Transitional Justice in Bangladesh: An Evaluation of the Role of International Crimes Tribunal for Prosecuting the Crimes of the Liberation War of 1971

Introduction

The International Crimes Tribunal (ICT) in Bangladesh was established as a domestic mechanism to address the atrocities committed during the Liberation War and to break the cycle of impunity that had long plagued the nation. Driven by early calls from leaders such as Sheikh Mujibur Rahman and influenced by recommendations from international legal experts, the ICT was created under the ICT Act, 1973. Its mandate was to swiftly prosecute those responsible for war crimes, crimes against humanity, and violations of international humanitarian law. 

Although alternatives like an international tribunal were proposed, pragmatic considerations led to the formation of a domestic body capable of rapid action. However, this expediency came at a cost, as compromises in legal rigour and procedural fairness emerged. The ICT’s establishment reflects a broader struggle within transitional justice: balancing the urgent need for accountability with the imperatives of due process and comprehensive redress for victims.

Historical Background of International Crimes Tribunal Bangladesh

Sheikh Mujibur Rahman advocated for the trial of the war criminals from a very early stage inof the independence of Bangladesh. Even though the United Nations High Commissioner for Human Rights promoted the idea of such a trial, there was not enough support for the implication of the project. Moreover, the Commission of Jurists suggested forming an international tribunal under the United Nations for the trial of war criminals instead of establishing a domestic tribunal. One of the reasons behind the suggestion was the experience of the International Military Tribunal at Nuremberg, where the judges were exclusively appointed from the victorious countries.

Moreover, the commission provided such a suggestion so that the state or government did not need to pass a retroactive law. Instead, the perpetrators could be tried as per existing international law. Notably from the Pakistani side, the Hamoodur Rahman Commission recommended the trial of war criminals and demanded an investigation to prosecute the senior army commanders who committed the crimes during the liberation war of Bangladesh. However, no serious implication of the recommendation or initiative has been taken to date. 

On January 24th, 1972, The Bangladesh Collaborators (Special Tribunal) Order (Collaborators Order) was enacted with the vision of putting the collaborators of the Pakistani armed forces on trial. This law was enacted as a presidential order, and this order was amended three times. Moreover, a Special Tribunal was established to try the collaborators with exclusive jurisdiction under the Collaborators Order.

Additionally, the government passed the Bangladesh National Liberation Struggle (Indemnity) Order, 1973 (Indemnity Order), a few months before the enactment of the ICT Act, 1973, which is still in force. The purpose of passing the law was to protect the people who committed crimes for independence during the liberation war, participating on behalf of Bangladesh. Another reason for enacting the Indemnity Order was to maintain or restore order in the country. Thus, the cases concerning such crimes had to be withdrawn according to this law, as the fighters who committed crimes for independence were barred from prosecution. 

ICT Act, 1973 was drafted by national and international experts and was enacted on July 20th, 1973. Two of the most prominent contributors to this draft were Professor Hans-Heinrich Jescheck, who was the Director of the Max Planck Institute for Foreign and International Criminal Law, and Professor Otto Triffterer, who was regarded as one of the best legal thinkers and academicians. The aim of enacting the ICT Act, 1973 was to bring the main perpetrators to trial. 

According to the act, irrespective of nationality, the perpetrator being any person who is a member of the armed, defence or auxiliary force, couldan be tried. Through this act, the scope of the jurisdiction of the International Crimes Tribunal, i.e. crimes against humanity, crimes against peace, genocide, war crimes, violation of any humanitarian rules defined in the Geneva Conventions of 1949, and other crimes under international law was defined. Notably, in 1973, the first amendment of the Constitution took place, with the intention of resolving the issues regarding retroactivity of the law. 

Transitional Justice: Aims and Measures

There is no universal definition of transitional justice. However, according to the United Nations it can be, “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”. Moreover, the objective of the transitional justice mechanism is to bring out the truth, justice, and reconciliation that can contribute to peace and democracy. The concept of transitional justice comprises two theories of justice: retributive justice and restorative justice. Through criminal trials and imposing non-criminal sanctions, retributive justice can be achieved. To elaborate, retributive justice aims to establish individual accountability, end impunity, and punish the guilty, whereas restorative justice aims to achieve reconciliation and conflict resolution, as it considers crime as a conflict between victims, perpetrators, and affected society. 

