Introduction
The International Crimes Tribunal (ICT) Ordinance, enacted in 1973, was created to prosecute individuals charged with genocide, crimes against humanity, war crimes, and other breaches of international law. To modernise and enhance the effectiveness of this legislation, the Ministry of Law, Justice, and Parliamentary Affairs has introduced amendments (Abdullah, 2024b). Following the downfall of the Hasina regime due to the July Revolution, the interim government took decisive action by amending the ICT-BD ordinance. These amendments aimed to ensure that perpetrators, particularly those involved in the July Revolution, could be held accountable for their actions. Now, the question that has arisen along with the July Revolution is whether the revised ICT-BD ordinance can facilitate transitional justice for the Bangladesh Genocide.
Background
Bangladesh has conducted specialised trials to address specific international crimes committed during its 1971 liberation war. These trials aim to provide transitional justice for the victims by ending the prolonged impunity that the perpetrators have enjoyed in the post-conflict era (Islam, 2019, p. 1). To prosecute and punish local collaborators of the Pakistani army, the ICT-BD national trial mechanism was established (Modok, 2022, p, 243). The special trial in Bangladesh marks the first national prosecution of international crimes since the establishment of the International Criminal Court (ICC), emerging as a significant national and international milestone (Islam, 2019, p. 1).
Following Bangladesh’s independence, there were high expectations that those responsible for the atrocities would be swiftly prosecuted (Mollah, 2020, p. 654). Despite initial efforts to prosecute war criminals, the process was halted in the mid-1970s due to political changes and the repatriation of Pakistani prisoners of war. The trials resumed when the Awami League (AL) government took power in 2009. Nevertheless, the regulation of the ICT-BD as a justice mechanism under the AL faced significant controversy.
The Previous ICT-BD Ordinance
The ICT Act was previously utilised by the AL government to initiate significant prosecutions against individuals accused of international crimes during Bangladesh’s independence war. Still, despite these efforts, the trials fell significantly short of meeting international standards (Ganguly, 2024). Commentators and critics have voiced concerns about the ICTs of Bangladesh, arguing that the trials focus solely on local collaborators while neglecting the 195 major accused Pakistani military personnel, despite having specific evidence and confirmation of their involvement in committing genocide during the Sheikh Hasina regime. (D’ Costa and Hossain 2010, p. 331–359; Hoque, 2016, p. 1–19; Linton, 2010, p. 191–311).
A significant issue with the original 1973 ICT Act was that its definitions of crimes against humanity and genocide did not align with internationally accepted standards (Bergman, 2024). For example, the act did not specify that killings had to be part of a widespread or systematic attack against civilians or that the accused needed to possess knowledge of the attack. Furthermore, the act allowed for the crime of genocide to be committed with the intention to destroy a ‘political’ group, which is not recognised in international definitions (Bergman, 2024). Bangladesh’s International Crimes Tribunals (ICTs) have faced criticism for their purely domestic nature, being staffed exclusively by Bangladeshi judges and prosecutors rather than international ones (Mollah, 2020, p. 661– 662).
Concerns have also been raised about the restricted availability of foreign legal counsel, which some argue violates international fair trial standards by denying the engagement of foreign attorneys (Mollah, 2020, p. 661- 662). Moreover, there are allegations of potential political bias, with critics suggesting that the government in power may influence judges and prosecutors due to their political appointments by the ruling party (Mollah, 2020, p. 661- 662).
Additionally, while some rape victims received support and understanding, others faced stigma and further harassment, which exacerbated their trauma and reopened old wounds (Modok, 2022, p. 248). Other concerns have also been raised about the ICT Act trials, including failures in evidence gathering, the independence of judges, collusion with prosecutors, witness tampering, denial of proper defence rights, forced disappearances of the accused’s relatives, and the use of the death penalty (Ganguly, 2024).
New Amendment and Changes in ICT-BD
After the Hasina regime fell during the July Revolution, the interim government took initiatives to amend the ICT-BD ordinance. Initially, the ICT Act amendment proposed that if a political party were accused of such crimes and the court deemed it necessary, the court would have the authority to recommend punitive measures to relevant authorities. However, these recommendations would not involve direct punishment by the court and would be referred to the appropriate bodies for further action (Abdullah, 2024a). Subsequently, on November 20th, 2024, the Advisory Council approved the draft International Crimes Tribunals (Amendment) Ordinance 2024, removing the proposed provision that allowed the tribunal to recommend punitive measures against organisations or political parties (TBS Report, 2024).
The reason for this amendment is that punishing any political party could lead to unnecessary scrutiny and doubts about the fairness and legitimacy of the trials conducted under the law (Staff Correspondent, 2024a). Furthermore, the council of advisers has given its final approval in principle to the draft ordinance of the International Crimes Tribunals (Amendment), with necessary amendments subject to review by the legislative and parliamentary affairs division (Bangladesh Sangbad Sangstha, 2025). The 2025 draft aims to update the International Crimes (Tribunals) Act, 1973, to align it with current standards (Bangladesh Sangbad Sangstha, 2025). The approval was announced at a meeting chaired by Professor Muhammad Yunus at the Chief Adviser’s Office, according to a media release from the Cabinet Division (BSS, 2025).
