Were Crimes Against Humanity Committed During the July 2024 Crackdown on Student Protests in Bangladesh? A Legal Analysis

2.1 Doctrinal Development

The modern concept of crimes against humanity was first codified in Article 6(c) of the Charter of the International Military Tribunal at Nuremberg, where it addressed widespread and systematic atrocities committed against civilian populations during the Second World War. ⁶ The notion of individual criminal responsibility for such acts was reinforced by prosecutions under Control Council Law No. 10 and before the International Military Tribunal for the Far East, as well as in various national courts. ⁷ These early cases confirmed crimes against humanity as a category of international crime distinct from war crimes and genocide. Over subsequent decades, the definition evolved through customary international law, shaped by the jurisprudence of the ICTY and the ICTR. The ICTY Appeals Chamber in Prosecutor v. Tadić elaborated on the contextual elements of the offence, including the meaning of ‘widespread or systematic’, ⁸ while the ICTR in Prosecutor v. Akayesu clarified the content of persecution and its discriminatory character. Both tribunals confirmed the applicability of crimes against humanity beyond situations of armed conflict. ⁹

The adoption of the Rome Statute in 1998 consolidated these developments in Article 7, providing a comprehensive definition and enumerating specific underlying acts. The ICC Elements of Crimes further refined interpretive guidance on each element. The prohibition of crimes against humanity is now widely recognised as customary international law. ¹⁰ The ongoing work of the International Law Commission on a Draft Convention on Crimes Against Humanity seeks to harmonise national implementation and strengthen prevention, reflecting the consolidation of this body of norms as a core component of international criminal law.

Yet aspects of Article 7 remain contested. Scholars debate the necessity of requiring a ‘State or organizational policy’ as an element, since earlier tribunal jurisprudence did not explicitly impose such a threshold. Cassese has argued that the Rome Statute introduced a novel restriction, while Scholar Schabas notes that it risks narrowing the customary law understanding of crimes against humanity. ¹¹ Others point to continuing fragmentation in state practice, suggesting that the scope of customary international law remains less settled than often assumed. These debates underscore that, while codification has advanced, interpretive uncertainties persist.

2.2 Applicability in Peacetime and the Definition of ‘Civilian’

Article 7(1) of the Rome Statute expressly provides that crimes against humanity may be committed ‘in time of peace or armed conflict’. In a peacetime context, the notion of a ‘civilian population’ encompasses all persons who are not members of armed forces or otherwise directly participating in hostilities. ¹² The ICTY in the Prosecutor v. Kunarac case clarified that this assessment is made in reference to the overall character of the targeted group, not the individual status of each victim. ¹³ Jurisprudence of the ICC, including the Prosecutor v. Katanga case’s judgment, ¹⁴ affirms that isolated acts of resistance or sporadic violence do not deprive individuals of civilian status.

Some commentators nevertheless caution that the Rome Statute’s use of ‘civilian population’ in a peacetime setting should not be equated wholesale with the concept under international humanitarian law. The Human Rights Committee in General Comment No. 36 has emphasised that the right to life under the International Covenant on Civil and Political Rights (ICCPR) applies to all persons not directly engaged in hostilities, suggesting a broader protective scope in non-conflict contexts. This interpretive debate has direct implications for the July 2024 crackdown in Bangladesh, where protesters and bystanders engaged in political dissent remain civilians under international law, regardless of sporadic incidents of resistance.

2.3 Contextual Elements

The contextual elements of crimes against humanity, as set out in Article 7(1) and elaborated in the Elements of Crimes, require that the underlying acts be committed as part of a widespread or systematic attack directed against a civilian population, pursuant to or in furtherance of a state or organisational policy, and with knowledge of the attack. ¹⁵ The following framework sets out the controlling standards with reference to leading jurisprudence and treaty sources. The subsequent application will use cautious terms and recognises that only a court can make findings after evidentiary testing.

