Introduction
Following mass student protests and a violent crackdown that killed at least 1,400 people, Sheikh Hasina’s 15-year authoritarian rule as Prime Minister of Bangladesh ended on 5 August 2024 (here, here, here). Amid unprecedented public outrage, she fled to India, and an interim Government led by Nobel Laureate Dr Muhammad Yunus took charge. The violence was largely triggered by the Government’s shoot-on-sight orders to suppress the protests. Legal proceedings under the International Crimes (Tribunals) Act (ICTA) have since been initiated against Hasina and other Bangladesh Awami League (BAL) leaders for alleged crimes against humanity. Although the International Crimes Tribunal (ICT-BD) has requested her extradition from India, Indian authorities have refused, citing carve-out clauses under the extradition treaty. Special Adviser to the Chief Prosecutor, Toby Cadman, has asserted that the trial will proceed in Hasina’s absence, if necessary. However, this post challenges the legality of conducting such trials in absentia, arguing they lack justification under both the ICTA and international criminal law. This argument gains further weight from the fact that the ICTA prescribes death penalty as its maximum punishment. The post will start by exploring the historical background of the ICTA, then move on to examine its core legal provisions and significant judicial decisions, both domestic and international, complemented by a comparative analysis of the well-established jurisprudence of the UN Human Rights Committee (UNHRC) and the European Court of Human Rights (ECtHR). It ultimately argues that, unless the law is reformed to align with international standards, conducting a trial against Hasina and other defendants in absentia would be inconsistent with established legal norms and would undermine fundamental principles of due process.
Background of the Domestic Statute
The ICTA was enacted in 1973 with the aim of prosecuting and punishing local collaborators who opposed the country’s separation from then-West Pakistan and were allegedly involved in committing serious international crimes—such as genocide and crimes against humanity—against the people of what was then East Pakistan during the 1971 War of Independence (covered here). As indicated in the preamble, this is a domestic law that establishes a national tribunal to prosecute crimes recognised under international law. One of Bangladesh’s major political parties, BAL, won a landslide victory in the December 2008 election under Hasina’s leadership, with the promise of prosecuting the war criminals of 1971 featured prominently in its manifesto. Soon afterwards, the BAL Government amended the ICTA several times, established ICT-BD under the ICTA, and started the trial process. The ICT-BD framed the International Crimes Tribunal Rules of Procedure in 2010 (the Rules), soon after its formation. Originally enacted in July 1973, the ICTA was significantly influenced by the International Military Tribunal (IMT) Charter used at Nuremberg. Trials held by the ICT-BD under the BAL Government drew widespread international criticism for falling short of global standards, with earlier executions widely condemned as politically driven.
Statutory Framework Within the ICTA
The concept of trial in absentia was not included in the original 1973 statute and was only introduced later through the 2012 amendment via section 10A, having been overlooked during the initial amendment of the ICTA in 2009. Section 10A(1) provides that the tribunal may hold the trial in absence of the accused, when it is satisfied that the accused person has absconded or concealed himself, after exhausting the procedure laid down in the Rules. The ICT-BD will first issue process, and then publish notification in two daily newspapers (one in English, and the other in Bengali) asking the accused to appear in the date fixed, if the process returns unserved (Rules 22, 30-31). If the accused does not appear before the ICT-BD even after the newspaper publication, trial of the accused shall proceed in his absence (Rule 32). Whereas section 10A(1) makes trial in absentia discretionary through the use of the word “may,” Rule 32 uses the term “shall” characterising the notion as compulsory. Section 26 gives the provisions of the ICTA overriding effect, indicating ICTA’s primacy over the Rules.
Section 10(1) of the ICTA outlines the trial procedure, requiring the charge to be read and the accused to plead guilty or not. Section 17 further guarantees the accused the right to respond to charges, among other protections. Both provisions use the mandatory term “shall,” indicating these rights are unconditional. Notably, the law does not restrict the requirement to read charges based on the accused’s presence, implying that trials in absentia contradict the original intent of the ICTA. Although the present interim Government has amended the ICTA to align it more closely with international standards, the provision allowing in absentia trials remains unchanged.
In Absentia Trial: An International Perspective
Since the adoption of the International Criminal Tribunal for the former Yugoslavia, all international criminal courts have rejected in absentia trial, including the International Criminal Tribunal for Rwanda, and the Sierra Leone Special Court. The ICT-BD in Chief Prosecutor Versus Moulana Abdul Kalam Azad referred to Article 22 of the Statute of the Special Tribunal for Lebanon (STL) which exceptionally contains provision for in absentia trial. The ICT-BD observed that the accused waived his right to be present through his act of absconding and leaving the country (paras 52, 54). The ICT-BD’s conclusion as to Azad’s expressly waiving his right solely based on his abscondence is highly controversial, as it miserably failed to acknowledge that the STL considers the accused to have waived his right to be present only when he has done so expressly and in writing (Article 22(1)(a)). STL contains certain preponderant rights for the accused in Articles 22(2) and (3), which were not considered or even discussed by the ICT-BD. Even in his absence, the accused has the right to appoint defence counsel of his own choice, failing which the Tribunal shall appoint his defence counsel (Articles 22(2)(b) and (c)). When the accused has not appointed the defence counsel and he has been convicted in his absence, he shall be entitled to a retrial in his presence, unless he accepts the judgment (Article 22(3)). In the absence of these crucial rights in the ICTA, the ICT-BD’s reliance on the STL solely to justify the consistency of section 10A with international law is somewhat misleading.
