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.
An independent tribunal must be capable of demonstrating both actual impartiality and the appearance of impartiality. Where judges appear to supplement the prosecution’s evidence, where communications between judicial and prosecutorial actors generate credible concerns, or where defence witnesses cannot participate without intimidation, confidence in the neutrality of the adjudicative process is necessarily weakened.
Selective Accountability
In January 2026, Bangladesh’s Interim Government adopted an ordinance, which was passed into an Act in April, providing legal protection to participants in the July-August 2024 uprising for specified acts committed as part of the movement. It extended broad immunity to actors aligned with the new regime while pursuing capital charges against the ousted leaders. Crimes committed in ‘political resistance’ to the old regime have been indemnified, while the government has assured that crimes committed for ‘personal reasons’ under the garb of revolution would be examined. This disparity raises a question of whether accountability is being applied according to principled distinctions in conduct or according to political affiliation.
Such differential treatment raises fundamental concerns about the Tribunal's commitment to equal accountability. Article 27 of the Bangladeshi Constitution, which guarantees equality before the law and equal protection of the laws, sits uneasily with a system in which comparable conduct is subject to markedly different standards of prosecution.
These concerns are reinforced by longstanding questions surrounding the Tribunal’s institutional independence. Amnesty International has documented serious concerns regarding the ICTB’s structural independence, while Human Rights Watch has raised broader concerns about accountability and the administration of justice during Bangladesh’s post-uprising transition. The participation of the ICTB’s Chief Prosecutor in public political rallies calling for the prohibition of Sheikh Hasina's political party further compounds concerns regarding the perceived impartiality of the prosecutorial process.
Following Hasina's conviction, the Office of the United Nations High Commissioner for Human Rights (OHCHR) emphasised that accountability proceedings, particularly those concerning international crimes, must comply with international standards of due process and fair trial. The concern is therefore not simply selective prosecution as a matter of political controversy. Where one category of actors is effectively insulated from prosecution while another is subjected to the most severe criminal sanctions, the Tribunal risks becoming an extension of the political conflict rather than an institution capable of resolving it through law.
Death Penalty, Retrospectivity and the Rule of Law
The concerns surrounding the Tribunal become most acute where its proceedings culminate in the death penalty. In the Hasina case, the death sentence cannot be examined separately from the questions of retrospective criminalization and appellate review that have characterized the Tribunal’s jurisprudence.
The starting point is the principle of legality. Article 15 of the ICCPR embodies the rule that no person may be convicted for conduct that did not constitute a criminal offence at the time it was committed, nor subjected to a heavier penalty than that applicable when the offence was committed. The principle of nullum crimen sine lege is equally fundamental to international criminal law. It requires criminal liability to be sufficiently foreseeable and prevents the State from altering the substantive boundaries of criminal responsibility after the conduct has occurred.
This does not mean that every procedural amendment is impermissibly retrospective. States may modify procedural rules applicable to pending proceedings, provided those changes do not impair substantive rights or fundamentally alter the position of the accused. This proposition finds force in the International Criminal Tribunal for Rwanda’s ruling in Prosecutor v. Nyiramasuhuko et al. (2003) where the Appeals Chamber held that amendments to procedural rules apply immediately to pending proceedings, subject to the qualification that they must not operate to prejudice the accused’s rights.
The difficulty arises where amendments expand the definition of an offence, create new forms of criminal responsibility, or alter the available punishment and are subsequently applied to conduct predating those amendments.
That distinction is particularly relevant to the amendments introduced after August 2024. The Act was amended four times in the span of eleven months since the August 2024 protests, these amendments brought provisions concerning command responsibility and crimes against humanity closer to the Rome Statute framework and expressly included enforced disappearances as one of the actus reus elements of crimes against humanity. Also, the amendments expanded the Tribunal’s authority in relation to political organisations and their members. The International Crimes (Tribunals) (Second Amendment) Ordinance, 2025 explicitly broadened the definition of ‘organization’ to include political parties and their affiliates, granting the Tribunal the authority to try, suspend, ban, or penalize political entities and confiscate their properties for international crimes.