The requirement that an attack be ‘widespread or systematic’ establishes a threshold for crimes against humanity. These two criteria are disjunctive: either is sufficient to satisfy the contextual element, though many situations meet both. Widespread refers to the large-scale nature of the attack, assessed primarily in terms of the number of victims, the geographical scope, or both. International tribunals have consistently emphasised that the focus is on the magnitude of the attack rather than its motive. Relevant factors include the number of incidents, the geographical spread of the crimes, their duration, and the range of affected localities. ¹⁶ The term thus captures attacks that, by their scale, transcend isolated or random acts. In the Prosecutor v. Tadić case, the ICTY emphasised that the defining feature lies in the ‘scale or systematic nature’ of the acts and their connection to a broader attack, not in the specific motive of the perpetrator. ¹⁷

Systematic denotes an organised pattern of conduct rather than mere repetition. It implies substantial planning, coordination, and execution in accordance with a common policy or strategy. Indicators include the repetition of similar methods across multiple locations, coordination among different units or actors, allocation of resources to facilitate the attack, and the adoption of administrative or regulatory measures enabling its implementation. The Special Court for Sierra Leone, for instance, characterised systematic attacks as ‘thoroughly organized and following a regular pattern based on a common policy’. ¹⁸ ICTY jurisprudence, including the Kunarac, Kovac and Vukovic judgment, ¹⁹ and ICC decisions such as the Gbagbo and Blé Goudé judgment ²⁰ have affirmed that either ‘widespread’ or ‘systematic’ is sufficient to meet the requirement. Together, these criteria ensure that crimes against humanity target collective, not merely individual, interests, capturing attacks that are either massive in scale, deliberately organised, or both. Within this legal framework, the reported conduct during July 2024 can be assessed against the relevant thresholds.

Article 7(2)(a) of the Rome Statute requires that crimes against humanity be committed ‘pursuant to or in furtherance of a State or organizational policy’. The policy need not be formal or written. It may be inferred from the coordinated nature of the acts, the repetition of methods across locations, the mobilisation of state institutions or organised groups, and enabling measures such as curfews or communication restrictions. ²¹ The ICC has recognised that such a policy can be established through circumstantial evidence and does not require proof of explicit directives. It has further clarified that an ‘organisation’ within the meaning of Article 7 must possess the capacity to carry out a widespread or systematic attack. ²² Viewed in this way, the available accounts suggest recurring forms of coordination that warrant closer examination.

Article 30 of the Rome Statute requires that crimes against humanity be committed with intent and knowledge. In this context, the perpetrator must be aware that their conduct forms part of a broader attack directed against a civilian population. Complete knowledge of every detail of the attack is not necessary; awareness of the essential factual circumstances giving the conduct its collective character is sufficient. ²³ This mental element may be established through circumstantial evidence, such as the scale and organised nature of the operations, the repetition of acts, and the perpetrator’s position or role within the relevant structure.

Article 7(1) of the Rome Statute enumerates the acts that may constitute crimes against humanity when committed within the contextual framework set out above. The ICC Elements of Crimes provide detailed guidance on the constituent elements of each offence. The following subsections summarise the acts most relevant to this assessment, outlining their principal doctrinal thresholds.

