Unlike in any other criminal court in Bangladesh, no order of the International Crimes Tribunal relating to detention or charge can be challenged before a superior court, and no accused can seek a remedy in the High Court for breach of their constitutional rights.
The ICT is, as a result, effectively unsupervised until the point of conviction or acquittal — with no other court having any oversight role over its conduct of a case. When combined with the fact that the Tribunal is operating in a partisan political environment – in which the prosecution and conviction of Awami League activists and supporters is treated as a given, often regardless of the limitations of the evidence – this makes close scrutiny by journalists and observers of the court's decision-making essential if we don’t want the Tribunal to repeat the mistakes of the past.
The decision by the ICT on 27 July 2026 to “take cognisance” of charges against 41 accused – of which 16 were politicians, 21 police officers, 2 were political activists and another 2 were journalists – in relation to the killing of Hefazet supporters following a rally that took place on 5 May 2013, deserves scrutiny. The offences in question concern “crimes against humanity” and “genocide”.
At the ICT, the Tribunal’s decision to take “cognisance” of a charge is the first step in the case moving towards trial. The rules of procedure provide that the Tribunal shall take “cognizance” only if “examination of the formal charge, the investigation report, the papers, documents and the evidence submitted” disclose “a prima facie case”; that is to say evidence that would allow a reasonable court to convict each of the accused for the particular offences they have been charged with.
To come to such a conclusion, the Tribunal needs to give careful consideration to the evidence, as well as the legal tests required to prove the offence in question.
A key question glossed over at the hearing concerns the charge of genocide, alleged against all 41 accused, and which appears to have been added in handwriting to the formal charge at the last minute.
The offence of Genocide requires an intention to destroy, in whole or in part, a national, ethnical, racial or religious group. In alleging genocide, the prosecution is, one must assume, claiming that by killing Hefazet supporters, the accused intended to destroy "a part" of Bangladesh's Muslim community. But international criminal courts have consistently held that genocide applies only where there was an intention to destroy a "substantial" part of the group in question.
Even if the prosecution could prove that 61 Hefazet supporters were killed, it is unclear how the Tribunal considered that this constitutes a sufficiently "substantial" part of Bangladesh's roughly 150 million-strong Muslim community.
Moreover, the offence of Genocide in international law also requires that the prosecutors had evidence to show that those accused of genocide intentionally killed Hefazet supporters because they were “muslims”. There is no evidence to support that.
Related to this, the "Elements of Crimes" document annexed to the ICC's Rome Statute — which Bangladesh's International Crimes (Tribunals) Act requires its judges to consult — states that genocidal killings must take place "in the context of a manifest pattern of similar conduct directed against that group."
Where is the evidence that at any time during the Awami League period there was a "manifest pattern" of killing people simply because they were muslims?
It is not clear whether, before adding the genocide offence to the formal charge, the prosecution had considered the relevant international case law or the "Elements of Crimes" document. Neither was mentioned during the cognisance hearing.
Amongst the 41 accused, the court has taken cognisance of charges against two activists, Dr Imran Sarkar and Shahriar Kabir, and two journalists, Farzana Rupa and Mozammel Babu, not just for the offence of genocide but also crimes against humanity.
Sarkar and Kabir are accused in connection with their role in the Gonojagoron Mancha, the protests that took place in Shahbagh in February 2013 after the then International Crimes Tribunal sentenced a Jamaat-e-Islami leader to imprisonment rather than death. Sarkar was the Mancha's spokesperson at the time.
The formal charge claims that these two men made “various speeches and statements at different times inciting and instigating the government to commit” offences of genocide and crimes against humanity.
Yet unless these speeches directly called for the killing of Hefazat-e-Islami supporters, there is no precedent in international criminal law for speeches criticising political actors to result in prosecution for “incitement”, let alone conviction. And “instigation” has a high bar: there needs to be an act “directly intended” to provoke a particular perpetrator, or an identifiable group to which the perpetrator belongs, to commit a crime. Before taking cognisance of such charges, one might have expected the judges to examine what the two men are alleged to have said, and to consider whether those statements fell within the international criminal law definitions of incitement and instigation. This does not appear to have been done.
In relation to Babu and Rupa, respectively managing director and reporter at Ekkator TV, the charge sheet claims are narrower than the allegations originally made by the chief prosecutor at a press conference, focusing solely on the documentary "Shomikoron" broadcast over six months after the event.
It claims that the documentary made the Hefazat-e-Islam rally “appear controversial”, “added false information” and attempted “to legitimise or vindicate the government's effort to cover up the matter of the deaths in the incident”.
The Charge sheet also adds that Babu stated at a prime minister’s press conference that took place after the documentary was broadcast, that it proved that “not a single Hefazat-e-Islam protestor had died on May 5.” The charge sheet alleges that together these “incited the government to take a stance against or take measures against Hefazet-e-Islam.”
But, as argued elsewhere, even if the claims about the documentary and about what Babu said regarding it were accurate, how could they “incite” conduct that took place over six months earlier? It is difficult to appreciate how the Tribunal came to its conclusion that there was a "prima facie" case against them.
The Tribunal does, however, have another bite of the cherry when they decide in the next few weeks or months whether to actually frame charges against the accused. In order to do so, the judges have to be of the view that “there is sufficient ground to presume that the accused has committed an offence”.
This requires the Tribunal again to look closely at the evidence and the criminal offences – and, this time, take into account arguments that are made by the defence lawyers.
We will have to wait and see what the Tribunal does next.
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David Bergman is a journalist. He divides his time between London and Dhaka