Sheikh Hasina's Frankenstein: Bangladesh's tribunal that turned on its creator

Bangladesh’s International Crimes Tribunal (ICT) on Monday sentenced the country’s ousted Prime Minister Sheikh Hasina to death for committing what the court described as crimes against humanity. Hasina was convicted on three out of five charges : Incitement of violence, issuing an order to kill and inaction over the July protests, which took a violent turn.

Other than Hasina, former Home Minister of Bangladesh, Asaduzzaman Khan Kamal, was also sentenced to death. Meanwhile, former inspector general of police Chowdhury Abdullah Al-Mamun, who later became an approver, received leniency and was sentenced to five years in prison.

All the convicts will now have 30 days to appeal the verdict to the Bangladesh Supreme Court. However, they will have to come back to Bangladesh and surrender themselves to the authorities to make that appeal. After the appeal is made, the Supreme Court will have 60 days to uphold or overturn the ICT’s ruling.

The irony is that it was Hasina who established the court in the first place, and it was her father, Bangabandhu Mujibur Rahman , who laid the foundation for the tribunal. Over the years, many raised concerns over different aspects of the court. Many questioned the tribunal’s tendency to award capital punishment and conduct trials in absentia. While the Hasina government kept on defending the tribunal, ultimately it was the same court that ended up giving her a death sentence.

Three phases of ICT

The birth of the concept - International Crimes (Tribunals) Act 1973

During the Bangladesh Liberation War in 1971, it was estimated that 300,000-500,000 to as many as 3 million people died in the war. While the death toll had been hotly contested, it was definitive that war crimes and crimes against humanity were committed not only by the Pakistani troops but also by the pro-Pakistani elements within the country.

Even before the court was established, a large number of people faced trials in the legal judicial institutions established right after independence. Following the surrender of the Pakistan Army in December 1971 to the Indian forces, Sheikh Mujibur Rahman’s Awami League came to power in the country. It was they who began the trials.

The International Crimes (Tribunals) Act, 1973, which provided the legal basis of the ICT, was passed by the Bangladeshi parliament on July 20, 1973. The Act provided for the prosecution of genocide, war crimes, crimes against humanity, and other international crimes.

At that time, the Bangladeshi parliament described the Act as “the first national war crimes law in the world”, established even before the International Criminal Court existed. However, the ambition to form the tribunal went into a standstill following a military coup in 1975, in which Mujibur was assassinated.

The rebirth of the idea and the establishment of the ICT

After Rehman’s assassination , the Act remained dormant and hidden in the pages of the country’s Constitution. It re-emerged only after his daughter, Sheikh Hasin, became the Prime Minister of Bangladesh in 2008, leading the Awami League to power.

In 2009, Hasina moved to revive the 1973 law, making amendments to facilitate modern trials. ICT-1 was formally established on March 25, 2010, and ICT-2 was constituted on March 22, 2012 to manage the growing caseload. This time, there was a wider political context to consider.

One such instance was the fact that the passage of time reduced the number of people who were still alive to be investigated. Over the years, the tribunal deepened the already considerable divisions within the Bangladeshi political elite.

Hasina’s political tool: The third phase

Before Hasina, 10 prominent people had been prosecuted by ICT for the war crimes they were accused of committing during the Bangladesh Liberation War. Three of them were not given a death Sentence, and except for one person, all others died in prison.

However, the court adjudicated 53 cases, resulting in 99 death sentences and jail terms. While some of these death sentences were carried out, others were appealed. As of now, there has been only one case where the Appellate Division overturned the death sentence given by the ICT.

But the most interesting trend was the fact that before the Hasina trial, the tribunal tried only her rivals. Out of the 10 prominent political leaders tried in court, three came from the Bangladesh Nationalist Party (BNP), the party of Sheikh Hasina’s longstanding political rival, former Prime Minister Khaleda Zia, and five were from Jamaat-e-Islami , which has often allied with the BNP. Over the years, both parties rejected the legitimacy of the tribunal.

