Qamrul Islam written discharge application, part 4
This is the fourth part of the written discharge application that concerns defence lawyer’s views on the ICT Act 1973 and procedural defects
RETROACTIVE MAJOR AMENDMENTS TO THE INTERNATIONAL CRIMES (TRIBUNALS) ACT 1973
37. That it is noted that the International Crimes (Tribunals) (Amendment) Ordinance, 2024 (Ordinance No. XIV of 2024), promulgated in September 2024 and given retrospective effect from 6 January 2009, introduced significant amendments to the International Crimes (Tribunals) Act, 1973. These amendments substantially altered the definitions of core crimes under section 3(2), including the expansion of crimes against humanity and the modification of the definition of genocide by omitting “political group” from the list of protected categories, and the insertion of a new section 3(3) importing, in part, the Elements of Crimes adopted by the International Criminal Court (ICC) pursuant to Article 9 of the Rome Statute. The section of Liability of Crimes has also been heavily amended.
38. That it is noted that section 3(3) on ICC’s Elements of Crimes, as inserted, reads as follows:
“For the purpose of determining liability under sub-section (2), a Tribunal shall have regard to the Elements of Crime of the International Criminal Court (ICC), as adopted pursuant to Article 9 of the Rome Statute of the International Criminal Court, to the extent that they are not inconsistent with the provisions of this Act.”
39. This conditional incorporation clause represents a fundamental inconsistency in legislative design. It purports to import international standards of criminal liability while simultaneously subordinating them to the Tribunal’s domestic provisions “where inconsistent,” thereby nullifying the very harmonisation it claims to achieve.
40. That it is stated that section 4 of the Act, as amended, continues to impose individual and superior responsibility retrospectively, extending liability to acts, omissions, and relationships that did not exist, or could not have been known to attract criminal sanction, at the material time. Such retroactivity goes to the root of legality, rendering the amendments ultra vires both the Constitution and Bangladesh’s international obligations.
41. That it is submitted that such partial and conditional adoption of the ICC’s Elements of Crimes is internally contradictory and jurisprudentially unsound. The Elements of Crimes of the ICC are not a menu of options. They form an integrated and coherent interpretative framework inseparable from the procedural and evidentiary guarantees of the Rome Statute. To “adopt” them only insofar as they do not contradict the 1973 Act results in an incoherent hybrid regime — a legislative camouflage designed to create an appearance of compliance with international standards without actually ensuring substantive or procedural parity.
42. That it is further submitted that the 2024 Amendment’s retroactive application from 6 January 2009 directly offends the principle of legality (nullum crimen sine lege, nulla poena sine lege) recognised in the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a State Party, and the Constitution of Bangladesh. Retroactive criminal legislation, particularly when it expands the scope of criminal responsibility or redefines the elements of the crimes, could potentially undermine the accused’s fundamental right to fair notice and the ability to prepare an effective defence.
43. That it is further submitted that the mode of enactment of these amendments—by Ordinance rather than by parliamentary process—raises serious constitutional and institutional concerns. The Ordinance was promulgated during a period when Bangladesh was under the authority of an Interim Government led by a body of Advisers exercising limited executive functions under the President.
44. That it is noted that the Appellate Division of the Supreme Court, in its advisory opinion under Article 106 of the Constitution following the events of August 2024, explicitly held that the President, in the absence of Parliament, may appoint Advisers only to discharge “essential executive functions” of an interim nature, in order to maintain administrative continuity. Legislative functions involving substantive policy changes, particularly those with far-reaching implications for criminal liability and international obligations, fall outside such interim competence. Accordingly, the promulgation of Ordinance No. XIV of 2024 exceeds the permissible constitutional authority of the Interim administration and is liable to be challenged.
45. That it is therefore respectfully submitted that the 2024 amendments, being retroactive, substantively inconsistent, procedurally incomplete, and constitutionally unauthorised, cannot lawfully form the basis of any criminal prosecution under the International Crimes (Tribunals) Act, 1973. The accused-petitioner’s right to a fair, predictable, and legally certain trial has been materially prejudiced thereby, and any charges relying upon such amended provisions are liable to be rejected are bound to be legally unsafe in the long run.
