Abstract
The International Crimes Tribunal Bangladesh (ICTB) was set up by Bangladesh through the adaptation of the International Crimes Tribunal Act 1973, as an internal mechanism trying to prosecute and punish Bangladeshi perpetrators who committed international crimes in Bangladesh liberation war in 1971. After a long disappearance from the public eye, the Tribunal was reemerged in 2010. The recent cases decided by the Tribunal have revealed that the international crimes; namely, crimes against humanity, were allegedly committed in 1971, while the relevant Statute was enacted in 1973, and was implemented in 2010. Recently, the ICTB is prosecuting crimes against humanity retroactively, which might have violated the prohibition of penalizing certain conducts committed by the perpetrators before the enforcement of such conduct as a law banning such demeanor as an offense. Therefore, this study firstly analyzes the rule against retroactivity in international criminal law. Secondly, it investigates the justification of the retroactive criminalization of crimes against humanity at the first International Military Tribunal, Nuremberg, and its crystallization into the regional and international legal instruments. Thirdly, the study examines the characteristics of crimes against humanity as an international crime, to scrutinize whether the ICTB needs to fulfill such requirements either in 1971 or 2010. Then, it illustrates various judgments of the ICTB, demonstrating that it does not comply with the rule prescribed by international laws either in 1971 or 2010, in prosecuting crimes against humanity retroactively. Lastly, the study concludes by forwarding ways necessary to the ICTB in retroactive prosecution of international offenses.
Highlights
The International Crimes Tribunal Bangladesh (ICTB) was commenced through the enactment of the International Crimes Tribunal (ICT) Act 1973 by the Bangladesh Legislative Assembly after the Liberation Conflict of 1971, in which the Eastern part separated from the Western part of the Pakistan to form the currently sovereign State of Bangladesh
All of the arguments are given in the verdicts of the ICTB put a question on whether the rules of retrospectivity need to comply with the customary international law of 1971, the time of the commission of the perpetrated crimes or not
There is a rationale available that international criminal law cannot function in a vacuum; so, there is a minimum customary international law requirement that needs to be reflected in prosecuting crimes against humanity retroactively to prove the impartiality of the ICTB
Summary
The ICTB was commenced through the enactment of the International Crimes Tribunal (ICT) Act 1973 by the Bangladesh Legislative Assembly after the Liberation Conflict of 1971, in which the Eastern part separated from the Western part of the Pakistan to form the currently sovereign State of Bangladesh. All of the arguments are given in the verdicts of the ICTB put a question on whether the rules of retrospectivity need to comply with the customary international law of 1971 (i.e., offenses need to be committed in an interstate armed conflict), the time of the commission of the perpetrated crimes or not. Since the ICTB is trying to prosecute international crimes retroactively in the domestic courts; it is inevitable to ask whether the “nullum crimen” principle is prohibited in the national and international law. After WW II, the ruling of non-retroactivity in criminalizing offenses was considered as the issue of the customary rule of international legal order applicable for domestic and international adjudicating bodies (Gallant, 2009) One of the established examples is crimes against humanity that cannot go unpunished in any means, which was prosecuted at the IMT retroactively, analyzes subsequently
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