Criticism of the tribunal

While supporters argued that the tribunal is helping in “draining the poison of 1971 and would eventually help in breaking the cycle of anti-national elements,” sceptics worried that these trials often stoke conflict and instability across the country, with BNP and JeI protesting the trials of their leaders.

While many accused the Hasina regime of using the court as a political tool, many also raised legal concerns. The most common of them are as follows:

The tendency to award death punishments

As mentioned earlier, the ICT handed down death sentences in the majority of cases that it tried. This raised concern over the court’s tendency to hand down capital punishment to the defendants. Although the international community has yet to agree on the need for a prohibition on capital punishment, the tribunal has often been criticised by human rights groups over the same.

Conduct of trial in absentia

Like Hasina’s case, the ICT has tried many in absentia, with the accused missing out on the right to defend themselves in court, an internationally recognised human right. It is pertient to note that neither the ICC nor the ICTY, ICTR, nor the Special Court for Sierra Leone permits trials in absentia.

The need to facilitate more amicus curiae briefs

An amicus curiae brief is a legal document filed by a person or group who is not a party to a case but has a strong interest in the outcome. Many have raised concerns over the lack of such briefs, especially from experts on international criminal law.

They argue that the lack of such briefs could undermine the credibility of the judgments passed by the Tribunal, as other international tribunals and courts, including the ICC, ICTY, ICTR and SCSL, mandate their trial chambers to seek, receive and consider briefs on difficult points of interpretation.

While Rule 41 of the Rules of Procedure of the ICT-BD Act empowers a judge to seek and receive independent opinions on points of law, it has never been invoked.

Other issues: Fairness of trial and human rights

While the Human Rights Watch welcomed the establishment and the conduct of the court, it often raised the need for amendments. In the past, the group has raised the following complaints :

• Cases are not fairly selected and tried

• The rules of evidence are inadequate

• The process for appointing the judges has lacked independence

• Elements of the appeal process have been unjustifiably restricted

• Defence lawyers and witnesses are being harassed by the authorities

Hasina’s Frankenstein

For years, ICT remained one of Hasina’s most powerful judicial instruments – a court she created, expanded and heavily defended. In 2010, Hasina delivered an address to the United Nations , saying the International Crimes Tribunal has been set up to try persons responsible for war crimes and crimes against humanity during the Liberation War of Bangladesh in 1971.

“This action is in accordance with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing to justice the perpetrators of war crimes, genocide and crimes against humanity,” Hasina said in her speech at the world body. “I believe that only justice can heal the unforgivable, deadly wrongs of the past," she added.

In 2018 , Hasina went on to target BNP founder late Ziaur Rahman and her rival Khaleda Zia , insisting that even the “patrons of war criminals should also be tried for their crimes during the 1971 Liberation War,” since she believed both were equally guilty.

“We have held the trial of war criminals and executed the court verdicts. I think it’s necessary to equally try those who rewarded the war criminals, gave the national flag to their hands and made them ministers in independent Bangladesh,” Hasina said at that time.

“The war criminals carried out the genocide. But those who patronised them, made them ministers, MPs and created scope for them to do politics are equally guilty,” she added. However, Zia and her father, despite having their share of legal struggles, were never tried in the international court.

How it turned on her

While Hasina has been an ardent advocate of ICT, things changed when her government was toppled in August 2024. After the interim administration under the leadership of Muhammad Yunus came to power, it reconstituted the tribunal to investigate the killings and abuses linked to the government’s crackdown on protesters.

Hence, in an unprecedented reversal of roles, the court that Hasina created tried her as well as the former home minister and police chief for crimes against humanity.

Another irony was that the parties, BNP and JeI, which long rejected and opposed the court and its rulings, celebrated when Hasina received a death sentence. In the hindsight, Hasina ended up creating a Frankenstein, which handed over her death sentence. Now the ball is in Hasina’s court in terms of how she will deal with the verdict. She has rejected the legitimacy of the trial. But will she appeal against the order?