PROCEDURAL AND INSTITUTIONAL DEFECTS
46. That it is stated that despite the concern raised by the OHCHR, the Prosecution hurriedly submitted the Formal Charge in the instant case against the accused-petitioner and others which created a serious risk of miscarriage of justice. The OHCHR in its fact-finding report raised their concern in this regard as follows:
“A number of interlocutors, including some public interest lawyers and human rights defenders, have expressed concern about these proceedings based on the ICT’s controversial legacy, its legal framework and continuing doubts, notwithstanding the change of government, as to its capacity to conduct genuinely independent, fair and effective proceedings. OHCHR was informed that ICT prosecutors are under pressure to move complex cases forward quickly to respond to public demands for justice, while lacking the capacity and resources to investigate, gather evidence, protect witnesses and conduct fair prosecutions through to judgment. Some interlocutors advanced that a State referral of the situation to the International Criminal Court (ICC) in The Hague would be preferable to avoid perceptions of partiality and ensure independent and impartial justice.” (Para 254)
47. The OHCHR in its Fact Finding Report further observed as follows:
“Bangladesh’s regular justice system does not have an independent professional prosecution service that could oversee and guide police investigations. Instead, lawyers are 71 appointed without clear and objective criteria on an ad hoc basis to present cases prepared by the police in court.524 The current prosecution system provides the Government with opportunities to provide lawyers with lucrative assignments based on their political loyalty and to control the prosecution of cases through hand-picked prosecutors.” (Para 322)
48. That it is stated that the OHCHR in its fact-finding report categorically recommended to consider referring the situation described in the said report to the Prosecutor of the International Criminal Court for investigation, in line with Article 14 of the Rome Statute (Para AAAA349). On March 6, 2025 Mr. Toby Cadman, Special Advisor to the learned Chief Prosecutor also urged the Interim Government of Bangladesh to refer the cases of the July-August massacres to the International Criminal Court in The Hague [https://www.thedailystar.net/news/bangladesh/news/toby-cadman-urges-govt-refer-july-massacre-case-the-icc-3841326]. But the Prosecution without considering the aforementioned recommendations hurriedly submitted the Formal Charge which manifestly shows that the Prosecution is being driven by pressure to conclude the trial by whatever means. In fact, OHCHR was informed that learned prosecutors are under pressure to move complex cases forward quickly to respond to public demands for justice, while lacking the capacity and resources to investigate, gather evidence, protect witnesses and conduct fair prosecutions through to judgment as evident from Para 254 of the fact-finding report.
49. That in ICT-BD Case No. 02 of 2025, out of the three accused persons one accused namely Chowdhury Abdullah Al Mamun, former Inspector General of Police was made an approver whose confessional statement has been made part of the prosecution document in the present case [Prosecution Documents (RãZvwjKv, wR¤§vbvgv I ¯§viKg~‡j cÖvß `vwjwjK cÖgvYcÎ) Page 427-434]. But recently a controversy arose over his being approver in the said case [https://www.thedailystar.net/news/bangladesh/news/will-review-mamun-file-action-4114011]. After change of the Chief Prosecutor of the International Crimes Tribunal, Bangladesh, the newly appointed Chief Prosecutor has expressed in public that regarding the matter investigation will be undertaken [https://www.prothomalo.com/ bangladesh/5l20yspuw7]. As such the said controversial statement cannot be used in the present case.
50. That it is further stated that the present proceedings initiated against the accused-petitioner widely perceived as politicised and the selection and conduct of prosecution reflect lack of impartiality. The immediate past Chief Prosecutor and members of his team suffer conflicts of interest, having previously represented/supported the 2024 quota protesters, the very constituency now posited as persecuted, vitiating prosecutorial impartiality. This is analogous to the ICC’s Duterte matter where Prosecutor Karim Khan KC was disqualified due to prior involvement with victims; mutatis mutandis, a like conflict taints the instant prosecution. [Source: https://www.reuters.com/world/asia-pacific/icc-judges-disqualify-icc-prosecutor-khan-duterte-case-court-document-shows-2025-10-14/] and as such the formal charge is liable to be rejected.