Bangladesh’s International Crimes Tribunal really must revise its Rules of Procedure to prevent the kind of arbitrary arrests and continuing detentions that are happening to at least some of those detained under it, with the 10 month detention of former Hasina Energy Adviser, Tawfiq-e-Elahi an illustrative example. 

The rules – which allows detention without any evidential threshold – are the same rules as those that existed when the Awami League government was in power, when they prosecuted Jamaat-e-Islami and other leaders.

Then, the ICT defence lawyers criticised the procedural rules relating to detention. Many of these same lawyers, who have now become ICT prosecutors, now seem content with the old rules. Very disappointing.

It is of course up to the Tribunal itself, that is to say the Judges (not the prosecutors), to change its own rules of procedure. It is disappointing that so far, the Judges have not realised that the Rules of Procedure require reform. It will be a good test of their backbone, that is to say of how independent they are from the government as well from the prosecutors and other powerful “retributive” political forces present in the country, as to whether they can make such changes.

It should be noted that the current interim government did make significant (though not necessarily sufficient) revisions to the International Crimes (Tribunal) Act, that brought it closer to international standards. As a result, the trials now should be fairer than those that took place under the Awami League – but that does not necessarily mean they will be fair enough.

Now, there needs to be changes to the Rules of Procedure.

However, whilst we wait for these Procedural Rules changes, that does not mean that the prosecution should just sit on its hands. In relation to those currently detained, the prosecutors should undertake an assessment of each detainee and determine whether the tribunal’s investigative team have actually collected substantive and probative evidence of their involvement in crimes against humanity that justifies them remaining under detention. If they don’t have the evidence, the prosecutors should apply for those detainees to be released.