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1. (1) This Act may be called the International Crimes (Tribunals) Act, 1973.
1[(2) It extends to the whole territory of Bangladesh and applies extraterritorially as specified in sub-section (4).]
(3) It shall come into force at once.
2[(4) This Act shall also apply to:
(a) any citizen of Bangladesh who commits a crime under this Act, whether the crime is committed within or beyond the territory of Bangladesh;
(b) any person, regardless of nationality, if any part of the crime is committed within the territory of Bangladesh.]
2. In this Act, unless there is anything repugnant in the subject or context,-
(a) “auxiliary forces” 3[includes forces whether armed or unarmed] placed under the control of the Armed Forces for operational, administrative, static and other purposes;
4[(aa) “disciplined force” means—
(i) the army, navy and air force;
(ii) the police, Rapid Action Battalion, Border Guard Bangladesh, Coast Guard and Ansar;
(iii) any other force declared by law to be a disciplined force within the meaning of this definition;]
(b) “Government” means the Government of the People's Republic of Bangladesh;
5[(bb) “intelligence agency” means any authority, force or entity, established by or under any law which is responsible for the collection, analysis and exploitation of information in support of law enforcement, national security and public safety;]
(c) “Republic” means the People's Republic of Bangladesh;
6[ *** ]
(e) “territory of Bangladesh” means the territory of the Republic as defined in article 2 of the Constitution of the People's Republic of Bangladesh;
(f) “Tribunal” means a Tribunal set up under this Act.
3. 7[(1) A Tribunal shall have the power to try and punish any individual or group of individuals, 8[or organisation,] or any member of 9[any disciplined force, auxiliary force or intelligence agency, who, irrespective of his nationality, commits or has committed, within or beyond the territory of Bangladesh], whether before or after the commencement of this Act, any of the crimes mentioned in sub-section (2).]
(2) The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely:-
10[(a) Crimes against Humanity: namely, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, abduction, confinement, torture, rape, sexual exploitation, enforced disappearance, human trafficking, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or other inhumane acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;
“Explanation:—For the purposes of defining the terms “attack”, “persecution” “enforced disappearance”, “sexual slavery”, “enforced prostitution”, “forced pregnancy”, “enforced sterilization” a Tribunal shall apply the definitions set out in Article 7(2) of the Rome Statute of the International Criminal Court, which Bangladesh has ratified on 23 march, 2010;]
(b) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(c) Genocide: meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial 11[or religious group], such as:
(i) killing members of the group;
(ii) causing serious bodily or mental harm to members of the group;
(iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(iv) imposing measures intended to prevent births within the group;
(v) forcibly transferring children of the group to another group;
(d) War Crimes: namely, violation of laws or customs of war which include but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population in the territory of Bangladesh; murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages and detenues, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(e) violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949;
(f) any other crimes under international law;
(g) attempt, abetment 12[, conspiracy or incitement] to commit any such crimes;
(h) complicity in or failure to prevent commission of any such crimes.
13[(3) For the purpose of determining liability under sub-section (2), a Tribunal shall have regard to the Elements of Crime of the International Criminal Court (ICC), as adopted pursuant to Article 9 of the Rome Statute of the International Criminal Court, to the extent that they are not inconsistent with the provisions of this Act.]
14[4. (1) Any individual or group of individuals, or any member of any disciplined force, auxiliary force or intelligence agency who commits a crime within the jurisdiction of the Tribunal shall be responsible and liable for punishment.
(2) In accordance with this Act, any individual or group of individuals, or any member of any disciplined force, auxiliary force or intelligence agency shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Tribunal if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits, incites or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Tribunal; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
(f) In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.
(3) Any commander, superior officer or leader who orders, permits, acquiesces, incites or participates in the commission of any of the crimes specified in section 3 or is connected with any plans or activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, either knowing or owing to the circumstances at the time should have known or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes, is guilty of these crimes.]
6. (1) For the purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members.
