Non-retroactivity in Prosecuting Crimes against Humanity and International Crimes Tribunal Bangladesh

Abstract

The International Crimes Tribunal Bangladesh (ICTB) was set up by Bangladesh through the adaptation of the International Crimes Tribunal Act 1973, as an internal mechanism trying to prosecute and punish Bangladeshi perpetrators who committed international crimes in Bangladesh liberation war in 1971. After a long disappearance from the public eye, the Tribunal was reemerged in 2010. The recent cases decided by the Tribunal have revealed that the international crimes; namely, crimes against humanity, were allegedly committed in 1971, while the relevant Statute was enacted in 1973, and was implemented in 2010. Recently, the ICTB is prosecuting crimes against humanity retroactively, which might have violated the prohibition of penalizing certain conducts committed by the perpetrators before the enforcement of such conduct as a law banning such demeanor as an offense. Therefore, this study firstly analyzes the rule against retroactivity in international criminal law. Secondly, it investigates the justification of the retroactive criminalization of crimes against humanity at the first International Military Tribunal, Nuremberg, and its crystallization into the regional and international legal instruments. Thirdly, the study examines the characteristics of crimes against humanity as an international crime, to scrutinize whether the ICTB needs to fulfill such requirements either in 1971 or 2010. Then, it illustrates various judgments of the ICTB, demonstrating that it does not comply with the rule prescribed by international laws either in 1971 or 2010, in prosecuting crimes against humanity retroactively. Lastly, the study concludes by forwarding ways necessary to the ICTB in retroactive prosecution of international offenses.

Murder, Extermination and Torture as the Underlying Offenses of Crimes against Humanity: A Practical Reflection on the International Crimes Tribunal Bangladesh

“…For example, the accused Mujahid was found guilty of cooperating with the Pakistani Army to murder intellectuals. However, the Pakistani military was not connected with these killings; instead, it was conducted exclusively by the Al-Badr, 80 a para-military force to the Pakistani army. Hence, it is elucidated that the Tribunal failed to connect between killing of victim and the conduct of the accused.…”

Proving Modes of Criminal Liability in Prosecuting International Crimes: An Analysis of International Crimes Tribunal Bangladesh

“…Bangladesh currently has established the ICTB in prosecuting and penalizing persons who perpetrated international crimes in its 1971 Liberation Conflict. The ICTB was formed in 2010 to try and penalize the forces of West Pakistan and their Bangladeshi traitors who contrasted with the Bangladesh War of Independence and did commit atrocious offenses against Bangladeshi civilians (Billah, 2020). Firstly, the Tribunal was initiated on 17th July 1973 by passing the 1973 ICT Act by the Bangladeshi Parliament afterwards the 1971 Conflict (Billah, 2020).…”

“…The ICTB was formed in 2010 to try and penalize the forces of West Pakistan and their Bangladeshi traitors who contrasted with the Bangladesh War of Independence and did commit atrocious offenses against Bangladeshi civilians (Billah, 2020). Firstly, the Tribunal was initiated on 17th July 1973 by passing the 1973 ICT Act by the Bangladeshi Parliament afterwards the 1971 Conflict (Billah, 2020). However, due to political unevenness with Pakistan, India, and the newly emerged State of Bangladesh, instigating any legal proceeding against the Pakistani perpetrators for their wrongful acts was not possible (Billah, 2020).…”

“…Firstly, the Tribunal was initiated on 17th July 1973 by passing the 1973 ICT Act by the Bangladeshi Parliament afterwards the 1971 Conflict (Billah, 2020). However, due to political unevenness with Pakistan, India, and the newly emerged State of Bangladesh, instigating any legal proceeding against the Pakistani perpetrators for their wrongful acts was not possible (Billah, 2020).…”

“…One of the fair trial rights is to prove the culpability of an individual through an unambiguous pleading of the methods of criminal charge prescribed by certain laws (Jordash and Bracq, 2019) and such criminal accountability shall be individual, and adequately predictable and accessible during the commission of an act or omission (Ambos, 2013). However, it has been revealed throughout the jurisprudence of the ICTB, that the Tribunal applies different modes of criminal liabilities in unacceptable and inconsistent manners that hinder the proper application of international criminal law standards, which is labelled the Tribunal as the 'victor's justice' type of initiative (Billah et al, 2022) and is somehow prosecuting and punishing many alleged perpetrators through an imperfect system of justice where the accused are trying without properly recognized impartial trial and due process in proving the different modes of criminal charges against the individuals.…”