Where these provisions are applied to conduct predating their enactment, the question is whether they merely clarify existing international criminal law or instead enlarge the substantive basis upon which criminal liability may be imposed. The latter would engage the prohibition on retrospective criminalization under Article 15 of the ICCPR.
The Tribunal’s earlier experience with Abdul Quader Mollah makes this concern particularly significant. Mollah was initially sentenced to life imprisonment for crimes against humanity and war crimes. Following the Shahbag protests and demands for a harsher sentence, the Act was amended to permit the prosecution to appeal against a sentence. The prosecution subsequently appealed, and the Supreme Court imposed the death penalty. Prior to the amendment, the statutory framework did not provide the prosecution with the same right to challenge an allegedly inadequate sentence.
The significance of Mollah lies not merely in the eventual punishment but in the timing of the legislative intervention. Criminal law must provide stability to both the accused and the State. When the legal consequences of an ongoing prosecution are altered following public demands for a particular outcome, the distinction between lawmaking and adjudication becomes blurred. The danger is not confined to retrospective punishment; it also concerns the perception that legal rules can be recalibrated in response to political or popular pressure surrounding an individual prosecution.
The same concern must inform the assessment of the post-2024 amendments. The prosecution of Sheikh Hasina and other members of the former ruling establishment occurs against a rapidly changing legal framework. Where the amendments are subsequently invoked to pursue additional proceedings concerning conduct predating their enactment, the Tribunal must demonstrate that the accused is being prosecuted under offences and modes of liability that were sufficiently established and foreseeable when the alleged conduct occurred. Otherwise, the pursuit of accountability risks colliding with the very principle of legality that gives criminal punishment its legitimacy.
Capital Punishment and Irreversible Error
The imposition of the death penalty adds another layer of concern. Article 6 of the ICCPR does not abolish capital punishment for States that retain it, but it subjects its imposition to strict conditions. Where the death penalty remains lawful, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court. The safeguards applicable to capital cases must be understood alongside Article 14, since a death sentence following an unfair trial constitutes an especially grave interference with the right to life.
The UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty similarly require strict observance of fair trial guarantees, including the right to legal assistance and effective appellate review. The Human Rights Committee has likewise recognised that violations of fair trial guarantees in capital cases are particularly serious because of the irreversible consequences of the punishment.
This makes the Hasina judgment different in consequence from an ordinary conviction. A procedural deficiency that might theoretically be capable of correction through retrial or appeal assumes a fundamentally different character where the judgment carries a sentence that cannot be reversed once executed. The legitimacy of the death penalty therefore depends not only on the substantive gravity of the offence but upon confidence that the process producing the sentence complied scrupulously with applicable fair-trial guarantees.
Further, in November 2025 the ICTB Chief Prosecutor had warned that if Hasina does not surrender to Bangladesh within thirty days of the verdict, her right to appeal the judgment lapses. This raises a significant question concerning the practical effectiveness of appellate review where an accused convicted in absentia must first surrender to the State that has imposed a capital sentence in order to exercise the right of appeal, the availability of that remedy may be more theoretical than effective. This pre-condition does not find precedent in ICCPR or the UN Model Treaty on Extradition. Further, a non-appealable death sentence can be argued to be arbitrary, contrasting Bangladesh’s obligations under Article 6(1) of ICCPR so as to not deprive any person of his life by arbitrary process.
India’s Extradition Question
Sheikh Hasina’s proposed return places India at the intersection of extradition law, human rights and criminal accountability. India and Bangladesh are parties to the 2013 Extradition Treaty, but surrender is not automatic. Article 6 permits refusal where the offence is of a political character. Article 7(1) permits refusal where the person may be tried in the requested State, while Article 7(2) requires the case to be submitted to the competent authorities for consideration of prosecution.
The political-offence exception must, however, be applied cautiously. Crimes against humanity cannot ordinarily become political offences merely because the accused is a former political leader or because prosecution follows a change of government. The relevant inquiry is whether the circumstances of the prosecution, considered together with the nature of the proceedings, raise sufficiently serious concerns that surrender would facilitate something other than genuine criminal accountability.