1. – Murder (Article 7(1)(a)): Murder under Article 7(1)(a) requires the unlawful causing of death with intent to kill or with knowledge that death was a likely consequence. Where the killing occurs in a law enforcement context, unlawfulness is assessed considering international human rights standards on the use of lethal force, particularly the principles of necessity and proportionality in Article 6 of the ICCPR and the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Lethal force that is not strictly necessary to protect life may satisfy the unlawfulness requirement for murder as a crime against humanity. Against this legal standard, the allegations reported for July 2024 require careful consideration.
2. – Imprisonment or other severe deprivation of physical liberty: Article 7(1)(e) of the Rome Statute criminalises the severe deprivation of physical liberty in violation of fundamental rules of international law. This encompasses detention without a clear legal basis, detention lacking individualised grounds, incommunicado detention, denial of access to counsel, or the absence of prompt judicial review. The assessment of unlawfulness is informed by the guarantees in Article 9 of the ICCPR and the jurisprudence of the United Nations Working Group on Arbitrary Detention. International practice considers both the scale and severity of the deprivation to determine whether it crosses the threshold of a crime against humanity. Isolated or minor violations will generally not suffice; the detention must form part of the broader attack directed against a civilian population. The prohibition reflects the centrality of liberty as a core human right and ensures that arbitrary detention, when pursued as part of a widespread or systematic policy, is captured within the protective scope of crimes against humanity. With this framework in mind, the reported patterns of mass arrests in July 2024 can be assessed more clearly.
3. – Torture: Under Article 7(1)(f) of the Rome Statute, torture consists of the intentional infliction of severe physical or mental pain or suffering upon a person in custody or otherwise under the control of the perpetrator, for purposes such as obtaining information or a confession, punishment, intimidation, coercion, or discrimination. International jurisprudence has recognised patterns of severe beatings, stress positions, sexualised violence, threats of death or harm to family members, and deliberate denial of essential medical care as indicative both of the requisite severity of suffering and of the prohibited purposes. ²⁴ Seen against these requirements, the available accounts raise several issues relevant to the Article 7(1)(f) threshold.
4. – Sexual and gender-based violence: Under Article 7(1)(g) of the Rome Statute, sexual and gender-based violence encompasses ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other acts of comparable gravity’. Rape is defined as the non-consensual penetration, however slight, of any part of the body of the victim or perpetrator with a sexual organ, or of the anal or genital opening with an object or another body part. Sexual violence more broadly includes any act of a sexual nature committed by force, threat of force, coercion, or by taking advantage of a coercive environment, and extends to acts of comparable gravity such as sexual torture and forced nudity. International jurisprudence requires proof of coercion, force, or the existence of a coercive environment rather than evidence of physical resistance by the victim. ²⁵ Applied to the July 2024 events, these elements highlight specific concerns documented in public reporting.
5. – Persecution: Under Article 7(1)(h) of the Rome Statute, persecution consists of the intentional and severe deprivation of fundamental rights contrary to international law, committed by reason of the identity of a group or collectivity, including political groups. The offence requires proof of discriminatory intent and may accompany other underlying acts where the deprivation reaches the requisite level of severity. ²⁶ Placed within this legal framework, the incidents reported in July 2024 warrant further evaluation.
6. – Enforced disappearance: Under Article 7(1)(i) of the Rome Statute, enforced disappearance consists of the arrest, detention, or abduction of a person by, or with the authorisation, support, or acquiescence of, a state or political organisation, followed by a refusal to acknowledge the deprivation of liberty or to disclose the fate or whereabouts of the person. The offence is continuous in nature and persists for as long as the disappearance remains unacknowledged or the fate or whereabouts concealed. ²⁷
7. – Other inhumane acts: Under Article 7(1)(k) of the Rome Statute, other inhumane acts encompass conduct of comparable gravity to the enumerated crimes, intentionally causing great suffering or serious injury to body or to mental or physical health. International jurisprudence has recognised, for example, the deliberate denial of medical care to the wounded, attacks on medical personnel or facilities, obstruction of ambulances, and coercive practices inflicting serious mental suffering on victims or their families, provided the requisite gravity and intent are established. ²⁸

2.4 Exclusion of Genocide and War Crimes

It is important to distinguish crimes against humanity from other categories of international crimes. Genocide, as defined in Article 6 of the Rome Statute, requires the commission of one of the enumerated acts with the specific intent (dolus specialis) to destroy, in whole or in part, a national, ethnical, racial, or religious group as such. ²⁹ The facts under consideration do not disclose the targeting of a protected group, nor the requisite intent to destroy such a group. As affirmed in the Akayesu judgment, ‘genocide is distinct by its special intent, the intent to destroy a group in whole or in part’. ³⁰ This conclusion is reinforced by the 2024 amendment to the International Crimes Tribunals Act, which removed ‘political groups’ from the domestic definition of genocide, further narrowing its applicability. The exclusion of genocide ensures analytical precision by focusing on the contextual and mental elements that characterise the situation, rather than conflating it with the distinct and more stringent requirements of Article 6.

War crimes, as defined in Article 8 of the Rome Statute, presuppose the existence of an armed conflict and a nexus between the alleged conduct and that conflict. ³¹ The events addressed here occurred entirely in peacetime, without any connection to an international or non-international armed conflict. As such, they fall outside the scope of international humanitarian law and must be assessed exclusively within the framework of crimes against humanity. ³² Because of their gravity, crimes against humanity implicate jus cogens ³³ norms, peremptory rules of international law from which no derogation is permitted. ³⁴ They are subject to universal jurisdiction, allowing states to prosecute perpetrators regardless of where the crimes occurred, or the nationality of the parties involved. This doctrine has been invoked in cases involving Rwandan, Syrian, and Guatemalan officials in foreign courts, reinforcing that such crimes concern all humankind.