In assessing the fairness and legitimacy of Chowdhury Mueen-Uddin’s trial in absentia, the UK Supreme Court acknowledged the “widespread international criticism of the [ICT-BD] for failing to respect minimum fair trial guarantees” in this context (para 17). The Court of Appeal also found the in absentia trial of Mueen-Uddin to be vividly flawed breaching all forms of international standards due to various reasons. Firstly, Mueen-Uddin’s warrant was never delivered to his actual place of residence in the UK or his old home in Bangladesh. Also, the conclusion of the in absentia trial on 30 September 2013 after having started on 15 July of the same year, represents a significantly narrow time span for prosecuting international crimes of such grave nature (Lord Justice Dingemans, paras 20, 22). Secondly, neither Mueen-Uddin was served with any notice of the case, nor was he contacted by the State appointed counsel during the trial (Lord Justice Phillips, para 74). Not only Mueen-Uddin was absent in the proceeding, but also he was not granted any genuine opportunity to advance his case through the defence counsel assigned by the ICT-BD. Thirdly, the ICTA leaves the door wide open for admission of questionable and unreliable evidence, allowing the ICT-BD to conveniently punish the accused with death sentence, particularly in absentia trials (Lord Justice Phillips, para 77). Finally, based on all these considerations, proceeding against Mueen-Uddin in his absence was found to be unjustified, even under the provisions of the ICTA (Lord Justice Phillips, para 74). Therefore, after carefully examining the ICTA provisions, the Supreme Court and Court of Appeal of the UK substantially emphasised on the absence of legitimate justification to prosecute the accused in absentia.
Jurisprudence of the UNHRC and the ECtHR
All elements of the ICT-BD proceedings must align with Bangladesh’s obligations under the International Covenant on Civil and Political Rights (ICCPR), to which it is a state party. Although Article 14(3)(d) of the ICCPR guarantees an accused the right to be present at their trial, the UNHRC has acknowledged that trials in absentia may be permissible in exceptional circumstances. However, such proceedings are only acceptable if the accused is granted an unequivocal right to be notified, to have legal representation, and, where necessary, to a retrial in their presence. In General Comment No. 32, the UNHRC emphasised that the prosecution must establish that all reasonable efforts were made to inform the accused about the trial (para 36). Furthermore, in Maleki v Italy, the UNHRC held that merely taking reasonable steps to locate the accused is insufficient unless the right to a retrial is guaranteed (para 9.5). It is imperative that the prosecution proves the accused had actual knowledge of the proceedings.
The approach taken by the ECtHR mirrors that of the UNHRC, reflecting a consistent and uniform body of jurisprudence regarding trials in absentia. Article 6(3) of the European Convention on Human Rights (ECHR) affirms that anyone facing criminal charges has the right to defend themselves either personally or with legal representation of their own choosing. In Colozza v Italy, the ECtHR clarified the scope of Article 6, stating that even though the right to be present at one’s trial is not explicitly stated in paragraph 1, the overall aim and spirit of the Article clearly imply that individuals charged with a criminal offence must be allowed to attend their hearing (para 27).
The ECtHR has held that certain criteria must be satisfied for a trial in absentia to be compatible with the defendant’s right to be present. First, the individual must be properly informed of the upcoming trial (Lala v The Netherlands, para 14). Second, the defendant must clearly and unmistakably waive their right to attend the proceedings (Poitrimol v France, para 31), and mere silence following notification does not amount to such a waiver (Colozza, para 28). Third, the defendant must have access to legal representation (Pelladoah The Netherlands, para 23). Lastly, the defendant must have the opportunity to later obtain a new evaluation of the case’s substance by a court that has heard their side, namely a retrial (Krombach v France, para 85). Both the UNHRC and ECtHR have consistently emphasised that a trial in absentia can only align with international human rights standards if all these safeguards are fully afforded to the defendant. The ICTA’s provision for trials in absentia does not grant any of these rights to the accused. In its comprehensive Fact-Finding Report, the United Nations Human Rights Office (OHCHR) expressed strong criticism of this aspect of the ICTA, pointing out that it falls short of ensuring the fundamental fair trial guarantees required under international standards (para 255).
Conclusion
Ironically, the BAL leaders, including Hasina, now face prosecution under the ICTA – a law they themselves enacted. The ICTA and ICT-BD trials have earlier faced global criticism for lacking due process, particularly in absentia trials, which violate internationally recognised rights of the accused. Such trials contradict the original 1973 structure of the ICTA, and the controversial 2012 amendment introducing in absentia proceedings has drawn further scrutiny. This post calls on policymakers to re-evaluate the practice of trials in absentia and to revise the relevant provisions to align with international legal standards and the rights of the accused, an especially urgent matter given that the ICT-BD proceedings permit the imposition of death punishment.