The recently published ordinance amending the International Crimes (Tribunal) Act of 1973 has elicited mixed reactions from those invested in ensuring fair and credible trials. While there are aspects to celebrate, there are also notable disappointments (Bergman, 2024). A significant shortcoming of the new ordinance is its failure to remove the provision that allows the tribunal to impose the death penalty following a guilty verdict, as retaining the death penalty could have far-reaching negative implications for the international credibility of the trial process (Bergman, 2024).
Additionally, this decision may deter many international lawyers who might otherwise assist the prosecution, and it might also impact the involvement of Toby Cadman, the recently appointed special prosecutorial adviser, who has yet to comment on the decision (Bergman, 2024). The International Crimes (Tribunals) (Amendment) Ordinance, 2024 introduces several key updates, including clarifications on the definition of international crimes, the determination of criminal liability, the broadcasting of proceedings via audio and video, provisions for foreign counsel, rights of the accused during trials, interlocutory appeals, the admissibility and relevance of evidence, and measures for search, seizure, witness protection, victim participation, and observer roles (Abdullah, 2024b).
The new ordinance addresses crimes against humanity and genocide definition-related issues by bringing the definitions of these offences in line with international law. However, the ordinance does not amend the provision regarding in absentia trials, meaning that trials conducted in the absence of the accused still lack appropriate protections for the defendants (Bergman, 2024). The newly amended International Crimes (Tribunals) Act extends the scope of prosecution to members of the army, navy, air force, police, Rapid Action Battalion, Border Guard Bangladesh, and all intelligence agencies (Staff Correspondent, 2024b).
It also includes explicit measures to protect accused and detained individuals from torture and forcible detention, requiring that they be brought to the tribunal within 24 hours of arrest. The accused and detained are entitled to protection under the Torture and Custodial Death (Prevention) Act, 2013 (Staff Correspondent, 2024b). Moreover, the amended law clarifies the scope of culpability for crimes against humanity and introduces a provision allowing the tribunal to award monetary compensation to victims (Staff Correspondent, 2024b). Additionally, representatives of United Nations bodies and agencies and national and international human rights organisations are permitted to attend public hearings, trials, and other proceedings (Staff Correspondent, 2024b).
Facilitation of Transitional Justice for the Bangladesh Genocide
The ordinance has undeniably introduced significant changes, aligning the 1973 ICT Act more closely with international standards. However, beyond the issue of the death penalty, the new ordinance disappointingly falls short in implementing several other crucial amendments (Bergman, 2024). To achieve systemic reform, it is crucial to introduce further amendments to the act and rules. These amendments should ensure that trials adhere to Bangladesh’s international human rights obligations, international criminal law, and the country’s constitution.
This approach is essential for establishing a fair and impartial legal and judicial process capable of effectively holding perpetrators of crimes accountable (Ganguly, 2024). While ICT-BD’s current focus has shifted towards prosecuting the perpetrators of the July Revolution, it is equally vital to ensure that efforts to facilitate transitional justice for the Bangladesh genocide remain undiminished. Holding the July Revolution perpetrators accountable is crucial, but it must not overlook the importance of addressing the crimes committed during the Bangladesh genocide. Ensuring justice for all victims is essential for a comprehensive and fair transitional justice process.
According to prosecutors, approximately 30 war crimes cases are currently under trial at the tribunal, with ICT Prosecutor Gazi Monowar Hossain Tamim announcing that the amended International Crimes (Tribunals) Act of 1973 will govern ongoing trials related to crimes committed during the Liberation W. Thehe amendment would be applied retroactively from 2009, ensuring its relevance to current cases (Star Digital Report, 2024). Previously, this law was limited to prosecuting crimes committed within Bangladesh. However, the amended law now permits the prosecution of crimes against humanity or genocide, regardless of whether they were committed within Bangladesh or in any other territory. Foreigners who commit such crimes within Bangladesh can also be brought to trial (Star Digital Report, 2024).
Furthermore, he added that the amendment introduced provisions for compensation, allowing the state to use the offender’s assets to compensate victims or those affected. Previously, the prosecution could limit the documents shared with the defence, but now, with court permission, the defence can access any relevant document they require. Additionally, he stated that the amended law had changed trial proceedings. Previously, the defence had to submit a complete list of witnesses during the charge hearing, but now they can present witnesses at any stage of the trial, ensuring a more comprehensive and fair trial process (Star Digital Report, 2024).
These amendments reflect a significant shift towards aligning the tribunal’s procedures with international standards and ensuring justice for the victims of war crimes (Star Digital Report, 2024). Despite the revised ICT-BD Ordinance not fully meeting international standards and having debatable effects, further improvements to the law could enhance its efficacy. Ensuring that the Bangladesh genocide is not overshadowed by other issues will be crucial. If these conditions are met and the revised ordinance is free from political influences, it may facilitate transitional justice for the victims of the Bangladesh genocide.
Conclusion
While the revised ICT-BD Ordinance represents a commendable effort to modernise the legal framework and align it with international standards, it falls short in several crucial areas. The retention of the death penalty and other significant omissions raise concerns about the international credibility of the trials. Nevertheless, the ordinance has introduced significant changes that enhance the scope of prosecution and provide measures for compensating and protecting the accused.
To achieve comprehensive transitional justice for victims of the Bangladesh genocide, further amendments are necessary to ensure fair and impartial trials that adhere to international human rights obligations and the country’s constitution. If these conditions are met and the law is free from political influences, the revised ordinance has the potential to facilitate justice for the genocide victims.
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