2.5 Forms of Liability and Immunity

Article 25 of the Rome Statute sets out the modes of individual criminal responsibility, encompassing direct and indirect commission, ordering, soliciting, inducing, aiding, abetting, and participation in a common purpose. These forms of liability ensure accountability not only for those who physically commit crimes but also for those who plan, instigate, or otherwise contribute to their commission. ³⁵ Article 28 establishes command or superior responsibility, attaching liability to military commanders and other superiors who knew, or owing to the circumstances should have known, that subordinates were committing or about to commit crimes and failed to take all necessary and reasonable measures to prevent the acts or to punish the perpetrators. This doctrine, developed in the jurisprudence of the ICTY and ICTR, is critical for addressing crimes committed through hierarchical structures. Article 27 affirms the irrelevance of official capacity before the ICC, explicitly removing immunity for heads of state or government officials. This principle reflects the view that the gravity of crimes under international law outweighs claims of sovereign immunity. In domestic fora, however, questions of immunity may still be governed by national law and customary international rules, which may limit jurisdiction in certain circumstances. Finally, these liability and immunity issues are analytically distinct from complementarity under Article 17 of the Rome Statute, which governs the allocation of jurisdiction between national authorities and the ICC. ³⁶

4.1 Contextual Elements

4.2 Underlying Acts

1. – Murder (Article 7(1)(a)): Publicly available material from the OHCHR, HRSS, Odhikar, Amnesty International’s Crisis Evidence Lab, Reuters, Associated Press, Prothom Alo, and hospital records from Dhaka Medical College Hospital collectively document numerous deaths caused by live ammunition and other lethal force during crowd control and arrest operations. These sources identify victims by name, describe shootings at close range including against individuals who were fleeing or posed no imminent threat, and estimate between 1,400 and 1,500 fatalities nationwide. ⁶¹ In law enforcement, lethal force is lawful only when strictly necessary to protect life. ⁶² Reports indicate that approximately three-quarters of fatalities resulted from gunshot wounds, with more than 60 per cent involving high-velocity projectiles typically associated with military use. ⁶³ Among the dead were at least 133 minors under the age of 18, as documented by Prothom Alo and corroborated by domestic monitoring groups, the OHCHR, and UNICEF, underscoring the indiscriminate character of the repression. ⁶⁴ The assessment of unlawfulness in a peacetime setting draws on Article 6 of the ICCPR and on recognised standards of necessity and proportionality in the protection of life. The convergence of intergovernmental, domestic monitoring, international and national media, and medical accounts indicates a scale and pattern of killing that, if proven, would satisfy the requirement of murder as an underlying act within the meaning of Article 7(1)(a) of the Rome Statute.
2. – Imprisonment or other severe deprivation of liberty (Article 7(1)(e)): Amnesty International, ASK, and the BLAST report large-scale arrests of protesters, student leaders, journalists, medics, and other individuals, including detentions without charge, without prompt access to legal representation, and without judicial review. ⁶⁵ Reuters and the Dhaka Tribune report police raids on dormitories and private homes, accompanied by mass First Information Reports that lacked specific, individualised allegations. ⁶⁶ These accounts describe patterns that correspond to internationally recognised definitions of arbitrary detention under Article 9 of the ICCPR.
3. – Torture (Article 7(1)(f)): The OHCHR, Amnesty International, Odhikar, Guardian, and New Age record testimonies describing severe beatings, forced confessions, and other forms of mistreatment in custody. ⁶⁷ These accounts are corroborated by reports of detainees displaying visible injuries upon release, observed by both domestic and international media. Medical research provides further evidence of serious harm: a peer-reviewed study found that hundreds of protesters suffered permanent eye injuries requiring surgical intervention, many attributed to the use of pellet ammunition during detention and crowd-control operations. ⁶⁸ Psychological consequences are also significant. A hospital-based study documented high rates of depression and post-traumatic stress disorder among survivors of the July 2024 violence, underscoring the lasting mental suffering inflicted. ⁶⁹ Collectively, these materials describe conduct that, if established, would meet the threshold of torture as defined in Article 7(1)(f) of the Rome Statute.
4. – Sexual and gender-based violence (Article 7(1)(g)): The OHCHR, Bangladesh Sangbad Songstha, Odhikar, Daily Star, and medical non-governmental organisations report incidents of sexual violence against women and girls linked to the July 2024 protests or their communities. ⁷⁰ Domestic media recount specific cases consistent with the use of sexual violence to intimidate and punish, and medical organisations confirm treatment of sexual assault survivors during this period. ⁷¹ Taken together, these accounts from intergovernmental bodies, domestic monitoring groups, journalists, and medical practitioners describe conduct that, if established, would fall within the scope of Article 7(1)(g) of the Rome Statute.
5. – Persecution (Article 7(1)(h)): Domestic monitoring and media coverage suggest disproportionate targeting of student activists and persons associated with opposition movements, including leaders and organisers. ⁷² Domestic monitoring groups and media accounts indicate that political identity influenced both arrests and the use of force. If established, such intentional and severe deprivation of fundamental rights on political grounds would constitute persecution within the meaning of Article 7(1)(h) of the Rome Statute.
6. – Enforced disappearance (Article 7(1)(i)): The OHCHR, New Age, and HRSS report instances in which individuals were taken by security forces and their whereabouts remained unknown for extended periods. ⁷³ These accounts also include cases in which bodies were recovered without any official acknowledgment of custody. Such conduct, if established, would meet the constitutive elements of enforced disappearance under Article 7(1)(i) of the Rome Statute and would continue until the fate or whereabouts of the persons concerned are disclosed.
7. – Other inhumane acts (Article 7(1)(k)): Reports describe denial of medical care to the injured, obstruction of ambulances, assaults on journalists, and refusal to return bodies unless families accepted restrictive conditions. ⁷⁴ These accounts describe acts that, if established, caused great suffering and are comparable in gravity to other enumerated acts within the meaning of Article 7(1)(k) of the Rome Statute.

