The International Crimes Tribunal of Bangladesh needs to be reformed

The International Crimes Tribunal of Bangladesh (ICT) is currently undergoing reorganisation, and with the appointment of a new chief prosecutor, Md Tajul Islam, reforms are underway. 

As a former defence counsel, Islam is well aware of the ICT's shortcomings and is working tirelessly to address them. 

Previously, the ICT faced issues such as non-compliance with customary international law and inadequate training for judges and prosecutors. This led to flawed applications of legal principles like Joint Criminal Enterprise (JCE). 

While a full explanation of the JCE is beyond the scope of this article, it can be summarised as a doctrine used to hold individual members of a group liable for crimes committed by the group. 

One significant criticism of the ICT was its failure to distinguish between JCE liability and aiding and abetting, leading to confusion due to their different mental requirements. This often resulted in severe penalties for relatively minor offences. 

The ICT's application of JCE sometimes assumed both the actus reus (physical element of a crime) and mens rea (mental intent) from mere association or presence, effectively creating guilt by association. 

This approach did not require proof of individual intent or contribution. Often, membership in a paramilitary force or political organisation was enough to infer guilt. This flawed interpretation of JCE even resulted in death sentences in the past. Modern criminal law rejects this crude form of liability, yet it was frequently applied by the ICT under the guise of JCE.

In a recent case, I successfully argued before the Appellate Division that mere influence over individuals cannot establish superior responsibility. Influence alone is insufficient to prove a super-subordinate relationship, which is critical for determining superior responsibility. 

The Appellate Division overturned the ICT's misinterpretation of this principle. There are several other aspects of superior responsibility that the ICT must reevaluate to ensure justice is served.

Additionally, there have been instances where the Appellate Division modified the rules of evidence to secure a death sentence for the accused. For example, prior inconsistent statements made by witnesses were not considered, even if made to an investigating officer. This sometimes rendered cross-examination meaningless.

If these legal misinterpretations are not corrected, defendants in the newly formed ICT may struggle to mount a proper defence. In the past, neither the media nor the legal community raised objections to these practices, as they were satisfied with the death sentences handed down to political opponents.

However, the situation has now changed. 

Members of the recently deposed government are likely to be tried by the ICT, and given the nature of the allegations against police, armed battalions, and government officials, the doctrines of JCE and superior responsibility will play a critical role in the upcoming trials. 

Therefore, the newly reconstituted ICT must ensure that these doctrines are properly defined to prevent the injustices of the past. The judgements of various international and ad hoc tribunals should also be taken into account. 

The concepts of JCE and superior responsibility do not have any domestic equivalents, and thus Bangladesh judges and counsel cannot solely rely on their previous experience. They need to be adequately trained in the concepts of international criminal law. 

The ICT now has the scope of shaping the development of international criminal law. For instance, regarding JCE, the ICT might consider adopting the theory of co-perpetration based on joint control, as highlighted in the International Criminal Court's Lubanga case. This approach offers a more precise alternative, focussing on individual contribution and awareness rather than mere association.

It is hoped that the new ICT will thoroughly examine recent developments in international criminal law and redefine JCE, superior responsibility, and other forms of liability in a modern, just manner. It is also expected that proper rules of evidence will be adopted. The reforms of the ICT present an opportunity for it to redeem itself and contribute meaningfully to the development of international law. 

The previous ICT has been described as "one of the darkest examples of transitional justice mechanisms," with critics calling its legal framework "outdated" and its understanding of international criminal law so poor that it is unlikely to have any lasting impact on international legal jurisprudence. This must change.

Ehsan A Siddiq is a practising advocate of the Supreme Court of Bangladesh. He obtained his LL.B. degree from LSE in 2001 and was called to the Bar of England and Wales in 2002. He was a defence counsel at the International Crimes Tribunal of Bangladesh and has been enrolled as counsel by the International Criminal Court, The Hague.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard