The Bangladeshi War Crimes Investigation Agency, the official investigatory body of the Bangladeshi International Crimes Tribunal (ICT), submitted a report to the ICT on March 25, 2014, on the alleged crimes of the Jamaat-e-Islami (Jamaat) as a political party during the 1971 Liberation War. If the ICT pursues charges against Jamaat as an organization, the case would be the first since the Nuremburg Trials to try an entire organization for war crimes and crimes against humanity. While the Bangladeshi government expanded the jurisdiction of the ICT in a 2013 amendment to allow for the prosecution of entire organizations, some have claimed that the ICT lacks the authority to impose any type of punishment on organizations.
Jamaat is the largest Islamist party in Bangladesh. During the 1971 War, the party opposed Bangladeshi independence from Pakistan by collaborating with Pakistani military and committing atrocities against Bengali nationalists, intellectuals, and the Hindu minority. The ICT has already tried and convicted nine leaders of Jamaat for leadership roles in the 1971 War, in which up to three million Bengalis were killed and a systematic gender-based violence campaign resulted in the rape of up to 400,000 women and children. Despite its role in the War, Jamaat remained an active political party in Bangladesh. In 2013, however, the Bangladeshi government withdrew registration of Jamaat, prohibiting the party from participating in the highly contested 2013 parliamentary elections. The Bangladeshi Supreme Court justified de-registration for three reasons: Jamaat denies that the Bangladeshi people are the source of law-making; it is a sub-faction of an international organization; and it discriminates along religious and gender lines. Additionally, in the verdict against Ghulam Azam, the ICT said that Jamaat “intentionally functioned as a ‘Criminal Organization’ especially during the War of Liberation of Bangladesh in 1971.”
The Investigation Agency’s report alleges that the Jamaat party aided the Pakistani army and participated in war crimes and crimes against humanity, including genocide and mass rape during the 1971 War. Officially, the Investigation Agency is pushing for seven counts against Jamaat under Section 3(2) of the Act. The Agency expects the Prosecution to charge Jamaat, as an organization, with (i) crimes against humanity, (ii) genocide, (iii) war crimes, (iv) violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949, (v) any other crimes under international law, (vi) attempt, abetment or conspiracy to commit any such crimes, and (vii) complicity in or failure to prevent commission of any such crimes. The Agency hopes that the ICT will completely ban the party and order the confiscation of party property.
In addition to undemocratic concerns, critics of trying the Jamaat argue that there is no statutory justification in the amended International Crimes (Tribunals) Act that would permit the ICT to impose any penalty on the organization. While the original International Crimes (Tribunal) Act of 1973 authorized the Bangladeshi government to establish the ICT, there was no authorization to try an entire organization. However, since the 2013 Amendment inserted the word “organization” into Section 3(1) of the Act, supporters of the report argue that pursuant to Section 3(1), the ICT has jurisdictional reach over organizations and can bring war crimes and crimes against humanity charges enumerated in Sections 3(2)(a) and 3(2)(d). In response, Jamaat supporters argue that even if the 2013 Amendment permits the ICT to try organizations, the ICT cannot punish organizations. Sections 20(1)-20(3) empower the Court to impose the death penalty as a maximum sentence for convicted individuals, but are silent on the ability to impose punishment on organizations. Supporters of the potential trial, in contrast, maintain that Section 20 of the Act permits the ICT to impose any type of punishment at its discretion. Moreover, Section 39 of the Bangladeshi General Clauses Act defines “person” as “any company or association or body of individuals, whether incorporated or not.” Using this definition, supporters of the report have argued that the ICT has the capacity to impose the suggested punishments.
The move to ban Jamaat as a political organization comes in light of substantial international criticism of the ICT. International NGOs and other national governments have welcomed the ICT, but have expressed concerns regarding protections for the defendants and witnesses and fears that the trials were politically motivated. Additionally, Bangladesh has passed constitutional amendments to Articles 47(3) and 47(A) of the Constitution that, respectively, prevent the accused at the ICT from challenging the constitutional validity of any law and strip those accused by the ICT of many specific constitutional protections that are guaranteed to other Bangladeshi citizens. The constitutional amendments, coupled with a variety of troubling aspects of the ICT Rules of Procedure, have led some commentators to claim that fundamental problems with the ICT violate the fair trial protections enshrined in Article 14 of the International Covenant on Civil and Political Rights.