4.3 Mental Element

The mental element requires that the perpetrator knew that his or her conduct was part of a widespread or systematic attack against a civilian population. Such knowledge may be inferred from the scale and organisation of operations, the repetition of methods, and the roles and positions of those involved. The OHCHR notes coordinated actions across multiple units and localities, and media reporting places senior officers at several protest sites. These factors, if established, support an inference that participants were aware that their conduct formed part of a broader attack. ⁷⁵ This analysis does not make definitive findings on whether crimes against humanity were committed. That determination rests with a competent court after adversarial testing of evidence. The purpose here is to assess whether publicly reported facts, if proven, appear to meet the legal elements of such crimes.

5.1 Domestic Proceedings Before the ICT-BD

National authorities bear the primary responsibility to investigate and prosecute international crimes. Proceedings before the ICT-BD may provide the immediate forum for allegations falling within the ICT Act, 1973. Ordinary criminal laws, including the Penal Code and the CRPC, can address individual offences such as murder or unlawful confinement, although they do not codify the contextual elements of crimes against humanity. Past proceedings, particularly The Chief Prosecutor v. Delowar Hossain Sayeedi case, ⁷⁶ were marked by significant controversy. United Nations mandate holders and international human rights organisations raised concerns about judicial independence, disclosure practices, and defence rights, and received allegations of witness interference, including intimidation, abduction, and presentation of false testimony. ⁷⁷ These experiences underline a central obstacle: the credibility of the tribunal will depend on demonstrable independence and impartiality, equality of arms, full disclosure (including exculpatory material), rigorous testing of evidence, and effective protection of victims and witnesses. ⁷⁸

The tribunal’s practice on trial in absentia requires especially strict safeguards. International standards emphasise sustained efforts to secure the presence of the accused, continuous notification, effective representation by counsel, and a meaningful right to retrial upon appearance. Without these safeguards, there is a risk that judgments may be perceived as lacking legitimacy. ⁷⁹ The availability of the death penalty in the tribunal’s sentencing framework may also present an obstacle, not only for public confidence but for international cooperation, as many foreign jurisdictions condition extradition or evidence-sharing on assurances that capital punishment will not be imposed.

5.2 Evidentiary Handling and Preservation

Early preservation of material is central to any genuine proceeding. Priority should be given to the collection and secure storage of digital media, telecommunications records, medical and forensic documentation, and operational logs, with a clear chain of custody and audit trails for transfer and analysis. Where reports by international or domestic organisations are considered, the tribunal may seek the underlying data, authentication notes, and contact information for witnesses, subject to appropriate protection measures. A transparent approach to disclosure, including timely access for the defence to exculpatory material and to metadata linked to digital exhibits, supports equality of arms and strengthens the probative value of the record.