The application, combination, and effectiveness of the measures of transitional justice are dependent on the specific circumstances of the particular case, where an individual approach must be taken while considering some key factors. To elaborate, factors such as economy, politics, society, culture, and religion play a key role in establishing the goals and determining the feasibility of different transitional justice mechanisms. However, judicial proceedings, amnesties, truth and reconciliation commissions, reparation programmes, lustrations, security sector reforms, memorialisation efforts, and public apologies are considered to be the principal mechanisms. Notably, the restorative justice mechanism is followed in case of truth commissions, reparations, and traditional mechanisms, whereas criminal trials and lustrations primarily follow the retributive justice mechanism.

Transitional Justice in Bangladesh: Determining and Limiting Factors 

In the case of Bangladesh, the process of transitional justice is influenced by certain factors, i.e. cultural aspects, financial resources, nature of the conflict, political environment, and timespan of the commission of crime. There exists a substantial influence on the culture of impunity regarding the nature of the conflict. The main perpetrators of the crimes, the Pakistani army, were not the nationals of the seceded Bangladesh. As a result, the Pakistani army not only evaded the criminal responsibilities but also escaped from the moral responsibilities since Pakistan never officially assumed responsibility for the crimes committed during the liberation war of Bangladesh, nor did they ever publicly apologise for the commission of crimes. 

Even though the Pakistani Women’s Rights Associations have issued apologies for the commission of sexual violence as a symbolic gesture, it cannot be considered a substitution for an apology from the Pakistani government. Moreover, Pakistan’s refusal to prosecute the perpetrators obstructs the process of ending impunity. Moreover, the Pakistani national narrative differs from the narrative of Bangladesh, with Pakistan not only denying the army’s involvement in the crimes but also accusing Bengalis of betrayal as a result of their alliance with India. 

As a consequence, the collective impact of Pakistan’s actions, i.e. the ongoing impunity and denial by Pakistan, hampers the recognition of the suffering of the victims since the main perpetrators remain unidentified and unpunished. Additionally, the political instability in Bangladesh has had a significant influence on the country’s transitional process. It is because the leading parties possess different perceptions regarding the liberation war of Bangladesh as they do not favour the process of coming to terms with the past. 

The forceful imposition of the narrative in Bangladesh hampers the process of transitional justice, as criticism and different perspectives are suppressed through legal reinforcement. Moreover, the ICT is used as a mechanism to suppress such criticism. To elaborate, publishing malicious statements in the media, misinterpreting or devaluing any government publication, and trivialising any information about the victims regarding the liberation are criminalised in Bangladesh. As a result, such legal reinforcement curtails freedom of speech and impedes historical research.

Additionally, there exist issues related to the shortage of evidence, which is caused by the long lapse of time since the Liberation War, as victims as well as perpetrators havinge passed away. However, it impedes the process of transitional justice as victims’ accounts remain untold, and the perpetrators remain unpunished and unidentified. As for trials concerning acts of sexual violence, the procedural mechanisms are different from those in Western societies, as religious factors play a key role in shaping the process. Notably, the process of transitional justice is dependent on financial resources. As a result, the possibility of implementing different measures to a high degree is limited without financial contribution from the international community. Due to Bangladesh’s reliance on limited financial resources, the lack of sufficient funding poses a major obstacle to implementing additional non-judicial mechanisms under the ICT.  

International Crimes Tribunal as the Transitional Justice Mechanism 

The establishment of the ICT represents a significant milestone, with its swift initiation of trials and executions domestically, compared to the slower pace of international tribunals. However, as the ICT was established and started functioning in a relatively short amount of time, it compromised the quality of jurisprudence and legal frameworks, raising doubts about its effectiveness in fully addressing impunity, especially since Pakistani perpetrators, shielded by amnesties, remain untried due to diplomatic tensions and lack of international support.

The ICT’s jurisdiction includes foreign nationals, yet no absentia trials have been pursued. Additionally, despite prosecuting Bangladeshi nationals, the ICT’s capacity limits it to a fraction of the estimated 3,000 pending cases, with no clear strategy for comprehensive accountability. Flawed legal processes, including reliance on membership-based guilt and excessive judicial notice, undermine individual accountability, violating principles like the presumption of innocence. Societal pressure, exemplified by the Shahbag movement’s demand for death penalties and the tribunal’s lack of impartiality, further questions its ability to deliver fair justice. Evidence gaps due to wartime destruction exacerbate these issues.

