The International Crimes Tribunal’s questionable detention policy

In August 2025, I wrote in Prothom Alo about the arrest, 10 months earlier in October 2024, of Dr Tawfiq-e-Elahi Chowdhury—former power, energy, and mineral resources adviser to ousted Prime Minister Sheikh Hasina—by the International Crimes Tribunal (ICT) on allegations of crimes against humanity. In that article, I argued that there was no evidential basis to justify his detention by the ICT either at the outset or 10 months on. Now, six months later, Chowdhury has been detained for a full 15 months without charge.

At this point, his detention is not merely arbitrary; it is very possibly unlawful under the Tribunal’s own procedural rules. Rule 9(5) of the ICT Rules of Procedure provides that:

“If an accused is in custody during [the] investigation period, the investigation officer shall conclude the investigation within one year of his arrest under the Rules. In case of failure to complete the investigation as specified above, the accused may be released on bail subject to fulfilment of some conditions as imposed by Tribunal. But, in exceptional circumstances, the Tribunal, by showing reasons to be recorded in writing, may extend the period of investigation and also the order detaining the accused in custody for a further period of six months.”

The structure of the rule is clear. First, investigations must be completed within one year of arrest. Second, if that period expires without completion, the accused may be released on bail subject to conditions. Third, and crucially, continued detention beyond one year is permissible only in “exceptional circumstances,” which must be justified in writing.

It might be argued that the word “may” (in the second sentence of the rule) gives the Tribunal discretion to refuse bail. However, that discretion is plainly constrained by the third sentence: detention can continue beyond one year only where exceptional circumstances exist and are properly recorded. Why, then, does Chowdhury remain in ICT custody? What exceptional circumstances justify the continued detention of an 81-year-old man who has not been formally charged? None have been publicly identified.

After the expiry of one year in detention, Chowdhury’s family did not apply for bail, perhaps owing to inadequate legal advice. Yet, arguably, the Tribunal itself bears responsibility. Once the one-year threshold was crossed, and absent exceptional circumstances, the Tribunal should have acted proactively to ensure compliance with its own rules and ordered his release.

This issue is not confined to just Tawfiq-e-Elahi Chowdhury, however. There are at least seven other accused who have also been detained without charge by the ICT for more than a year, including former ministers or members of parliament. They include Dipu Moni, Faruk Khan, Kamal Ahmed Majumdar, Shahjahan Khan, Golam Dastagir Gazi, Fazle Karim Chowdhury, and former judge Shamsuddin Chowdhury Manik. If they too have been held beyond the one-year investigative limit without a properly reasoned finding of exceptional circumstances, their continued detention would likewise appear to contravene the Tribunal’s own legal framework.

It is important to note here that even if the ICT were to grant bail to these individuals, they would be released from custody only if they were not simultaneously being detained in connection with separate offences under the Penal Code—a circumstance in which most, if not all, of them currently find themselves.

In its judgments, the Tribunal claims that it is meeting international standards. It is true that since July 2024, significant amendments were made to the International Crimes (Tribunals) Act, 1973 to ensure that the definition of offences reflects international law. However, the provisions relating to detention were not changed and, at least in relation to issues of pre-charge detention—both in law and in practice—the Tribunal falls short of those standards.

Lord Carlile KC, a respected senior lawyer in the UK who previously acted for Khaleda Zia, the former leader of the Bangladesh Nationalist Party (BNP), and who is now assisting the family of former Awami League MP Fazle Karim Chowdhury (one of those detained by the ICT without charge for over a year), certainly thinks so. “The procedure that has been used against him has no legal credibility whatsoever,” he told me. “If [the ICT prosecutors] have got evidence against him, they should serve it on him, but they haven’t… There was no statement of evidence, no photographs, no documents showing he supported the things he is accused of.”

“You can’t detain someone for a year and pretend that you have the evidence against them until you serve it.”

He went on to say, “The Bangladesh legal system and the current government need to get their house in order, as otherwise they are going to be a total outlier in the Commonwealth. This is not what we would expect of the interim administration headed by Muhammad Yunus. I would have expected much better.”

There will no doubt be objections from certain populist groups to the application of due process and the rule of law, particularly if that results in bail being granted to individuals whom they describe as “fascists” or “fascist enablers,” labels now frequently applied to anyone associated with Awami League. Over the past 18 months, in discussions about accountability for the July 2024 events, the emphasis within some of these circles has been overwhelmingly on retribution and punishment, with insufficient regard for the requirements of a fair and impartial trial process.

The Tribunal—and the new government—must, however, resist any populist pressure and ensure that due process is applied faithfully, even in politically sensitive cases. This means that the ICT applies Rule 9(5) of the Rules of Procedure and grants bail to those who have been detained pre-charge for over a year. Justice is not served by abandoning procedure and due process; it is secured only by upholding them.

As Tarique Rahman, the new prime minister, said at his first press conference following his party’s election victory, reconciliation within Bangladesh can only happen through the “rule of law.” Indeed, this is precisely what his mother’s former UK lawyer is now also calling for.

(The ICT prosecution office did not respond to requests for comment.)

David Bergman is a journalist who has written about Bangladesh for many years. His X handle is @TheDavidBergman

Views expressed in this article are the author's own. 

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