However, several obstacles remain. In past ICT-BD proceedings, concerns were raised that disclosure was delayed or incomplete, limiting the ability of the defence to prepare adequately. ⁸⁰ There is also a risk of intentional destruction of records or non-cooperation by officials still in their position, which could undermine the integrity of the evidence base. Best practice in international tribunals emphasises secure digital archiving, independent oversight of evidence management, and consistent application of disclosure obligations. ⁸¹ Addressing these obstacles proactively is essential to ensure that the factual record can withstand adversarial testing and international scrutiny.

5.3 Fair Trial Guarantees and Trial in Absentia

Core guarantees include the right to counsel of choice, adequate time and facilities to prepare a defence, the right to examine witnesses, reasoned decisions, and public pronouncement of judgment. Trial in absentia is permitted under the ICT Act, 1973, in specified circumstances. International practice emphasises strict safeguards, including demonstrable efforts to secure appearance, continuous notification, representation by qualified counsel with effective powers to act, and a meaningful right to a retrial upon appearance. Application of these safeguards will be relevant to assessments of fairness by domestic and international observers.

Nonetheless, trial in absentia presents obstacles that go beyond procedure. Past ICT-BD judgments were criticised by the International Commission of Jurists and UN mandate holders for inadequate notification and weak opportunities for retrial. ⁸² If similar concerns arise, proceedings may be viewed as inconsistent with international fair trial standards, even where formally compliant with domestic law. Comparative jurisprudence, including the European Court of Human Rights in Colozza v. Italy (1985), ⁸³ stresses that the right to be present at trial is fundamental and that any derogation must be narrowly construed. Failure to apply these safeguards strictly could affect not only the legitimacy of verdicts but also Bangladesh’s ability to demonstrate that its proceedings are ‘genuine’ under Article 17 of the Rome Statute.

5.4 Death Penalty and Implications for Cooperation

Retention of capital punishment in sentencing may affect the willingness of foreign authorities to provide judicial cooperation or to facilitate transfers of suspects. In extradition and mutual legal assistance, many states, including those in the European Union and the United Kingdom, generally require assurances that the death penalty will not be imposed or carried out. This is consistent with international human rights law: the European Court of Human Rights in Soering v. United Kingdom (1989) held that extradition to face a real risk of capital punishment could violate Article 3 of the European Convention on Human Rights. ⁸⁴ Similarly, the UN Human Rights Committee has stressed that transfers engaging a risk of execution may breach Articles 6 and 7 of the ICCPR. ⁸⁵ The obstacle for Bangladesh is therefore not only reputational but practical: without credible assurances, international partners may refuse cooperation, block extradition requests, or decline to share evidence. This could hamper ICT-BD proceedings and affect complementarity assessments under Article 17 of the Rome Statute, since lack of cooperation may undermine the ability of national authorities to conduct genuine prosecutions. While the existence of the death penalty does not itself resolve the legal questions at issue, the authorities may consider formal assurances, prosecutorial discretion, or legislative amendments to address these practical obstacles in mutual legal assistance or extradition.

5.5 Complementarity Under Article 17 of the Rome Statute

Bangladesh is a state party to the Rome Statute. The Court is complementary to national jurisdictions. Admissibility requires identity of the same person and the same conduct and turns on whether national proceedings are genuine. ⁸⁶ Indicators of genuineness include independence and impartiality, concrete investigative steps, timely action, good faith application of the law, and proceedings capable of leading to a decision on the merits. Indicators of unwillingness include proceedings designed to shield specific persons, unjustified delay, or a lack of independence and impartiality. Indicators of inability include substantial collapse or unavailability of the national system or obstacles that prevent the authorities from obtaining the accused or the necessary evidence.

In the Bangladeshi context, potential obstacles include the political sensitivity of prosecuting security officials, continuity of personnel from the former regime, and risks of intimidation of witnesses or destruction of records. Such factors could be viewed internationally as signs of unwillingness or inability, even if proceedings are formally initiated. International jurisprudence, including the ICC’s admissibility decisions in the Prosecutor v. Katanga case and the Prosecutor v. Ruto, Kosgey and Sang case, ⁸⁷ emphasises that complementarity is assessed in substance, not form; it is the reality of national proceedings that determines admissibility. Practices such as trial in absentia and the availability of the death penalty are not dispositive as such but may inform the overall assessment of genuineness when considered alongside due process guarantees and institutional safeguards. Ultimately, the Bangladesh proceedings will serve as a test case: if they are perceived as lacking independence or fairness, the ICC may assert jurisdiction under Article 17.