15[(2) Any person who is a Judge, or is qualified to be a Judge, or has been a Judge, of the Supreme Court of Bangladesh, may be appointed as a Chairman or member of a Tribunal.]
16[(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.]
(3) The permanent seat of a Tribunal shall be in 17[Dhaka]:
Provided that a Tribunal may hold its sittings at such other place or places as it deems fit.
(4) If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office.
(5) If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue 18[before the Tribunal represented by other members].
(6) A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.
(7) If, upon any matter requiring the decision of a Tribunal, there is a difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Tribunal shall be expressed in terms of the views of the majority.
(8) Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.
8. (1) The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial.
(2) Any person appointed as a Prosecutor is competent to act as an Investigation Officer and the provisions relating to investigation shall apply to such Prosecutor.
(3) Any Investigation Officer making an investigation under this Act may, by order in writing, require the attendance before himself of any person who appears to be acquainted with the circumstances of the case; and such person shall attend as so required.
19[(3A) An Investigation Officer, if he considers it necessary, may, by order of a Tribunal, search any place and seize any documents or articles under a seizure list prepared in the presence of at least two witnesses.]
(4) Any Investigation Officer making an investigation under this Act may examine orally any person who appears to be acquainted with the facts and circumstances of the case.
(5) Such person shall be bound to answer all questions put to him by an Investigation Officer and shall not be excused from answering any question on the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such person:
Provided that no such answer, which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding.
(6) The Investigation Officer may reduce into writing any statement made to him in the course of examination under this section.
(7) Any person who fails to appear before an Investigation Officer for the purpose of examination or refuses to answer the questions put to him by such Investigation Officer shall be punished with simple imprisonment which may extend to six months, or with fine which may extend to Taka two thousand, or with both.
(8) Any Magistrate of the first class may take cognizance of an offence punishable under sub-section (7) upon a complaint in writing by an Investigation Officer.
(9) Any investigation done into the crimes specified in section 3 shall be deemed to have been done under the provisions of this Act.
9. (1) The proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor, or a Prosecutor authorised by the Chief Prosecutor in this behalf, of formal charges of crimes alleged to have been committed by each of the accused persons.
(2) The Tribunal shall thereafter fix a date for the trial of such accused person.
(3) The Chief Prosecutor shall, at least 20[six weeks] before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.
(4) The submission of a list of witnesses and documents under sub-section (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial:
Provided that notice shall be given to the defence of the additional witnesses intended to be called or additional evidence sought to be tendered by the prosecution.
(5) A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.
21[(6) The defence may, with the permission of the Tribunal, call additional witnesses or present further evidence at any stage of the trial.]
22[9A. (1) A Tribunal may decide to make an audio-visual recording of a hearing or part thereof.
(2) A Tribunal may decide to make available an audio or video broadcast of a hearing, or part thereof, via the internet or other means, in accordance with any conditions set by the Tribunal to protect the safety, privacy and dignity of participants.]
24[10A. (1) Where a proceeding is commenced under sub-section (1) of section 9, the tribunal, before fixing the date for the trial under sub-section (2) of the said section, has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial, may hold the trial in his absence following the procedure as laid down in the Rules of Procedure made under section 22 for such trial.
(2) Where the accused person is tried under sub-section (1), the Tribunal may direct that a Counsel shall be engaged at the expense of the Goverment to defend the accused person and may also determine the fees to be paid to such Counsel.]
25[10B. Notwithstanding any provision contained in any other law for the time being in force, representatives of United Nations bodies and agencies, as well as national or international human rights organizations, may attend public hearings, trials and other proceedings.]
11. (1) A Tribunal shall have power-
(a) to summon witnesses to the trial and to require their attendance and testimony and to put questions to them;
(b) to administer oaths to witnesses;
(c) to require the production of document and other evidentiary material;
(d) to appoint persons for carrying out any task designated by the Tribunal.