In Soering v. United Kingdom (1989), the European Court of Human Rights (‘ECtHR’) recognised that extradition may engage the responsibility of the requested State where surrender exposes an individual to a real risk of treatment incompatible with fundamental rights. In Othman (Abu Qatada) v. United Kingdom (2012), the ECtHR further held that extradition may be impermissible where there is a real risk of a ‘flagrant denial of justice’. Although these decisions are not binding on India, they provide useful comparative guidance where surrender would expose an individual to fundamentally unfair proceedings.
Hasina has been convicted in absentia and sentenced to death following proceedings in which, as discussed above, questions arise concerning effective representation, political vendetta, questionable evidence collection, lack of opportunity for cross-examination, judicial collusion, retrospective legislation and appellate review. Therefore, India has a good case to make when it chooses to not extradite Hasina to Bangladesh. Indian analysts have also noted the political nature of the proceedings and have warned that extraditing Hasina can mean legitimizing the interim government’s trial of Hasina, which was marked by several procedural errors.
Indian constitutional law reinforces the relevance of procedural fairness. In Maneka Gandhi v. Union of India (1978), the Supreme Court of India held that procedure affecting life and personal liberty must be fair, just and reasonable while in Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2010), the Court recognised the legal significance of assurances and conditions accompanying extradition. Since the trial violates many of the above guarantees, India can reasonably deny extraditing Hasina.
India’s options should not, however, be reduced to extradition or impunity. The principle of aut dedere aut judicare reflects the broader proposition that, where the applicable legal framework permits or requires it, a State may prosecute rather than extradite an alleged offender. Sections 34 and 34A of the Extradition Act provide a domestic statutory basis for prosecution in India. Section 34 extends jurisdiction over extradition offences committed abroad, while Section 34A permits the Central Government, where surrender cannot take place, to take steps to prosecute the fugitive in India.
The above proposition finds precedent in Belgium v. Senegal (2012), in which the International Court of Justice held that Senegal, if it did not extradite Hissène Habré, was required to submit his case to its competent authorities for prosecution. Habré was subsequently prosecuted in Senegal for torture and crimes against humanity.
The India-Bangladesh Treaty itself contemplates consideration of prosecution in India in appropriate circumstances. Thus, refusal to extradite need not mean abandonment of accountability. The critical question for India is whether the requested surrender is compatible with the Treaty, constitutional guarantees and international human rights obligations, while ensuring that serious allegations do not simply disappear because extradition is declined.
Can a Tribunal Persistently Accused of Fair-Trial Failures Deliver Justice?
The International Crimes Tribunal was established in 1973 to prosecute the atrocities of Bangladesh’s Liberation War, giving it a mandate of profound historical and legal significance. The concern, therefore, is not with accountability itself, but with the manner in which that mandate has been exercised in the present political context.
The proceedings against Sheikh Hasina raise cumulative concerns regarding the Tribunal’s constitutional foundation, judicial independence, evidentiary scrutiny, effective defence, retrospective amendments and appellate safeguards. No single irregularity necessarily determines the validity of a conviction. Taken together, however, they raise a more fundamental question about whether the institution can command the legitimacy expected of a tribunal adjudicating international crimes.
The victims of the July-August 2024 violence deserve genuine accountability. But accountability must be secured through an independent and credible process; otherwise, the pursuit of justice risks becoming indistinguishable from political retribution. This also informs India’s extradition dilemma: surrender cannot be considered independently of the fairness of the proceedings awaiting the accused, while refusal to extradite need not mean immunity from accountability.
Ultimately, Sheikh Hasina should not be above the law, and those responsible for the violence of 2024 must face justice. But the legitimacy of that justice depends upon the integrity of the process through which responsibility is established. If the Tribunal’s credibility remains compromised, the consequences will extend beyond the present prosecution, weakening confidence in Bangladesh’s capacity to administer genuine international criminal justice for the foreseeable future.
Author’s Note: I would like to express my sincere gratitude to Mr. Tapas Kanti Baul, former Prosecutor at the International Crimes Tribunal, Bangladesh, for his valuable assistance and guidance in my research concerning the Tribunal, its institutional history, and the legal and procedural framework within which it operates. All views expressed, and any errors that may remain, are my own.
