ICTA amendments: Enhanced justice, expanded jurisdiction

The International Crimes (Tribunals) Act 1973 (ICTA) is a landmark in Bangladesh's judicial history. It was designed to address atrocities from the 1971 Liberation War. Despite its significance, the ICTA has been criticised for procedural gaps and outdated definitions, falling short of international standards like the Rome Statute of the International Criminal Court (ICC).

To address these issues, the 2024 amendments modernised the law by criminalising enforced disappearances, introducing command responsibility and expanding jurisdiction to include military and law enforcement personnel. These reforms also enhance protections against torture, ensure evidence disclosure, and provide compensation for victims.

Aligning with the Rome Statute

The 2024 amendments to Bangladesh's International Crimes (Tribunals) Act 1973 align the nation's legal framework with the Rome Statute of the International Criminal Court (ICC), enhancing its scope to address modern international legal standards. Originally focused on prosecuting crimes from the 1971 Liberation War, the reforms update definitions, jurisdiction, and accountability mechanisms.

These amendments reinforce Bangladesh's commitment to global justice, preventing atrocities and fostering transparency and accountability in governance by criminalising acts of aggression and holding political and military leaders accountable.

Command responsibility: An evolving doctrine

Command Responsibility, a cornerstone of international law, holds military and civilian leaders accountable for crimes committed by their subordinates if they knew or should have known about such crimes and failed to act. Codified in Article 28 of the Rome Statute, it mandates that superiors prevent or punish crimes under their control.

This principle was first articulated during the Tokyo Trials (1946–1948), where General Hideki Tojo was convicted for failing to prevent atrocities, and later expanded in Prosecutor vs Jean-Paul Akayesu (ICTR, 1998), where a Rwandan mayor was held liable for genocide. The ICTY case Prosecutor vs Blaskić (2000) reinforced military commanders' duties, while the ICC's Prosecutor vs Lubanga (2012) extended accountability to crimes like child soldier recruitment.

In 2024, Bangladesh amended its International Crimes (Tribunals) Act to align with these global standards. The reforms incorporate command responsibility for both military and civilian leaders, imposing proactive duties to prevent atrocities and addressing accountability for failures to act.

Redefining crimes

The 2024 amendments of the ICTA introduce significant reforms to align Bangladesh's legal framework with the Rome Statute and address gaps in the original law. These updates provide clear definitions for key international crimes, including war crimes, crimes against humanity, enforced disappearance, genocide and aggression.

War crimes now explicitly include breaches of the Geneva Conventions, targeting civilians and unlawful destruction of property, bringing the law in line with global standards. Crimes against humanity have been expanded to encompass sexual slavery, enforced sterilisation and human trafficking. 

Enforced disappearance is criminalised for the first time, covering state-led arrests, detentions or abductions, and the refusal to disclose the victim's fate or location, consistent with the Rome Statute.

The definition of genocide has been clarified to emphasise intent and scale, strengthening prosecutions. The Act explicitly criminalises aggression, conspiracy and incitement, ensuring consistency with international law. 

The amendments broaden the scope of accountability, extending the Act's provisions to a wide range of law enforcement and military bodies, including the Army, Navy, Air Force, Police, RAB, Border Guard Bangladesh, Coast Guard and Ansar, as well as intelligence agencies involved in national security or law enforcement. 

Victim-centred reforms: Reparations for victims

The 2024 amendments to the International Crimes (Tribunals) Act introduce victim-centred provisions focused on justice and recovery for survivors. These reforms include mechanisms for restitution and compensation, allowing victims to seek financial redress and recover damages from the convicted individual's assets. 

Additionally, the tribunal's mandate now extends to rehabilitation programs, providing survivors with access to support services aimed at helping them rebuild their lives after enduring atrocities.

Provisions for observers, transparency and international cooperation

A significant reform under the 2024 amendments is the introduction of provisions allowing representatives from United Nations bodies, national and international human rights organisations, and other civil society groups to attend public hearings and trials. This amendment ensures that the tribunals meet international standards of transparency and accountability, allowing for external scrutiny of the proceedings. 

It aligns with the principle of universal jurisdiction, enabling the prosecution of international crimes regardless of where they were committed.

Foreign counsel, enhanced rights of the accused and virtual hearings

The 2024 amendments significantly strengthen the rights of the accused and enhance trial fairness in Bangladesh. Key reforms include protections against self-incrimination and arbitrary detention, guarantees of fair trial rights under Section 17, and the right to remain silent without adverse inference. 

Inspired by international jurisprudence, such as Prosecutor vs Akayesu (ICTR, 1998), the amendments ensure adequate defence, timely trials, and lawful evidence collection, barring evidence obtained through rights violations.

Digital evidence, such as CCTV footage, is now admissible under stricter standards, while provisions for witness anonymity ensure safety. The allowance of foreign counsel, with Bangladesh Bar Council approval, introduces global expertise, echoing practices in tribunals like the ICTY and ICTR and cases like Charles Taylor's at the Special Court for Sierra Leone.

