fourteen separate statements”. It further states that another, longer passage “appears virtually identically in nine further statements”. 

The HRW, which was highly critical of the prosecution of Jamaat-e-Islami leaders by the first ICT in the early 2010s, pointed to inherent flaws with the tribunal rules and procedures which deny a fair trial to the accused. 

“The law governing the tribunal still allows prosecutors to order the arrest of individuals without meeting any evidential threshold, to hold detainees for months without written reasons for their detention,” the report said.

“Trials in absentia are held without appropriate safeguards including defendants’ right to choose lawyers to represent them. And the tribunal restricts defence lawyers’ ability to cross-examine witnesses,” HRW said.  

One may recall Hasina was sentenced to death after a trial in absentia where the state-appointed lawyer was widely ridiculed for his utter incompetence. 

Human rights groups concluded that Hasina had not received a fair trial. They also wondered how families of the victims of police atrocities during the 2024 uprising could receive “justice” under such partisan prosecutions. 

Tajul Islam, the chief prosecutor of the ICT at the time of Hasina’s trial, was a known Islamist who represented Jamaat leaders at their trial in the tribunal. He was one of the co-convenors of AB Party, a new Islamist party which was widely regarded as an off-shoot of Jamaat. 

Aminul’s Head in Sand

The current chief prosecutor, the BNP-appointed Mohammad Aminul Islam has apparently chosen to bury his head in the sand and pretend there is nothing to see here. He has accused the HRW of “one-sidedness and partiality”. 

Aminul finds the “cut and paste” allegation regarding witness statements misleading. He thinks witness statements ought to be the same, as they are talking about the same incident. 

“There should be compatibility among witness statements. Witnesses will describe events as they happened. If these are the same, then what is the problem,” he said to reporters recently.  

The problem, of course, is not “compatibility”, but the fact that so many witnesses used practically the same language -- “word-for-word” according to HRW -- in their statements. This does not happen in real life. 

Often, people witnessing the same incident describe it in different ways, from their own vantage points, using their own understanding and language. Unless, of course, the witnesses are coached to follow a particular line or narrative. 

Aminul’s accusation against the HRW sounds particularly hollow when one considers the organisation’s past history. 

It was the HRW which carried out almost forensic scrutiny of the ICT trials of the Jamaat leaders more than a decade ago. Even in this current report, they referred back to those trials and cited what they considered as “lack of evidence, political bias, collusion between prosecutors and judges, and absence of basic due process protections”.

Same Old Changes

Bangladesh is supposed to be -- or expected to be -- a much changed country. The Awami League government was brought down by a street movement spearhead by students. There was a great deal of talk of a “new” Bangladesh, where the rule of law and respect for human rights would be paramount, in contrast to Hasina’s last 10 years in power.

However, as in so many things in Bangladesh, the more things change, the more things remain the same. 

The legal system in general, and the ICT in particular is a prime example of that. False cases, thousands of anonymous accused, arbitrary arrests of political opponents, detention for months on end without trial or charges or even anything resembling evidence to prove connection to a case, have continued as if nothing had happened. 

The ICT seems to have become the preferred “go to” court to rush through trials involving allegations of killings in 2024, and other cases of state repression under the Awami League. There are hundreds of murder cases implicating thousands of named and unnamed people in regular courts. But it is the ICT where the trials are being taken to conclusion rather rapidly. 

Is it because this is where the accused seem to have fewer rights and where the evidential threshold is kept low? Is this where cases, which could be put through regular courts, but are tied into “crimes against humanity” and brought before the ICT for quick resolution?  

What is Genocide?

While the chief prosecutor talks about HRW not “understanding” things, it is his understanding of international crimes could be brought to question. This is evident from the Shapla Chottor case. 

Over two days in 2013, May 5 and 6 in Dhaka and elsewhere, a series of clashes involving supporters and activists of Hifazat-e Islam and Jamaat on one side, and the law-enforcing agencies and Awami League activists on the other, left dozens dead. 

Human Rights Watch themselves created a list of 58 people who lost their lives in the clashes over those two days. Law-enforcing agencies were accused of use of “excessive force”. 

Aminul, however, has brought charges of crimes against humanity and genocide -- yes, genocide -- against 41 people including two journalists. This has happened when the crime of genocide has a clear and long-held definition endorsed by the UN: It is the “intentional and systematic destruction, in whole or in part, of a national, ethnic, racial, or religious group”.

How the judges of the Tribunal may view the apparent over-reaction by law enforcers to public order incidents as a “systematic” attempt to destroy or partly destroy “a national, ethnic, racial, or religious group”, remains to be seen. 

The ICT’s troubled history makes the current situation all the more baffling. 

Nuremberg to Jamaat Trials 

The ICT Act was promulgated in 1973, with the specific goal of prosecuting crimes of genocide, crimes against humanity and war crimes committed during the country’s War of Liberation in 1971. The Act was loosely based on the Nuremberg Trials of 1945 which put several senior Nazi military and political leaders to death for genocide and war crimes during World War II in Europe. 

At the time, Nuremberg was the only precedent for prosecution of such crimes, which have come to be known as “international crimes”, thus giving this essentially domestic court its title.  But the legal standards to prosecute such crimes had undergone significant changes since Nuremberg. By 2010, the ICT in Bangladesh was not in sync with prevailing international standards. 

Some amendments were introduced to the 1973 law, but many legal minds, particularly human rights organisations, felt they did not go far enough to bring it in line with international standards such as those applied at the ICC in the Hague. 

Despite these flaws, the Awami League government pursued the case against leaders of the Jamaat-e-Islami who were known, through collective knowledge and published reports, to have collaborated with and participated directly in the genocidal activities of the Pakistani military in 1971. 

While there was no doubt in many people’s mind that senior Jamaat leaders were, indeed, complicit in the genocide, particularly in the targeted killings of Bengali professionals and intellectuals towards the end of the war, the actual evidence was always going to be hard to gather four decade after the event. 

Not surprisingly, the convictions and death sentences produced strong criticism from human rights groups. Even many people who were pleased to see these Jamaat leaders being finally tried for crimes committed in 1971, could not reconcile themselves with the death sentences. 

Past history and current practices are giving rise to the question whether the cause of justice can truly be served by a special court which can be used as a political tool.

[Sabir Mustafa is a journalist and podcaster]