With tomorrow’s judgment of the International Crimes Tribunal in Bangladesh, in mind. ….

In January 2013, during the first incarnation of Bangladesh’s International Crimes Tribunal — established to prosecute alleged crimes committed during the 1971 independence war — the first conviction was that of Abul Kalam Azad. Like the ongoing trials of the country’s former prime minister Sheikh Hasina and former home minister Asaduzzaman Kamal, now accused of crimes against humanity in relation to the hundreds of killings in July/August 2024, that case of Azad was also conducted in absentia. That is to say, the accused were not present in court, having fled the jurisdiction.

In Bangladesh, in absentia trials are relatively common. The underlying rationale is that fugitives should not be able to evade justice simply by avoiding court. Indeed, in such proceedings in the country, the absconding accused are not even entitled to legal representation. (The ongoing prosecution of Tulip Siddiq in Dhaka for alleged corruption is one such example.) The exception to this is if the offence allows for a death penalty (which is the case with the offences at the ICT) when the court will appoint defence counsel.

This is all noteworthy because, should former Prime Minister Sheikh Hasina and former Home Minister Asaduzzaman Kamal be convicted and sentenced to death tomorrow, few within Bangladesh will raise moral or legal objections to the in absentia nature of their trial. These in absentia convictions – even ones including a sentence of death – are not uncommon in the country.

However, outside Bangladesh, many commentators, human rights organisations, and legal analysts may well view it rather differently. In absentia trials are inherently controversial; most jurisdictions prohibit them, and no international criminal tribunal currently permits them. The sole exception — the Special Tribunal for Lebanon — allowed in absentia trials only under a statute guaranteeing the right to a full retrial if the accused later surrendered.

The central criticism of in absentia proceedings is that, unless significant provisions are provided, they fail to ensure that the accused has an effective defence — a problem very much evident in the present case.

The court-appointed lawyer, though an experienced criminal advocate, has no background in international criminal law. Moreover, the court appointed him to represent both former ministers simultaneously. It is difficult to understand — assuming the judges were motivated by a concern for fairness — why separate counsel were not assigned. Putting to one side the burden of work on the shoulders of this lawyer, the two accused could easily have conflicting defences; for instance, the home minister might seek to shift responsibility to the prime minister, or vice versa.

The defence lawyer received the full body of prosecution evidence a mere five weeks before the trial began. It is telling, that the state-appointed defence lawyer never requested additional time to prepare. When asked on the first day of the trial why he had not sought an adjournment, he replied that he would do so “when necessary” and that he was “ready to cross-examine the first witness.” Any competent lawyer genuinely representing the interests of Hasina or Kamal would have pressed strenuously for an adjournment under such circumstances. It is implausible that any lawyer, particularly one without access to the clients, could adequately prepare defences for two individuals in such a short period involving five counts of crimes against humanity.

Apart from lack of time, it does not seem that court has provided the court appointed lawyer, the resources necessary to conduct any meaningful defence investigation of his own. And, he did not produce a single defence witnesses.

This is not to suggest that the prosecution failed to present to the Tribunal serious incriminating evidence against the accused. It did. It has intercepted audio communications, and the evidence of the former Inspector General of Police (a fellow accused) who provided evidence against both Hasina and Kamal, amongst others.

The point, rather, is that the court appointed counsel was in no way an adequate substitute for a properly resourced defence team, able to challenge the evidence and defend the two fugitive accused in any meaningful manner.

It is not as though those in positions of authority within the Bangladesh government were unaware of the problem of in absentia trials. Several individuals had advised the government to either refer the case to the ICC in The Hague, or if was going to have in absentia trials, amend the provisions within the legislation governing in absentia trials to ensure that the accused had a credible defence.

While positive legislative reforms were introduced into the ICT Act in other areas — particularly in defining certain offences — the government chose to leave the provisions on in absentia trials untouched.

When Abul Kalam Azad was convicted in 2013, I criticised the Tribunal’s reliance on an in absentia process and its flawed attempts at seeking to justify it (link in comment section). At that time, there was limited international interest in the conviction.

The situation is very different now: the current trial involves a former prime minister, who is now based in neighbouring India, and any shortcomings in the proceedings will attract far greater global scrutiny. And with Awami League’s PR machine – which mingles legitimate issues with serious disinformation – at full tilt, the inadequacies of the in absentia trial (amongst other issues relating to the proceedings) will likely be weaponised to try and obscure the evidence that does very definitely point towards the criminal responsibility of the two fugitive accused.