The ICT also falls short in serving justice to victims. While trials offer moral recognition, victims’ rights are sidelined in the ICT Act, with no participatory role beyond witnessing. Inadequate protection exposes testifying victims to harassment, and female victims, particularly rape survivors, face patriarchal biases in judgments, reinforcing gender inequality. Accessibility is another barrier, i.e. judgments in English, untranslated into Bengali, exclude most of Bangladesh’s population, where literacy is 61 percent and internet access is limited. This hampers the tribunal’s outreach and transitional justice goals. 

Moreover, the ICT’s contribution to the rule of law is mixed. While its efficiency contrasts with Bangladesh’s overburdened legal system, its procedural flaws lag behind domestic standards, potentially weakening legal norms. Public opinion reflects distrust, viewing trials as unfair yet necessary, indicating the ICT’s failure to bolster judicial confidence despite curbing impunity symbolically.

Regarding truth, the ICT reinforces a state-sanctioned Liberation War narrative, using judicial notice to affirm pre-set ‘facts’ rather than fostering societal discourse. Scandals involving coerced or missing witnesses undermine case-specific truth-finding, though the tribunal has countered denialism about wartime atrocities, offering victims national acknowledgement. Lastly, reparations remain minimal. The ICT lacks authority to enforce compensation, and while separate measures like pensions for freedom fighters exist, they reach few victims, especially rape survivors living in poverty. Medical and psychological support are absent, limiting the tribunal’s restorative impact.

Conclusion

The ICT has played a significant role in Bangladesh’s transitional justice process by decisively challenging a long-standing culture of impunity. Its rapid proceedings and symbolic executions have underscored a strong governmental commitment to addressing past atrocities. However, its procedural shortcomings—such as reliance on broad interpretations of liability and limited victim participation—have raised serious questions about the depth of justice achieved.

Diplomatic constraints have also prevented the prosecution of key foreign perpetrators, further limiting the tribunal’s comprehensive impact. While the ICT has contributed to shaping a state-sanctioned historical narrative and provided a measure of accountability, its legacy remains mixed. The challenges it faces highlight the inherent difficulties in balancing swift retributive justice with the broader goals of restorative justice, truth, and societal reconciliation in a complex post-conflict environment.

Bibliography

Primary Sources

1. Bangladesh National Liberation Struggle (Indemnity) Order 1973.
2. International Crimes (Tribunals) Act 1973 (Act No XIX).

Secondary Sources

Books

1. Bina D’Costa, Nation BuildingNationbuilding, Gender and War Crimes in South Asia (1st edn, Routledge 2011).
2. International Commission of Jurists Secretariat, The Events in East Pakistan, 1971: A Legal Study (International Commission of Jurists 1972). 
3. Miriam Beringmeier, The International Crimes Tribunal in Bangladesh: Critical Appraisal of Legal Framework and Jurisprudence (BWV Verlag 2018).

Journals

1. Miriam J Aukerman, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal.
2. Niall MacDermot, ‘Crimes against Humanity in Bangladesh’ (1973) 7 International Lawyer.
3. Suzannah Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation’ (2010) 21(2) Criminal Law Forum.
4. Yasmin Saikia, ‘Insāniyat for Peace: Survivors’ Narrative of the 1971 War of Bangladesh’ (2011) 13(4) Journal of Genocide Research.

Reports

1. Hamoodur Rahman Commission, Report of the Hamoodur Rahman Commission of Inquiry into the 1971 War (Government of Pakistan 1974).
2. UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (23 August 2004) UN Doc S/2004/616.

News Articles

1. David Bergman, ‘The Politics of Bangladesh’s Genocide Debate’ New York Times (New York, 5 April 2016) https://www.realclearworld.com/2016/04/05/the_politics_of_bangladeshs_genocide_debate_174572.html accessed 4 March 2025.
2. Tuhin Shubhra Adhikary, ‘Government Plan Not Welcome’ The Daily Star (Dhaka, 17 August 2015) https://www.thedailystar.net/backpage/govt-plan-not-welcome-128119 accessed 5 March 2025.

Websites

1. The World Bank, ‘Literacy Rate, Adult Total (% of People Ages 15 and Above)’ (2015) http://data.worldbank.org/indicator/SE.ADT.LITR.ZS accessed 18 December 2016.