The International Crimes (Tribunals) Act 1973 (“ICTA”) was enacted in an attempt to prosecute the perpetrators of atrocity crimes committed in Bangladesh in 1971. After struggling with impunity for over four decades, Bangladesh instituted its first international criminal tribunal under the Act in 2010. In his presentation, Hossain chose to take a closer look at one of the key areas of contention during the trial, i.e. the question of whether the definition of genocide and crimes against humanity under the ICTA was in comport with the principle of legality. At the outset, he outlined the two positions that have emerged thus far, the first of which is that the definitions in the ICTA must mirror those found in the Rome Statute to reflect current international standards. Alternatively, that the definitions should reflect customary international law at the time of the commission of the crimes i.e. 1971. Hossain argued in support of the latter claim - because otherwise the definitions would fall foul of the principle of legality.
Preliminarily, Hossain discussed the scope of the principle of legality. Originally conceived as a response to the system of discretion in the judicial and legislative sphere, the principle is essentially that persons who reasonably believed that their conduct was lawful and protected from retroactive prosecution, should not be prosecuted.
However, the decisions of the International Military Tribunal at Nuremberg, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda all suggest that the principle of legality does not bar progressive development of the crime, provided the crime was already prohibited in custom or in the general principles of law recognised by civilised nations.
Relying on this characterization, Hossain addressed the question of whether the absence of the requirements of ‘widespread and systematic attack’ and ‘nexus to an armed conflict’ in the ICTA definition of crimes against humanity was compatible with the principle of legality. In order to unpick these criticisms, Hossain traced the development of crimes against humanity up until 1971. The crime materialised in positive international law with the Charter of the International Military Tribunal at Nuremberg. Yet, despite its inclusion in the criminal statutes that followed, the element of ‘widespread and systematic attack’ received sufficient support only in the 90s. Similarly, although initially connected to war crimes, the nexus requirement was severed in the amended definition of the crime in Control Council Law No. 10, the Fourth report of the 1954 Draft Code of the International Law Commission, and many domestic charters.
Presumably, these developments impacted the Bangladeshi’s Trial Chamber’s ruling that the ICTA was compatible with customary law. However, in the Molla decision that followed, the Supreme Court barred the application of customary international law to trials under the 1973 Act, and shed the requirements of nexus and ‘widespread and systematic attack’. Despite having imposed what seems to be a fairly strict standard, the Tribunal went on to observe that the acts of killing and rape were widespread and systematic. Hossain argued that this was proof of the Court being in two minds. Instead, the Court ought to have engaged with the principle of legality to hold that the requirements had not attained customary status by 1971, and hence could not be read into the ICTA.
Hossain then addressed the issue of whether the inclusion of political groups in the definition of genocide in the ICTA was permissible. Now the ICTA definition largely embodies the content of the classical definition of crime as under the Genocide Convention. However, it ventures beyond the four protected groups (racial, religious, ethnic and national groups). According to Hossain, this did not ipso factorender the definition excessive or unlawful. For one, the UN General Assembly in its 1946 Resolution explicitly recognised protected for political groups, remarking that excluding such groups would enable governments to suppress dissidents and insulate political leaders from scrutiny. From the negotiations preceding the 1948 Genocide Convention, it appears that political groups were dropped in order to avoid any delay in acceptance of the Convention which might have been induced by variances of opinion as to what constituted a ‘political group’. As a result, Bangladesh was within its rights to deviate from practice and include political groups within its definition of genocide.
In conclusion, Hossain observed that while it may appear that the Bangladeshi law ignores contemporary developments in international criminal law, the principle of legality only demanded that the ICTA reflect, by and far, the customary law position as of 1971 – which it did. Furthermore, aspects such as the inclusion of political groups where it seems like the definition may have exceeded the scope of custom, can be justified as permissive progressive developments.
In the question-answer session that followed, Hossain was asked about the conception of the principle of legality as one which protects the defendant. Using this premise, it could be argued that by excluding the nexus and widespread and systematic attack requirements, the Bangladeshi law had made it easier to convict the accused, and therefore the principle of legality was violated. Hossain noted that one has to first establish that such an exclusion was even permissible i.e. whether it would amount to retrospective punishment. It is at that preliminary stage that the question of customary law comes into the picture.