(2) For the purpose of enabling any accused person to explain any circumstances appearing in the evidence against him, a Tribunal may, at any stage of the trial without previously warning the accused person, put such questions to him as the Tribunal considers necessary:
Provided that the accused person shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Tribunal may draw such inference from such refusal or answers as it thinks just;
(3) A Tribunal shall-
(a) confine the trial to an expeditious hearing of the issues raised by the charges;
(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements.
(4) A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both.
(5) Any member of a Tribunal shall have power to direct, or issue a warrant for, the arrest of, and to commit to custody, and to authorise the continued detention in custody of, any person charged with any crime specified in section 3.
(6) The Chairman of a Tribunal may make such administrative arrangements as he considers necessary for the performance of the functions of the Tribunal under this Act.
26[(7) A Tribunal may arrange virtual hearings if the Tribunal is satisfied that the physical attendance of the victims and witnesses cannot be procured due to unavoidable circumstances.
(8) Notwithstanding anything contained in the Bangladesh Legal Practitioners and Bar Council Order, 1972 (President’s Order No. 46 of 1972), a Tribunal may allow foreign counsel to appear before it, subject to the prior permission of Bangladesh Bar Council, which should not be unreasonably withheld.]
27[11A.(1) At any stage of a case, a Tribunal may, on its own motion or on the application of the Chief Prosecutor, by an order in writing, transfer the case to another Tribunal, Whenever it considers such transfer to be just, expedient and convenient for the proper dispensation of justice and expeditious disposal of such cases.
(2) Where a case has been transferred under sub-section (1), the Tribunal which thereafter tries such case shall, subject to the provisions of this Act, proceed from the stage at which it was so transferred.]
28[(3) If in any case, the accused is charged with crimes punishable under this Act, but the evidence suggests they have committed a different offence chargeable under the Penal Code, 1860, or any other law for the time being in force, the case may be transferred to a competent court for trial.
(4) For the purpose sub-section (3), the Tribunal shall send to that court a certified copy of the case record and the documents and articles, if any, which are to be produced in evidence and notify the concerned public prosecutor of the transfer of the case.]
29[12. (1) Where an accused person is not represented by counsel, the Tribunal may, at any stage of the case, direct that a counsel shall be engaged at the expense of the Government to defend the accused person and may also determine the fees to be paid to such counsel.
(2) In addition to any other disclosure provided for in this Act, the prosecutor shall, as soon as practicable, disclose to the defence any evidence in the prosecutor’s possession which he believes shows the innocence of the accused, or mitigates the guilt of the accused, or which may affect the credibility of prosecution evidence.
(3) Reports, memoranda or other internal documents prepared by the investigation or the prosecution in connection with the investigation or preparation of the case are not subject to disclosure.
(4) Where material or information is in the possession or control of the prosecutor which must be disclosed in accordance to this rule, but disclosure may prejudice further or ongoing investigations, the prosecutor may apply to the Tribunal for a ruling as to whether the material or information must be disclosed to the defence and the matter shall be heard on an ex parte basis by the Tribunal.
(5) Communications made in the context of the professional relationship between a person and his legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless:
(i) The person consents in writing to such disclosure; or
(ii) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
(6) In case of doubt as to the application of this provision, the Tribunal shall take decision.]
14. (1) 30[Any Judicial Magistrate or Metropolitan Magistrate] may record any statement or confession made to him by an accused person at any time in the course of investigation or at any time before the commencement of the trial.
(2) The Magistrate shall, before recording any such confession, explain to the accused person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the accused making it, he has reason to believe that it was made voluntarily.
31[(3) An accused shall have the right not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence.]
32[17. An accused person shall have the right to—
(a) give any explanation relevant to the charge made against him during trial;
(b) conduct his own defence before the Tribunal or to have the assistance of counsel;
(c) present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.
be tried without undue delay;
(e) have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence;
(f) avail the assistance of an interpreter, free of charge and at the expense of the government, if they do not understand or speak the language used in the proceedings;
(g) have protection under Torture and Custodial Death (Prevention) Act, 2013 (Act No. 50 of 2013);
(h) to be brought before a Tribunal within 24 hours exclusive of the time necessary for the journey from the place of arrest to the Tribunal and shall not be arbitrarily detained.]
