History and temporal jurisdiction of International Crimes (Tribunals) in Bangladesh

During the the Liberation War of 1971, Pakistani troops, local auxiliary forces and political collaborators perpetrated crimes against civilians, involving mass killings, atrocities, torture, disappearances, rape and the destruction of towns and villages. Following the surrender of Pakistani forces on 16 December 1971, approximately 82,000 members of the Pakistani armed forces and some 11,000 civilians were taken as prisoners of war (POWs) or internees by the joint command of the Bangladesh and Indian forces. The listed 195 alleged war criminals were amongst those POWs in Indian custody.

In the aftermath of its independence, the Bangladesh government enacted the International Crimes (Tribunals) Act, 1973, which provided for the establishment of special crime tribunals to try those who had committed, directly or indirectly, genocide, war crime, crimes against humanity.

In February 1974, Pakistan recognised Bangladesh as an independent state and the relationship between the two countries improved. In April 1974, following a tripartite agreement between Bangladesh, India and Pakistan, Bangladesh granted clemency to the 195 suspects, and they were subsequently repatriated to Pakistan.

Amendment to the Original ICT Act, 1973

Under Section 3(1) of the original International Crimes (Tribunals) Act (ICT Act) of 1973, a Tribunal was granted the power to try and punish any person irrespective of his nationality who, being a member of any armed, defence or auxiliary forces, commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the aforesaid crimes.

The 2009 amendment significantly broadened the scope of who could be prosecuted. It substituted the word "person" with the broader expression "individual or group of individuals". A subsequent 2013 amendment further expanded this by adding "or organisation" to the text, applying it retroactively to 2009.

As a result, the amended Section 3(1) empowers the Tribunal to try and punish any individual or group of individuals, or any organisation, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the aforementioned crimes.

Constitutional protection of the 1973 Act

The ICT Act of 1973 is a constitutionally protected special law. To guarantee this protection, Articles 47(3) and 47A were added to the Constitution via the First Amendment in 1973. Articles 47(3) and 47A(2) of the Constitution of Bangladesh deal with the prosecution and punishment of the perpetrators of international crimes. Any accused of such crimes do not have the right to challenge any provisions of the 1973 Act.

Article 47A goes further to limit the entitlement of any person to the constitutional guarantees ordinarily provided to those to whom a law specified in clause (3) of Article 47 applies. Such an accused person cannot: (a) "enjoy the protection of the law, and to be treated in accordance with law" (Constitution Art 31); (b) have protection against the retrospective application of any law in respect of trial and punishment (Constitution Art 35(1)(c)); (c) "have the right to a speedy and public trial by an independent and impartial court or tribunal established by law" (Constitution Art 35(3)); and (d) exercise the right to seek and receive any judicial enforcement of the constitutional guarantees (Constitution Art 44).

Jurists have sharply criticised these amendments. Soli Sorabjee, a former Attorney General of India, described the amendment as "draconian", whilst Moudud Ahmed, former law minister, concluded that "Articles 47(3) and 47A are unconstitutional as these are against the basic structure of the constitution."

Establishment of tribunal in 2009 (Initial Phase)

Thirty-five years after the original legislation, the Awami League government revived the idea of trials, declaring its intention to prosecute members of the political opposition for war crimes. In July 2009, the government amended the 1973 Act to extend jurisdiction over civilians, and eight months later, it established a three-member Tribunal, known as the International Crimes Tribunal.

Reconstitution of ICT after July–August 2024 Massacre

The student-led Anti-Discrimination Movement against the government's job quota system resulted in a mass uprising that caused the fall of the Sheikh Hasina regime. During the movement, law enforcement agencies used excessive force, resulting in the deaths of approximately 1,400 students and civilian protesters. To address the atrocities and crimes committed during the protest, the interim government reconstituted ICT-1 on 14 October 2024 and ICT-2 on 8 May 2025.

Whether jurisdiction of tribunal is limited to offences committed during 1971

It was frequently argued by the defence that the ICT Act, 1973 was originally promulgated to try 195 listed war criminals. In support of this contention, defence counsel relied upon the proceedings of the parliamentary debates. Jurisdiction of the tribunal was originally limited to any person who is a member of any armed, defence or auxiliary forces. However, in 2009, jurisdiction was expanded to include any individual or group of individuals regardless of affiliation with members of any armed, defence or auxiliary forces.

Crucially, Section 3(1) grants jurisdiction over crimes committed "whether before or after the commencement of this Act." This open-ended phrasing theoretically serves as a deterrent against ongoing or future violence, enforced disappearance, state-sponsored crime and gross human rights violations. It gives the ICT Act a continuing, permanent penal jurisdiction rather than a strictly retrospective one.

Despite the open-ended statutory text, pre-2024 jurisprudence heavily restricted the Tribunal's focus. In all cases decided before the fall of the Awami League government, formal charges were exclusively related to crimes committed "in the night of 25 March 1971 and lasted till 16 December 1971."

During this initial phase, both ICT-1 and ICT-2 repeatedly and unequivocally asserted that their mandate was to adjudicate listed crimes committed only during the 1971 Liberation War. There was no indication whatsoever that the ICT jurisdiction extended beyond 16 December 1971. The Appellate Division of the Supreme Court affirmed this time-bound interpretation. As noted by Justice S.K. Sinha in the Molla appeal judgment:

The Act, 1973 was enacted to provide for detention, prosecution and punishment of persons for, inter alia, the commission of genocide, crimes against humanity, war crimes, crime against peace and other crimes under international law providing for a domestic mechanism to address large-scale crimes committed in Bangladesh during the war of liberation in 1971.

Critics previously warned that the Act's open-ended temporal jurisdiction ("before or after") in a highly polarised political climate left the ICT vulnerable to political abuse. However, this concern was largely mitigated for over a decade because the tribunals imposed a strict self-restriction, limiting adjudications exclusively to 1971.

Following the July–August 2024 mass uprising, the reconstituted tribunals abandoned the historical self-restriction. Both the ICTs are now taking cognisance of offences—particularly crimes against humanity and enforced disappearances—committed during the Awami League regime between 2008 and 2024. In the recent Abu Sayed case, ICT-2 observed:

Within this enlarged statutory mandate, this Tribunal is lawfully seized with jurisdiction to inquire into and adjudicate upon the events of July 2024, commonly referred to as the "July Uprising."

The temporal jurisdiction—or ratione temporis—is a defining feature that distinguishes ad hoc international tribunals, the permanent International Criminal Court (ICC), and the domestic International Crimes Tribunal of Bangladesh (ICT-BD). Whilst most international criminal tribunals are strictly bound to a specific historical timeframe, the ICT-BD was uniquely designed with an open-ended temporal scope. Addressing this open-ended temporal scope, Tribunal-2 underscored:

The absence of the phrase "committed during the 1971 Liberation War" from the operative provisions of the statute is neither accidental nor insignificant. Rather, it manifests a deliberate legislative choice that the Act shall remain a continuing legal mechanism capable of addressing international crimes whenever and wherever such crimes occur within the jurisdiction of Bangladesh.

By avoiding a rigid sunset clause or a closed historical window in the 1973 Act, Bangladesh effectively created a permanent legal mechanism within its domestic system to prosecute international crimes. This allows the state to address both historic impunity and contemporary atrocities without having to draft entirely new legislation.

Mohammed Enam is a Barrister-at-Law, Advocate, Appellate Division, Supreme Court of Bangladesh.

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