This is the first of a two-part series raising substantial concerns regarding whether Bangladesh’s International Crimes Tribunal, which convicted and sentenced Sheikh Hasina to death, has complied with internationally recognised fair trial standards.
“I may be killed. I may be arrested. I may be sent to prison… I am fully aware of my fate. Still, I want to go back because my people are calling me.”
THESE WERE THE WORDS of Bangladesh’s former Prime Minister Sheikh Hasina in a recent email interview, announcing her intention to return to Bangladesh by December 2026 after more than a year in exile. Her proposed return comes despite a death sentence imposed by Bangladesh’s International Crimes Tribunal (‘ICTB’), specifically ICT-1, placing renewed attention on one of South Asia’s most consequential criminal prosecutions.
The case, however, extends beyond the fate of a former head of government. It raises a more fundamental question for international criminal justice: can a tribunal established to prosecute international crimes command legitimacy where the proceedings through which accountability is pursued are themselves alleged to fall short of internationally recognised standards of due process?
On November 17, 2025, ICTB convicted Sheikh Hasina and former Home Minister Asaduzzaman Khan Kamal of crimes against humanity under the amended International Crimes (Tribunals) Act, 1973. Both were sentenced to death, while former Inspector General of Police Chowdhury Abdullah Al-Mamun, having cooperated with the prosecution, received a reduced sentence of five years' imprisonment. The proceedings against Hasina and Kamal were conducted in absentia, with neither accused being represented by a counsel of their own choosing.
The prosecutions arose from the violent suppression of the July-August 2024 student protests, during which Bangladeshi security forces committed grave human rights violations. The United Nations Office of the High Commissioner for Human Rights concluded that more than 1,400 protesters were killed, approximately 11,700 individuals were detained, and at least 180 children lost their lives. It further found reasonable grounds to believe that the systematic use of lethal force by State security agencies may amount to crimes against humanity.
There can be little disagreement that those responsible for these atrocities should be investigated and, where the evidence establishes guilt beyond reasonable doubt, prosecuted. Yet the legitimacy of international criminal justice rests not merely upon punishing perpetrators but upon ensuring that accountability is administered through independent institutions and procedures that faithfully observe the guarantees of a fair trial. This assumes particular significance where the accused faces capital punishment. The more serious the allegation, the greater the obligation upon the State to demonstrate scrupulous adherence to legality, judicial independence and due process.
This essay series argues that while accountability for the atrocities committed during the July-August 2024 protests is both necessary and legitimate, the proceedings before ICTB raise substantial concerns regarding compliance with internationally recognised fair trial standards.
Those concerns are not confined to the Hasina prosecution alone. Rather, they reflect deeper structural questions concerning the Tribunal’s constitutional foundation, institutional independence, evidentiary standards, historical jurisprudence and continued reliance upon retrospective criminalization and the death penalty.
The central difficulty is therefore not whether any single procedural irregularity is sufficient to invalidate the proceedings. It is whether the cumulative effect of deficiencies concerning judicial independence, effective representation, evidentiary scrutiny, retrospective amendments and appellate review is compatible with the minimum conditions of legitimate criminal adjudication.
These questions acquire added significance as India considers any future extradition request and Bangladesh prepares for Sheikh Hasina’s announced return.
The Tribunal Before the Trial
The International Crimes Tribunal traces its origins to the International Crimes (Tribunals) Act, 1973 (‘the Act’) that was inspired by the Genocide Convention to prosecute genocide, crimes against humanity and war crimes committed during the Bangladesh Liberation War (1971). Although the legislation remained largely dormant for decades, the Tribunal was constituted in 2009 under the Awami League government to prosecute atrocities committed during the 1971 conflict. Over time, however, the Tribunal’s work attracted sustained criticism from international observers regarding procedural fairness, judicial independence and adherence to internationally recognised fair trial standards.
The political transition of August 2024 fundamentally altered both the Tribunal’s role and its constitutional context. Following the resignation of Hasina, the interim administration introduced multiple amendments to the Act through executive ordinances. These amendments expanded aspects of the Tribunal’s jurisdiction, revised provisions relating to crimes against humanity and command responsibility, and enlarged the Tribunal’s authority over political organisations alleged to have participated in international crimes. Unlike ordinary legislation, however, these amendments were promulgated in the absence of a Parliament.
This legislative route raises constitutional questions that extend beyond the Hasina prosecution. Article 93 of the Constitution of Bangladesh authorizes the promulgation of ordinances only as a temporary legislative measure, subject to subsequent parliamentary approval. In the absence of Parliament, the constitutional validity of repeated amendments through executive ordinance has become a matter of controversy.
Article 7(2) of the Bangladeshi Constitution further provides that any law inconsistent with the Constitution shall, to the extent of that inconsistency, be void. While the ultimate determination of these questions rests with Bangladeshi constitutional courts, the circumstances surrounding the Tribunal’s legal foundation inevitably bear upon perceptions of its institutional legitimacy.
Concerns regarding the Tribunal’s institutional independence are compounded by its judicial composition. The Act under Section 6 contemplates that judges appointed to the Tribunal shall be drawn from those who are at present or are qualified to be judges of the Bangladeshi Supreme Court. Following the political transition, however, the reconstituted Tribunal included Additional Judges and probationary appointees.
These appointments followed the coercive resignations of the Chief Justice and other judges of the Supreme Court during the transition and have generated debate regarding compliance with Articles 22 and 94(4) of the Constitution, both of which seek to preserve judicial independence from executive influence. Judicial independence is not merely an institutional aspiration; it constitutes a fundamental component of the right to a fair hearing recognised under Article 14 of the International Covenant on Civil and Political Rights.
