ICT only judicial forum for trying crimes like enforced disappearances: Inquiry commission

The International Crimes Tribunal is the only judicial forum in Bangladesh for trying crimes against humanity, such as enforced disappearances, as it has a non obstante clause embodied in its Section 26, according to the interim report of the Commission of Inquiry on Enforced Disappearance that was submitted to Chief Adviser Professor Muhammad Yunus yesterday (14 December). 

According to the provisions of the law, the International Crimes (Tribunals) Act, 1973 is an overriding law, that is to say, it assert its supremacy over any conflicting laws, such as the Army Act, 1952, in trying the perpetrators of crimes against humanity.

Army Act, 1952 neither recognises enforced disappearance or abduction as crimes nor does it recognise superior or command responsibility of the offenders. In contrast, the International Crimes (Tribunals) Act, 1973 recognises both.

So, the non-obstante clause would allow even serving officers to be tried by the International Crimes Tribunal, given the particular deficiencies in the Army Act, 1952 in the context of abduction and other allied crimes, reads the report.

Currently, the criminal law in Bangladesh lacks specific provisions to specifically address the crime of enforced disappearances.

Despite having no specific provision for enforced disappearances, the Penal Code, 1860, addresses offences related to wrongful restraint (Sections 339, 341) and wrongful confinement (Sections 340, 342-348), as well as kidnapping, abduction, slavery, and forced labour (Sections 359-374).

However, on 29 August 2024, Bangladesh acceded to the International Convention for the Protection of All Persons from Enforced Disappearance. As a State Party to this instrument, Bangladesh is now obligated to prevent enforced disappearances, combat impunity for such crimes, and incorporate provisions to criminalise enforced disappearances into its domestic laws, as required by Article 4 of the Convention, reads the commission's report.

Further obligations include ensuring proper investigation, safeguarding victims' rights to justice (Article 3), and providing victims and their families with reparation and prompt, fair, and adequate compensation (Article 24).

By acceding to the Convention, Bangladesh has undertaken a legal and moral obligation to uphold these principles, ensuring justice for the victims and their families while taking concrete steps to prevent future recurrence of enforced disappearances.

Now in order to uphold this obligation Bangladesh will need to try the alleged perpetrators in courts where: enforced disappearance, of which abduction is an essential ingredient, is a recognised crime; command/superior responsibility is a recognised legal doctrine; and continuing crime is an accepted concept.

It is a matter of relief that the concept of a continuing offence is established in Bangladesh's legal framework.

Enforced disappearance is recognised as a continuing crime until the whereabouts or fate of the victims are determined, their remains are recovered, or justice is served. This highlights the critical importance of actively searching for victims and upholding the families' right to know the truth about the circumstances of the disappearance, states the report.

Meanwhile, a potential tactic that high-ranking officials with may use to escape accountability is fleeing Bangladesh and retiring to other countries, believing that they will enjoy impunity due to the complexities of prosecuting them In foreign jurisdictions. This has already been the case with several perpetrators whom the commission considers prima facie responsible for acts of enforced disappearance, including Sheikh Hasina herself.

However, the commission cites the case of a former Syrian official in the United States as a potential way forward to ensure that justice is still served.

On 8 August 2024, a former Syrian pprisonchief was charged with immigration fraud for concealing his involvement in crimes against humanity. He had falsely claimed to have no criminal history when applying for US citizenship, a clear violation of immigration laws that require full disclosure of such information. Authorities used this misrepresentation as a legal basis to strip him of his citizenship and initiate deportation proceedings.