As Sheikh Hasina Plans Her Return, Can a Tribunal Accused of Fair-Trial Failures Legitimately Try International Crimes? - Part II

The first part of the essay series can be read here. 

A Tribunal in Search of Legitimacy

THE CONCERNS surrounding the Sheikh Hasina proceedings cannot be examined in isolation from the institutional history of the International Crimes Tribunal. The Tribunal’s repeated brushes with questions of judicial independence, procedural fairness and political influence have created a credibility deficit that now bears directly upon the Hasina prosecution.

Constitutional Deficits

The Bangladeshi Constitution itself creates an unusual framework for persons accused before the Tribunal. Articles 47(3) and 47A place significant limitations upon the application of certain fundamental rights to persons accused of international crimes. Among the protections affected are Article 31 guarantees of equal protection of law, Article 35 guarantees of fair trial and Article 44 rights to approach the Supreme Court for enforcement of fundamental rights (Constitutional Remedies).

This creates a repugnancy between the provisions of the International Crimes (Tribunals) Act, 1973 (‘the Act’) and the Constitution. The Act through Section 22, expressly provides for a fair trial. Yet the constitutional framework simultaneously restricts access to some of the ordinary safeguards through which fair trial rights are ordinarily enforced. The problem becomes particularly acute in in absentia proceedings where an accused who cannot participate meaningfully in the proceedings is already disadvantaged in presenting a defence, compounded by constitutional restrictions that further limit the avenues through which procedural violations can be challenged.

The Tribunal does possess an appellate mechanism through which its judgments may be challenged before the Supreme Court. But the existence of an appeal in formal terms does not necessarily answer the question of whether an accused has an effective remedy. Article 14(5) of the International Covenant on Civil and Political Rights (‘ICCPR’) requires that everyone convicted of a criminal offence have the right to have the conviction and sentence reviewed by a higher tribunal according to law. An appellate right must therefore be practical and effective, rather than merely theoretical.

The constitutional framework consequently presents a paradox. International crimes are treated as sufficiently exceptional to justify limiting ordinary constitutional protections, while the Tribunal simultaneously claims legitimacy as a judicial institution committed to fair trial. The exceptional nature of the crimes may justify specialized procedures; it cannot, however, justify the removal of the minimum safeguards that distinguish criminal adjudication from executive punishment.

Institutional Independence

These constitutional questions are reinforced by the Tribunal’s history. One of the most prominent examples is the trial of Ghulam Azam, a senior Jamaat-e-Islami leader prosecuted for his alleged role in the 1971 Liberation War. The proceedings attracted substantial international criticism over the manner in which evidence was received and tested. Among the concerns was that judges allegedly supplemented the prosecution’s case by undertaking their own inquiries without giving the defence an opportunity to respond. Newspaper reports and matters characterized as ‘common knowledge’ were also relied upon, raising questions about the ability of the defence to contest the factual basis of the prosecution’s case. 

The controversy was compounded by reports published by The Economist and relied upon by Human Rights Watch, concerning leaked communications involving members of the Tribunal and prosecutors. The disclosures generated allegations of inappropriate communications between judicial and prosecutorial actors and raised broader questions about political influence over the Tribunal. Allegations concerning intimidation of defence witnesses and weaknesses in witness-protection mechanisms further affected perceptions of the Tribunal’s independence. In the Ghulam Azam proceedings, the defence ultimately called only a single witness. 

These episodes matter not because past procedural controversies automatically establish that the Hasina judgment is wrong, but because judicial legitimacy depends upon more than formal institutional designation.