Bangladesh’s newly established International Crimes Tribunal (ICT) is currently prosecuting cases arising from alleged crimes against humanity committed during the previous regime, under the Awami League rule, between 2009 and 2024. And ICT judges have been at pains to demonstrate that the law and procedures governing their court meet international standards. In a recent judgement involving killings in Ashulia on August 5, 2024, the bench declared that the 1973 International Crimes (Tribunals) Act, together with its corresponding rules of procedure, constitutes “a living embodiment of the principles of due process of law and fair trial”. The Act, the judges continued, “not only meets the basic requirements of criminal adjudication, but also reflects an evolved understanding of human rights and fairness, consistent with internationally recognised legal standards”.
But such statements remain to be showcased in court, even though the new trials – most of which concern the violent government crackdown on student protests that precipitated the regime’s fall in August 2024 – are intended to mark a decisive break from the trials conducted under the Awami League government. Those earlier proceedings – which prosecuted crimes committed decades earlier during the 1971 war of independence – were widely condemned by human rights organisations as “glaring violations of fair trial standards”, with “serious flaws in the law and rules of procedure”.
When the interim government took office in August 2024, it made some meaningful reforms. In particular it revised the definitions of offences, to align more closely with those set out in the Rome Statute of the International Criminal Court (ICC). But many of the central procedural flaws of the previous Act and its rules remain intact, and in some respects are worse than the laws applied under the Awami League.
Detentions only based on “necessity”
Under Article 58 of the ICC’s Rome Statute, a warrant of arrest may only be issued once a pre-trial Chamber has examined the evidence submitted by the prosecutor and is satisfied that there are “reasonable grounds to believe the person has committed a crime”; that the arrest of the person “appears necessary” to ensure the person’s presence at trial; to ensure that the person does not obstruct or endanger the investigation; or to prevent the person from continuing with the commission of a similar crime.
Bangladesh’s current ICT rules of procedure, however, set no evidential threshold for arrest. Rule 9(1) allows the Tribunal to issue a warrant on the investigating officer’s own view that it is “necessary”, a term the rules leave undefined. Far from improving the ICT framework, this represents a regression: the Awami League-era rules at least required the prosecution to satisfy the Tribunal that arrest was "necessary for effective and proper investigation”, which at the time was an inadequate threshold but more demanding than what has replaced it. It should be noted, however, that if the ICT wants to arrest a person who is already in detention on a non-ICT case, then the Tribunal does need to show that the detention is “necessary for effective and proper investigation”.
The inadequacy of these detention standards is thrown into sharper relief by comparison with Bangladesh’s own domestic criminal law, under which a magistrate may only detain a person if satisfied that the evidence against them "is well founded". As a result, on the question of arrest and detention, the ICT rules fall short not only of international standards, but of the ordinary law of Bangladesh.
The consequences are tangible. Since August 2024, the Tribunal has not turned down a single request by the prosecution for an arrest warrant. Its recent approval of the arrest of two journalists on what appeared to be unfounded grounds has raised concerns. More broadly, dozens of people have been detained by the Tribunal for months without charge – some apparently arrested without legitimate evidence. Among the most striking cases are those of Faruk Khan, a 75-year-old former minister of civil aviation and Dr. Tawfiq-e-Elahi Chowdhury, an 80-year-old former energy adviser to Sheikh Hasina, both detained without charge for 20 months.
Refusal to provide bail
These prolonged pre-charge detentions reflect not only the ICT’s rules on arrest but also the Tribunal’s practice of refusing bail. Unlike the Rome Statute, ICT rules of procedure set out no criteria to guide the Tribunal in determining whether bail should be granted or not – a significant due process gap in itself. Rule 9(6) simply states that every three months the Tribunal may review its “order relating to the detention of the accused”. In practice, the Tribunal has not released a single detained person on bail.
Its most telling illustration is the Tribunal’s treatment of Rule 9(5) which, in effect, requires the Tribunal to release a detained person who has spent a year in custody without charge – unless “exceptional circumstances” exist, in which case the judges must record their reasons in writing. Yet, the Tribunal has not released a single person who has crossed that one-year threshold, nor has it put on record any “exceptional circumstances” to justify not doing so, as the rules require.
One example involves Dr. Tawfiq-e-Elahi Chowdhury, detained for nearly one year and a half, when he made a formal application for bail in April 2026. In response, the Tribunal simply adjourned the application for bail for three months.
Failure to provide reasons for arrest
A further significant flaw in both the rules and their application concerns the right of the suspects to be informed of the reasons and the evidential basis of their arrest. Under the Rome Statute, this information must be embedded in the arrest warrant itself and verified as having been communicated to the accused.
Rule 9(3) of the ICT rules states that “at the time of executing the warrant of arrest … a copy of allegations is to be served upon such person”. However, three words are added to this which effectively strip the requirement of any force: these words are, “or later on”.
As a result, the practice is that an ICT accused waits weeks or months before receiving any written account of the allegation against them. The case of the two journalists Mozammel Babu and Farzana Rupa, arrested by the ICT on May 14, 2026, is illustrative: more than two months after their arrest, neither had yet received a copy of the allegations against them. This delay is not uncommon. And it is not just a procedural technicality. The right to be informed promptly of the reasons for one’s arrest is a foundational due process guarantee, recognised in of the International Covenant on Civil and Political Rights, in the Rome Statute, and in the Awami League-era rules that the current government chose to weaken.
“Arrest should be based on a clear judicial threshold supported by evidence, not an undefined assertion of necessity,” says Barrister Khan Khalid Adnan who has written on the tribunal process. “And anyone detained must be told promptly and meaningfully why they are being held. Accountability for grave crimes and due process are not competing objectives; the legitimacy of the ICT depends on both.”
No right to appeal
These procedural failings are compounded by the absence of any right to challenge arrest, detention, or bail decisions before a higher court.
Sections 21 and 21A of the 1973 Act permit appeals to the Appellate Division only against a final judgement of the Tribunal or a sentence imposed for contempt of court. No interlocutory decision – including decisions on arrest warrants, pre-charge detention, or bail – can be appealed to any other court. A person detained without charge, denied bail, or arrested on no legitimate evidential basis, has no statutory avenue to challenge any of those decisions before an appellate body.
This is flatly inconsistent with international standards. Article 82(1)(b) of the Rome Statute provides an express right of interlocutory appeal to the Appeals Chamber against any Pre-Trial Chamber decision to grant or refuse interim release. It is also inconsistent with Bangladesh’s own domestic criminal law, which provides not one but a three-tiered process of appeal.
The cumulative effect is that an accused person before the ICT has fewer procedural rights relating to arrest, detention and bail than a person detained under an ordinary criminal offence under Bangladeshi law, and far fewer than those guaranteed under the international framework the Tribunal’s judges claim to embody.
The concerns are not confined to these pre-trial issues. They also apply to what happens once the trial itself begins.
