The International Crimes Tribunal, Bangladesh (ICT-BD) has been widely perceived as the ultimate forum for prosecuting crimes committed during the July uprising. The high expectations placed on the ICT-BD often lead to the filing of cases that may not fall within its jurisdiction. This tendency may result in prolonged proceedings or improper use of tribunal resources.
International crimes prosecution, whether at the international or domestic level, is a serious matter. The gravity of these crimes, their contextual elements, and the ranks of the offenders distinguish them from other domestic offences. For instance, murder is criminalised under all penal legislation worldwide. However, murder may be classified as genocide, a crime against humanity, or a war crime depending on the presence of specific contextual elements. It may often appear that certain complaints—such as those related to single incidents or incidents falling below a particular threshold—don’t fall within the jurisdictional framework of the ICT-BD.
For all latest news, follow The Daily Star’s Google News channel. The trial of international crimes has always been considered an exception to a country’s general criminal justice system. This implies that an alleged crime should first be prosecuted through the general criminal justice system before being referred to a specialised tribunal dealing with international crimes, rather than being directly referred to a specialised tribunal.
Recognising the importance of this issue, the interim government incorporated Section 11A, paragraphs 3 and 4, into the International Crimes (Tribunals) Act, 1973 through the International Crimes (Tribunals) (Amendment) Ordinance, 2024. Section 11A(3) states that if an accused is charged under the 1973 act but the subsequent evidence suggests the commission of a different offence punishable under the Penal Code, 1860, or any other applicable law, the case may be transferred to a competent court for appropriate adjudication. Section 11A(4) outlines procedural matters related to such transfers.
It is worth noting that the application of Section 11A(3) of the 1973 act applies only after charges have been framed. However, it would be more effective if this process could be initiated at the time of charge-framing. In order to maximise the benefits of Section 11A(3), the ICT-BD should adopt prosecutorial guidelines to filter out cases that fall outside its jurisdictional framework. This approach can be referred to as “domestic complementarity.”
In the context of the Rome Statute of the International Criminal Court (ICC), the ICC can only investigate and prosecute individuals accused of international crimes if the forum state is unwilling, unable or inactive in addressing the situation. Here, the ICC and domestic criminal justice systems function in a complementary manner. One of the key objectives of the principle of complementarity in the Rome Statute is to reduce the ICC’s workload and give precedence to domestic justice mechanisms. Similar justifications can be applied to the ICT-BD.
The foremost reason for adopting a domestic complementarity policy is strategic policymaking. The trial of international crimes is legally complex and politically sensitive, requiring a careful balance between the victims’ rights and the accused’s fair trial rights while facing multifaceted challenges from both domestic and international quarters. Therefore, the ICT-BD should be selective in selecting cases. This approach is also crucial from the perspective of the judicial economy. In some instances, external political pressures may urge the ICT-BD to take on cases that do not satisfy its jurisdictional requirements under the 1973 law. Outright rejection of such cases could also provoke a public outcry. A clearly defined policy on domestic complementarity would help manage such situations constructively.
Another reason in favour of adopting this policy is to mitigate the risk of political backlash. Though it is entirely legal to prosecute an individual for a general crime after determining that the allegations of international crimes against them are not substantiated, the political ramifications of such prosecutions could be significant. Such a prosecution may be perceived as an abuse of process or an act of political vengeance by the supporters of the accused, even if fair trial standards are thoroughly upheld. A well-implemented domestic complementarity policy would help the ICT-BD avoid such controversies. From the accused’s perspective, such a policy would also simplify legal proceedings, reduce procedural complexities, and help the accused avoid harassment.
In light of these considerations, the ICT-BD should formulate a clearly defined policy on domestic complementarity. At minimum, it should include definitions and elements of relevant crimes, the relationship between the ICT-BD and the general criminal justice system, case filing procedures, and other procedural guidelines. A standardised complaint submission form for the ICT-BD could also be introduced.
Simultaneously, the government should reconsider broadening the scope of Section 11A(3) through an amendment to the International Crimes (Tribunals) Act, 1973. As noted earlier, the provision currently applies only after a charge has been framed. Its effectiveness would be significantly enhanced if amended to allow its application from the moment of case initiation. The expansion of the scope of interlocutory appeals under the 1973 act can also help achieve the objectives of Section 11A.
At present, Section 21A of the law limits interlocutory appeals to cases involving contempt of the ICT-BD. By contrast, the Rome Statute and the statutes of UN ad hoc tribunals permit interlocutory appeals on jurisdiction, admissibility, arrest warrants, and framing of charges. Expanding the scope of interlocutory appeals of the ICT-BD through an amendment to the 1973 act would align the tribunal with international standards.
The recent report on Bangladesh by the Office of the United Nations High Commissioner for Human Rights (OHCHR) has raised concerns about the compliance of the ICT-BD with human rights standards. In response, the government has expressed its intention to the OHCHR to further amend the 1973 act, to address these human rights-related criticisms (2025 OHCHR Bangladesh Report, Para 255). At this juncture, the government should seriously consider amending sections 11A(3) and 21A of the law to enable the ICT-BD to formulate a domestic complementarity policy. Concurrently, the ICT-BD should adopt a policy to manage its workload, reduce external pressures, enhance judicial efficiency, and strengthen its legitimacy and effectiveness.
Quazi Omar Foysal is lecturer at American International University-Bangladesh (AIUB) and advocate at the Supreme Court of Bangladesh. He can be reached at [email protected].
Views expressed in this article are the author’s own.
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