19. 33[(1) The parties to a Tribunal may submit any evidence including data or information generated, prepared, sent, received, or stored in magnetic, electromagnetic, optical, or computer memory; audio and video recordings; Digital Versatile Disc (DVD), Digital Video Disc (DVD); records from Closed Circuit Television (CCTV); drone data; records from cell phones; hardware, software, or any other digital device relevant to the case, to the Tribunal.
(1A) A Tribunal shall have the authority to order the submission of all evidence that it considers necessary for the determination of the truth.
(1B) A Tribunal shall rule on the admission or relevance of evidence either on its own motion or on the application of one of the parties, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness.
(1C) An issue relating to relevance or admissibility of evidence must be raised at the time when the evidence is submitted to the Tribunal or, exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known.
(1D) A Tribunal shall give reasons for any rulings it makes on evidentiary matters.
(1E) Evidence ruled irrelevant or inadmissible shall not be considered by the Tribunal.
(1F) Evidence obtained by means of a violation of internationally recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.]
(2) A Tribunal may receive in evidence any statement recorded by a 34[Judicial Magistrate or Metropolitan Magistrate] or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.
(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.
(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.
20. (1) The Judgement of a Tribunal as to the guilt or the innocence of any accused person shall give the reasons on which it is based: Provided that each member of the Tribunal shall be competent to deliver a judgement of his own.
(2) Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.
35[(2A) A copy of judgement under the seal and signature of the Registrar of a Tribunal shall be provided, free of cost, to the prosecution and the accused person on the date of delivery of the judgement.
(2B) Notwithstanding anything contained in any other law, rule or legal instrument for the time being in force, when a copy of Judgement is provided under sub-section (2A), it shall be used as certified copy of the judgement of the Tribunal for the purpose of preferring an appeal under section 21.]
(3) The sentence awarded under this Act shall be carried out in accordance with the orders of the Government.
36[20A. (1)The Tribunal may award any amount it deems appropriate as compensation for the victims of the crimes.
(2) If the compensation cannot be recovered from the convicted individual or their existing assets, such amounts shall be recoverable from any assets that the individual may own or acquire in the future.
(3) In the cases stated above, the claim for compensation shall take precedence over any other claims against the aforementioned assets.]
38[21A. (1) Notwithstanding any other provisions in this Act, a party may file an appeal before the Appellate Division of the Supreme Court of Bangladesh challenging the order ofpunishment for contempt of the Tribunal within 30 (thirty) days of the passing of the said order.
(2) The appeal shall be disposed of within 30 (thirty) days of filing the appeal.
(3) Notwithstanding the filing or pendency of any interlocutory appeal, the Tribunal shall continue with all investigative, trial, and related proceedings without suspension or delay.
(4) The filing of an appeal shall not operate as a stay of proceedings or affect the Tribunal’s jurisdiction to proceed with any matter before it, unless otherwise directed by the Tribunal in the interests of justice.]
39[23A. (1) A Tribunal shall take all necessary measures to ensure the safety, security, and well-being of witnesses who provide testimony or evidence in proceedings under this Act.
(2) A Tribunal may, on its own motion or upon request by the prosecution, defence, or the witness concerned, order any of the protective measures specified in sub-section (1) or any other measures it deems necessary to safeguard the witness.
(3) Any decision on witness protection shall be made with due regard to the rights of the accused and the prosecution to a fair trial, ensuring that such measures do not unduly prejudice either party involved in the trial.
23B. (1) Victims of crimes under this Act, either personally or through duly authorized legal representation, shall have the right to participate in the proceedings of a Tribunal where they or their families hold a position contrary to that of the prosecution and the Tribunal shall record the perspective of the victims for judicial consideration.
(2) A Tribunal may, on its own motion or upon request by the prosecution or the victims concerned, order any of the protective measures it deems necessary to safeguard the victims.]