Liability for crimes: Command responsibility and accountability of superior officers

The 2024 amendments to the International Crimes (Tribunals) Act 1973 underscore the principle of command responsibility, holding superior officers criminally accountable for failing to prevent or punish crimes committed by their subordinates. 

Liability extends to individuals and entities, including the Army, Navy, Air Force, Police, RAB, Border Guard Bangladesh, Coast Guard, Ansar and intelligence agencies, for directly committing, inciting, aiding or facilitating international crimes. This comprehensive framework ensures accountability for international crimes within Bangladesh's jurisdiction.

This principle is exemplified in The Prosecutor vs Jean-Pierre Bemba Gombo (ICC-01/05-01/08), in which the ICC convicted Bemba, a military leader, for failing to prevent or address atrocities committed by his forces in the Central African Republic. 

Interlocutory appeal

The introduction of Section 21A, permitting interlocutory appeals before the Appellate Division of the Supreme Court, introduces a crucial check on the tribunal's power. This provision allows parties to challenge any order of punishment for contempt of the tribunal within 30 days, ensuring that the tribunal's authority is not misused and that there is a mechanism to address procedural errors or violations of due process.

The Act allows appeals against interim orders, including contempt rulings, for the first time. This aligns with international norms by providing a mechanism for judicial review. It ensures an added layer of accountability for tribunal decisions, safeguards against arbitrariness and strengthens its credibility.

Expansion of jurisdiction

The amendments to the International Crimes Tribunal (ICT) expand its jurisdiction to include crimes committed within and beyond Bangladesh by individuals associated with disciplined forces or intelligence agencies. 

This empowers the tribunal to prosecute not only traditional war crimes but also crimes like enforced disappearances and forced displacement, reflecting the principle of universal jurisdiction.

As established in Prosecutor vs Tadić (ICTY, 1995), international tribunals can assert jurisdiction over cross-border crimes impacting global peace and security. Bangladesh's adoption of this principle aligns with Article 12 of the Rome Statute and global transitional justice practices, such as the Pinochet Case in Spain.

Accountability for political entities

The amendments introduce measures to hold political parties accountable for involvement in crimes against humanity. This provision aligns with the Rome Statute's emphasis on leadership accountability but has sparked debates regarding the balance between collective and individual responsibility.

However, the provision raises constitutional concerns, particularly regarding freedom of association, as guaranteed under Article 37 of Bangladesh's Constitution. There are also potential risks of selective application, with concerns about the politicisation of the process, which may undermine the measure's fairness and integrity.

Evidence submission and admissibility in tribunal proceedings

The recent amendments to the legal framework governing tribunal proceedings emphasise a broader approach to submitting and evaluating evidence. Under the new provisions, the tribunal is authorised to accept a wide array of evidence, including digital data, video recordings, CCTV footage, drone data, cell phone records and other electronic forms of evidence. 

This evidence can be generated, stored or transmitted through magnetic, electromagnetic, optical or computer memory formats. The tribunal can assess the relevance, probative value and admissibility of such evidence, including data and records from digital devices, to help establish the truth in a case.

In addition, the tribunal now has explicit authority to order the submission of evidence it deems necessary for determining the truth, even if it was not submitted by the parties involved.

However, the tribunal must ensure that the evidence admitted does not unfairly prejudice the trial process. It must weigh the probative value of the evidence against any potential harm to the fairness of the proceedings. Any challenges to the relevance or admissibility of evidence must be raised promptly, either at the time of submission or when new information arises.

Furthermore, the tribunal must justify its rulings on evidentiary matters, ensuring transparency and accountability.

Recording and broadcasting of tribunal hearings

The amendments also introduce provisions for greater public access to tribunal hearings through audiovisual recordings and broadcasting. Tribunals now have the discretion to record hearings in audio or video format, which can be used as a comprehensive record of the proceedings. 

The tribunal may also decide to broadcast hearings or parts of them via the Internet or other platforms, ensuring that the process is accessible while balancing the protection of sensitive information.

This approach to recording and broadcasting hearings reflects an effort to enhance transparency, accountability and public engagement. Making tribunal proceedings more accessible to the public can increase public understanding of the justice process and foster greater trust in the tribunal system.

Addressing trials in absentia

The practice of conducting trials in absentia has raised concerns about fairness, as the accused is often unable to present a defence. The 2024 amendments propose re-evaluating this practice, introducing rigorous procedural safeguards to ensure fairness is upheld, even when the accused is not present in the courtroom.

While the amendments represent significant progress, challenges to full implementation remain. One major concern is the continued use of the death penalty in Bangladesh, which conflicts with the ICC's preference for abolition.

The 2024 amendments to Bangladesh's International Crimes (Tribunals) Act represent a transformative step in strengthening the nation's justice system. The reforms will strengthen the nation's justice system by incorporating principles from the Rome Statute and lessons from international tribunals. 

Kollol Kibria is an advocate, human rights activist, and political analyst. He can be reached at [email protected] 

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.