The International Crimes Tribunal of Bangladesh (ICT-BD) was established by the International Crimes (Tribunals) Act 1973 to prosecute international crimes committed during the liberation war in Bangladesh. Although Bangladesh is a member state of the Rome Statute, the International Criminal Court (ICC) cannot exercise its jurisdiction as the crimes were committed long before the Rome Statute’s entry into force in 2002.

The ICT-BD is a domestic judicial body constituted under legislation enacted by parliament and is not obliged by the provisions enshrined in the Rome Statute (The Chief Prosecutor v Muhammad Kamaruzzaman, para. 132). The ICT-BD has mostly followed the customary rules of international crimes developed by the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda (hereinafter ad hoc Tribunals).

Previously, the jurisprudence of the ad hoc Tribunals also applied the decisions of the Nuremberg and Tokyo Tribunals as evidence of customary international law. Subsequently, the International Law Commission found that decisions of international courts and tribunals are a subsidiary means of finding the existence and content of rules of customary international law (ILC Draft Conclusions 2018, Conclusion 13).It also appears that the ICT-BD has invoked interpretations provided by the ICC and the Special Court for Sierra Leone (SCSL) (The Chief Prosecutor v Salauddin Quader Chowdhury, para. 38); however, none of them is followed as an obligation. Despite there being no obligation to follow judicial precedents established by other international criminal courts (Prosecutor v Kupreskic, para. 540), judicial decisions are significant as they indicate, at least, the presence of opinio juris (ibid).

While it is not mandatory for states to follow customary rules, domestic tribunals generally pay particular attention to applying rules of customary international law. Antonio Cassese asserts that “it falls to courts, both national and international, to try to cast light on, and give legal precision to, rules of customary nature, whenever their content and purport is still surrounded by uncertainty, as well as to spell out and elaborate upon the frequently terse content of treaty provisions.” (Cassese, p. 9)

The ICT-BD also made efforts to identify the customary rules of international crimes. This write-up discusses a few reasons explaining ICT-BD’s compliance and the necessity to apply customary international law.

International Crimes (Tribunals) Act 1973 and the Role of Customary International Law

The International Crimes (Tribunals) Act 1973 pledges to prosecute crimes under international law in its preamble and, thus, the ICT-BD welcomes the application of customary international law whenever needed.

In the Abdul Quader Mollah case, the Appellate Division stated that an ambiguous and unclear provision may accept the application of customary international law in a national court (Bangladesh v Abdul Quader Mollah, p. 260).

Bangladesh follows monism and makes international law a part of national law without incorporation. Therefore, an Act of Parliament is not required to incorporate customary international law in a monist state (Trendtex Trading v Bank of Nigeria, p. 553).

Article 25 of the Constitution of the People’s Republic of Bangladesh includes a provision to respect international law principles. In Bangladesh v Unamarayen S.A. Panama [29 DLR 252] and Professor Nurul Islam v Bangladesh [52 DLR 413], the application of international law, particularly customary international law, was emphasised if statutory provisions appeared ambiguous.

In addition, the application of customary international law receives wider acceptance before the ICT-BD because of the international nature of the crimes. For example, the ICT-BD noted in the Motiur Rahman Nizami case that “the tribunals set up under the Act are absolutely domestic tribunals but empowered to try internationally recognised crimes committed in violation of customary international law.” (The Chief Prosecutor v Motiur Rahman Nizami, p. 20; The Chief Prosecutor v Delowar Hossain Sayeedi, p. 16)

It is, in fact, not wrong if a domestic tribunal prosecutes international crimes based solely on customary international law in the absence of national legislation on international crimes (Akande, in Cassese (ed.), p. 42).

Customary International Law and Statutory Interpretation

Customary international law has also been invoked to determine the intention of parliament when the language of the statute is unclear. Its application can resolve ambiguity in statutory provisions.

In the Pinochet case, the House of Lords provided a specific reason to begin with customary international law to understand legislative intent, as the Genocide Act 1969 did not include Article 4 of the Genocide Convention.

Similarly, the application of customary international law may clarify the intention of the ICT Act 1973 drafters, indicating the need to differentiate between ordinary and international crimes.

However, the ICT-BD deviated from applying customary international law when it treated rape as a crime against humanity while relying on the domestic penal code definition of rape. In the Abdul Quader Mollah case, the Tribunal did not consider the crime of rape as a crime against humanity as developed by the jurisprudence of the ad hoc Tribunals.

In the Appeals Judgment of the Abdul Quader Mollah case, Justice Abdul Wahab stated:

“Murder and rape have been mentioned under the head ‘Crimes against Humanity’ and in our domestic law, namely, the Penal Code both have been defined. In the context, it is pertinent to state that the Penal Code has not been made in-applicable in any proceedings under the Act, 1973. So, when, in our domestic law, the offences of murder and rape have been defined, we need not look to the customary international law or to look to any other jurisdiction for the definition of murder and rape with which the accused has been charged.”

(Bangladesh v Abdul Quader Mollah, para. 262)

On the other hand, the ICT-BD in Delowar Hossain Sayeedi clearly stated that international crimes are undoubtedly crimes under customary international law (The Chief Prosecutor v Delowar Hossain Sayeedi, para. 45).

Nevertheless, the non-application of customary international law does not make the decision of a national court futile; however, it leaves it open to criticism, as the nature of national crimes differs from international crimes. One may argue that applying penal code definitions to international crimes may hamper the drafters’ intention and raise questions regarding specificity and foreseeability.

Principle of Legality and Foreseeability

The application of customary international law is significant because the definition of crimes requires specificity and foreseeability at the time of commission. The principle of legality is always at the heart of debate in international criminal proceedings. It applies at both national and international levels.

Claus states that “the international legality principle does not preclude the direct application of international criminal law by national courts”.

The scope of national law can be broader or narrower than customary international law. An additional criterion in the definition of international crimes may not have a customary basis.

The ICT Act 1973 included “political group” as one of the protected groups of genocide. Neither the Genocide Convention nor customary international law includes political groups as protected groups.

It was affirmed in the Vasiliauskas case that political groups were not foreseeable at the time of commission; therefore, customary international law does not cover political groups. The ECtHR concluded that “there is no sufficiently strong basis for finding that customary international law as it stood in 1953 included ‘political group’ among those falling within the definition of genocide” (Vasiliauskas v Lithuania, para. 175), and it remained narrower in the 1948 Convention and in all subsequent instruments.

The application of customary international law may assist national tribunals in determining the specificity or foreseeability of expanded definitions of international crimes.

Werle asserts that the extended group is neither protected by international treaty nor by customary law (Werle, p. 263).

However, the ICT-BD identified “political group” as a target group in the Salauddin Quader Chowdhury and Zahid Hossain Khokon cases. Islam mentioned in his book that “political group” in the ICT Act 1973 bears contextual merit and is consistent with international law (Islam, p. 109).

However, it is pertinent to mention that a vague and ambiguous rule of customary law may itself raise legality concerns and may not be considered foreseeable at the time of commission.

Conclusion

The application of customary international law is an indispensable part of prosecuting international crimes at both national and international levels. Domestic tribunals remain under an implicit obligation to apply customary international law in order to avoid violating the principle of legality.

Dr. Manjida Ahamed is a Lecturer in Law, Middlesex University, UK.