Criminal courts are not suitable for the trial of political crimes

British investigative journalist and legal analyst David Bergman has long been researching and reporting on Bangladesh's International Crimes Tribunal (ICT), the process of trying historical crimes, human rights, and the transparency of the legal framework. His observations in all these areas are widely discussed in international and political circles. He had a comprehensive conversation with 'Agamir Somoy' regarding the recent political context, the role of the interim and subsequent governments, the jurisdiction of the International Criminal Court (ICC), and judicial complexities. The interview was taken by Sayeed Jubary.

Q1: Although the prosecution of war crimes from 1971 and the crimes committed during the July–August 2024 uprising stem from two different historical contexts, what are the primary legal bottlenecks in prosecuting historical atrocities in Bangladesh, and how do these issues compromise the credibility of the judicial process?

A: The 2024 killings are contemporary: prosecutors have access to video footage, telephone intercepts, and witnesses whose memories have not been eroded by decades of intervening events contrary to the evidences that simply did not exist, or existed in far weaker forms, in 1971. Prosecuting 1971 crimes has always been seemed difficult for the opposite reason: forty years on, video and intercept evidence were essentially unavailable, and eyewitness testimonies had degraded in reliability, as memory typically does that over such a span. This asymmetry matters for credibility because it means the two sets of prosecutions face structurally different risks - 1971 cases riskeed relying on evidence too thin to meet a rigorous standard, while 2024 cases, despite having richer evidence available, risk squandering that advantage if the Tribunal's procedures don't allow it to be tested and presented properly, without a proper application of the laws.

Q2: Compared to international tribunals such as those for Rwanda (ICTR), the former Yugoslavia (ICTY), or Cambodia (ECCC), in which specific areas has Bangladesh’s International Crimes Tribunal (ICT) lagged—and continues to lag—behind in terms of ensuring due process and fair trial standards?

A: This isn't just a question of comparing the Tribunal to international standards - domestic standards matter too. Against international standards, the ICT-Bangladesh falls a long way short: it allows arrest without evidence; trials to begin mere weeks after evidence is disclosed to the defence; no appeal to a higher court against pre-trial orders, including on detention; and broad use of "judicial notice," allowing facts to be treated as proven without evidence being led. The list goes on, and the gap with international practice is not marginal — it's a difference in kind, not degree. Compounding this, prosecutors, defence lawyers and judges alike largely lack experience in international criminal law and are not conversant with the case law that any properly functioning tribunal would need to apply. The interim government did make some improvement to the International Crimes (Tribunals) Act 19973, particularly in relation to the definition of offences, but it made a significant error in not including international judges on the bench — even one of three — and in not embedding international lawyers full-time within the prosecution.

But the Tribunal also falls short of ordinary domestic standards: it operates without the protections found in the Evidence Act, the Code of Criminal Procedure, or the constitution — so the comparison isn't simply "Bangladesh vs. ICTY/ICTR/ECCC," but "the ICT-Bangladesh vs. Bangladesh's own courts."

Q3: In trials dealing with historical crimes, practices like trials in absentia and restricted defense rights significantly diminish international acceptance. What are the established international best practices to mitigate these specific shortcomings?

A: International tribunals have generally been reluctant to permit trials in absentia, on the view that without the accused present and able to instruct counsel, a genuinely fair trial is difficult to guarantee. The Special Tribunal for Lebanon is the notable exception, but it built in two safeguards the ICT-Bangladesh lacks: the right of an accused outside the court's jurisdiction to instruct their own lawyer, and - if they don't exercise that right - the right to a full retrial should they later come within reach of the court. Bangladesh's practice, by contrast, involves the court appointing state lawyers with no instructions from the client they nominally represent. That combination - trial in absentia without either safeguard - is very unlikely to be accepted internationally, however the domestic proceedings are otherwise conducted.

Q4: Ensuring robust legal safeguards for the accused is often misconstrued politically as "showing leniency to criminals." As a human rights advocate, how should one address and challenge this prevailing mindset?

A: Legal safeguards are not designed to protect the guilty from consequences; they exist to protect the innocent from wrongful conviction and everyone from the arbitrary exercise of state power. A conviction obtained without fair process is fragile — vulnerable to being overturned, discredited, or cited as precedent for future injustice. What's striking in the Bangladesh context is that every major party currently operating — the BNP, Jamaat-e-Islami, the NCP — has either been on the receiving end of politicised prosecution or has criticised the Awami League government for exactly this practice. Yet rather than using that shared experience to build in better safeguards, the instinct across the political spectrum has been to re-use the same model against those who used it against them. The cycle continues – and will continue.