Against this constitutional backdrop, the prosecution alleged that Sheikh Hasina exercised effective authority over Bangladesh’s security forces during the suppression of the July-August 2024 protests. The indictment accused her of authorizing mass killings, directing the use of lethal force including aerial assets such as helicopters, failing to prevent atrocities committed by subordinate forces, destroying evidence, and participating in a coordinated campaign of persecution against demonstrators.
The seriousness of those allegations, makes the integrity of the Tribunal’s procedures all the more significant. It is precisely because crimes against humanity attract the gravest criminal responsibility that the institutions adjudicating them must command the highest degree of public confidence, constitutional legitimacy and procedural fairness.
Fair Trial or Trial in Form?
The legitimacy of a criminal conviction depends not only on the existence of a legal framework but on whether that framework affords the accused a meaningful opportunity to contest the case against them. Article 14 of the ICCPR guarantees a fair and public hearing before a competent, independent and impartial tribunal, while Article 67 of the Rome Statute sets out corresponding safeguards for persons prosecuted before the International Criminal Court. These include adequate notice of the charges, sufficient time and facilities to prepare a defence, the right to communicate with counsel of choice, and the opportunity to examine witnesses. The Hasina proceedings raise questions as to whether these guarantees were meaningfully available in practice.
The Practice of Trials in absentia and Effective Defence
The most immediate difficulty concerns the decision to proceed in absentia. The Rome Statute, under Article 63(1) imposes an absolute prohibition on trials conducted in the absence of an accused. Recently, the ICC in Prosecutor v. Kony (2023) allowed an in absentia proceeding in pre-trial confirmation of charges under exceptional circumstances, under Article 61(2) of the Statute, while noting that the actual trial would require his presence. However, these proceedings have been criticized by scholarship, and require safeguards sufficient to ensure that the accused has either knowingly waived the right to be present or, where that has not occurred, retains a genuine opportunity to obtain a retrial or effective review upon appearance,.
The UN Human Rights Committee’s General Comment No. 32 on Article 14 makes clear that an accused must have a genuine opportunity to participate in criminal proceedings, either personally or through counsel, and must be able to present evidence and examine witnesses. The concern in Hasina’s case is therefore not simply that she was absent, but that her absence was accompanied by an absence of meaningful participation in the preparation and presentation of her defence.
The Tribunal appointed defence counsel to represent Hasina. Yet, the defence was materially constrained as the counsel did not receive instructions from her, did not cross-examine the prosecution witnesses and did not call defence witnesses.
Article 14(3)(e) of the ICCPR expressly protects the right of an accused to examine, or have examined, witnesses against them. Where no meaningful cross-examination occurs, the court assumes a heightened responsibility to scrutinize the prosecution’s evidence before relying upon it to establish criminal responsibility.
The issue is further complicated by the Tribunal’s own statutory framework. Section 10A of the Act permits proceedings in absentia, while Section 22 read with the Rules of Trial Procedure, separately guarantees a fair trial. The difficulty is that the procedural safeguards contemplated by Section 22 and the Rules become substantially harder to realise when an accused is absent and has not been able to communicate with counsel. The coexistence of the two provisions therefore raises an important question: can a statutory guarantee of a fair trial be meaningfully fulfilled where the accused has no effective opportunity to participate in that trial?
This question becomes even more significant because the proceedings culminated in the death penalty. The irreversible nature of capital punishment leaves little room for procedural error. Where an accused is tried in absentia, denied the practical benefit of counsel of their choosing and unable to challenge prosecution evidence, the margin for procedural safeguards to fail becomes exceptionally narrow.
Evidence and Judicial Gatekeeping
The concerns surrounding the trial are not confined to the participation of the defence. They extend to the manner in which the prosecution’s evidence was presented and scrutinized.
The prosecution reportedly produced 54 witnesses, alongside documentary material and audio recordings of conversations allegedly involving Sheikh Hasina and security officials concerning the use of lethal force against protesters. The recordings, which were leaked online in March 2025, have been alleged to be obtained by a government surveillance agency.
This allows scrutiny under Article 43 of the Constitution of Bangladesh, which protects the privacy of correspondence and other means of communication unless demanding thresholds like state security are in consideration. Article 17 of the ICCPR protects individuals against arbitrary or unlawful interference with privacy and correspondence. Where intercepted communications constitute important evidence in a criminal prosecution, a fair process requires adequate judicial scrutiny of their provenance and admissibility. The material available on record does not indicate that these questions were examined and the thresholds needed to impugn privacy of the accused were established.
There is a further difficulty concerning the evidentiary record itself. Not all trial material, including the judgment, has been made publicly available, limiting independent assessment of the factual foundation of the judgment.
This matters because the United Nations Fact-Finding Mission’s conclusions and the Tribunal’s determination of individual criminal responsibility perform fundamentally different functions. The former may establish reasonable grounds to believe that serious violations occurred, while a criminal court must determine whether the evidence before it establishes the individual accused’s responsibility to the requisite standard of proof and mental element required for the crimes alleged.
The concern, therefore, is not that the Tribunal relied upon evidence concerning the broader violence. It is whether the evidence capable of establishing individual responsibility was subjected to sufficient judicial and adversarial scrutiny.
The next, and final, part of the essay series traces the ICTB’s troubled institutional history, from constitutional questions over its post-2024 reconstitution to longstanding concerns about judicial independence and selective accountability. It also examines the fair-trial deficits in the Hasina proceedings themselves — the absence of effective legal representation, use of contested surveillance evidence, and retrospective expansion of criminal liability — before turning to what these questions mean for India as it weighs a possible extradition request.