Q5: Under the Awami League administration, the ICT faced severe criticism for being used to suppress political opposition. To prevent a recurrence of such 'victors' justice' under the interim or any future government, what essential legal and administrative reforms must be prioritized?

A: There needs to be an overhaul. The appointment of respected, non-partisan investigators and prosecutors; the involvement of international lawyers both within the prosecution team an amongst the judges; and a re-writing of trial procedure.

Q6: In terms of long-term legitimacy and effectiveness, how would you weigh involving an independent international body like the International Criminal Court (ICC) against relying purely on domestic judicial mechanisms for historical crimes?
British investigative journalist and legal analyst David Bergman. Agamir Somoy graphics.

A: The interim government could have referred at least Sheikh Hasina's trial to the ICC, but doing so would have carried both advantages and costs. The advantage lies in overall legitimacy: an ICC investigation would have met recognised international evidentiary and procedural standards, and any arrest warrant issued against Hasina would have carried weight that a purely domestic finding cannot command, particularly given how the ICT-Bangladesh's own procedures have been criticised. The cost is practical rather than legal — unless India were willing to extradite Hasina, an ICC referral would produce a warrant but no actual trial, leaving the process symbolically strong but substantively stalled. There is also a real risk that referring her case to the ICC could have created procedural complications for the domestic prosecutions running in parallel at the ICT, given the overlapping evidence and witnesses involved. In hindsight, my view is that the better course would have combined both mechanisms: Hasina's case referred to the ICC, while prosecutions of others proceeded domestically at a Bangladesh tribunal that had first been substantially reformed and internationalised — bringing in international judges and prosecutors — so that it could carry credibility even without ICC involvement..

Q 7: South Africa’s Truth and Reconciliation Commission (TRC) is a well-known example of transitional justice. Instead of relying solely on retributive justice, could establishing a 'Truth and Reconciliation Commission' in Bangladesh help resolve its deep-seated, historical political conflicts?

A: A criminal justice response on its own is clearly inadequate. It creates the impression that the only way to secure accountability for those who legitimised past crimes is through prosecution, which in practice results in people who should never have been arrested being detained simply because they held some proximity to power. Criminal trials are also poorly suited to establishing the fuller, more complicated record of who did what and why - something only a process built around testimony and disclosure, rather than conviction and punishment, can really achieve. There should be a route to accountability that sits outside the criminal justice system, and something along the lines of South Africa's Truth and Reconciliation Commission is worth serious consideration. Critically, though, any such process in Bangladesh should not confine itself to the Awami League period - it needs to reach back into prior periods of power as well, including the military and caretaker governments and the BNP-Jamaat period, or it will simply replicate the selective, one-side-at-a-time accountability that has discredited previous efforts.

Q 8: Based on your long career in journalism and legal observation, do you believe Bangladesh can ever construct a judicial framework that is universally recognized internationally and remains immune to future political controversy?

A: At present, the criminal justice system is treated by whichever party holds power as an instrument for self-protection and for pursuing political opponents, rather than as a neutral mechanism for establishing guilt or innocence. This isn't a flaw specific to one government or one tribunal — it is a structural incentive that all parties in office will face, which is precisely why each successive government has continued the pattern it once condemned in its predecessor. Unless a government emerges that is willing to accept constraints on its own power — including an independent judiciary and prosecutorial service it cannot direct — very little will change, because no party currently benefiting from the system's partisanship and politicisation has an incentive to dismantle it while in office. The reforms needed are broadly known and have been articulated repeatedly, but they require somenein power to voluntarily reduce their own future room for manoeuvre, which is a much harder thing to secure than technical drafting.

Q9: Recently, Bangladesh's International Crimes Tribunal (ICT) handed down a major verdict against Sheikh Hasina, while she has concurrently declared her intention to return to the country. From an international law and extradition perspective, how do you evaluate the legal status of a verdict delivered in absentia versus the sovereign right to return? Furthermore, if she does return, how should the court navigate the complex procedural challenge between enforcing the existing judgment and upholding her right to a fresh trial or a legitimate appeal?

A: If Hasina wants to return, there is little the Bangladesh government can do to prevent it from happening and in truth. Technically, the government does want her back, since only her physical presence allows any sentence to actually be enforced; but politically it would may well create significant problems. If she did return, she would be detained, and — assuming no appeal has already been heard — would have a right to appeal her conviction through the ordinary appellate process. Under the current law, however, she would have no right to a fresh trial, which is precisely where the tension the question raises becomes acute: a verdict reached in absentia, without her having instructed her own counsel, is treated procedurally as final and appealable rather than as provisional and subject to being reopened, which is not internationally acceptable.