5.6 International Criminal Court

The Rome Statute gives the Court territorial jurisdiction over crimes committed on the territory of Bangladesh after entry into force for Bangladesh. A situation may reach the Court by referral by Bangladesh, referral by another state party, or proprio motu action by the Prosecutor with judicial authorisation. If national proceedings addressing the same person and the same conduct are genuine, the case will be inadmissible before the Court. Practical obstacles, however, are significant. ICC investigations depend on cooperation for access to sites, records, and witnesses, and on the execution of arrest warrants. In Bangladesh, the political sensitivity of prosecuting senior security or political figures may generate resistance to cooperation, particularly if suspects remain influential or retain support within state institutions. Similar obstacles have arisen in other ICC situations, where governments formally accepted jurisdiction but obstructed access in practice. The safety of victims and witnesses engaging with the Court is another obstacle, given Bangladesh’s past record of witness intimidation in ICT-BD proceedings. ⁸⁸ Feasibility therefore depends not only on the legal basis for jurisdiction but also on genuine state cooperation, effective protection measures, and sustained international pressure to enforce arrest warrants. ⁸⁹ Absent these conditions, ICC involvement risks remaining largely symbolic, reinforcing the importance of credible domestic proceedings.

5.7 Other Fora and International Cooperation

Some states recognise universal jurisdiction over crimes against humanity. In practice, many systems require the presence of the suspect on the forum state’s territory, and domestic immunity rules may limit case selection. Foreign proceedings often face hurdles in evidence collection, witness security, and diplomatic cooperation. Mutual legal assistance frameworks, including the Mutual Legal Assistance in Criminal Matters Act 2012, can facilitate targeted cooperation for evidence gathering, asset restraint, or witness protection. ⁹⁰

Nevertheless, several obstacles persist. Universal jurisdiction cases remain relatively rare, and prosecutorial discretion is often influenced by political considerations. Comparative practice demonstrates this limitation. For instance, German and French courts have exercised universal jurisdiction in relation to atrocities committed in Syria, yet these proceedings required many years of sustained advocacy by non-governmental organisations and depended on the fortuitous presence of suspects in Europe. ⁹¹ In the Bangladeshi context, similar conditions may not be easily replicated. Immunity doctrines in certain states may also shield former heads of government or serving officials from prosecution in domestic courts, notwithstanding Article 27 of the Rome Statute, which establishes the irrelevance of official capacity before the ICC. Evidence collection is another serious challenge. Foreign courts generally require direct, verifiable material, and such documentation may be difficult to secure without cooperation from Bangladeshi authorities. Differences in sentencing frameworks also create obstacles. Many European states condition judicial cooperation on assurances that capital punishment will not be imposed or carried out, which may limit assistance to Bangladesh given the continued availability of the death penalty under the ICT Act, 1973. Clear requests, credible witness protection, and assurances on sentencing are therefore essential if international fora are to complement domestic accountability.

5.8 Individual Responsibility

Allocation of responsibility is ultimately a judicial determination. Modes of liability recognised in international criminal law include direct and indirect commission, ordering, soliciting or inducing, aiding and abetting, and participation in a common purpose under Article 25 of the Rome Statute. ⁹² Command responsibility under Article 28 extends liability to superiors who knew, or should have known, that subordinates were committing crimes and failed to take necessary and reasonable measures to prevent or punish them. ⁹³ Obstacles to accountability frequently arise in applying these doctrines. Establishing the knowledge and effective control required for command responsibility is evidentially complex, especially in contexts where orders are informal or where documentation has been destroyed.

Similarly, while Article 27 of the Rome Statute affirms the irrelevance of official capacity before the ICC, questions of immunity continue to restrict prosecutions in some domestic fora, particularly under customary international law for sitting heads of state. The jurisprudence of the International Court of Justice in the Arrest Warrant case underscores this tension. ⁹⁴ Official capacity therefore does not bar responsibility before competent international courts, but in domestic jurisdictions, immunities and evidentiary challenges may obstruct proceedings. ⁹⁵ Addressing these obstacles is central to ensuring that responsibility can be meaningfully allocated to both direct perpetrators and those with superior authority. ⁹⁶

5.9 Accountability Lessons from Other Cases

Examples from other contexts highlight recurring obstacles to accountability for large-scale violations in peacetime. In Mexico’s Tlatelolco massacre (1968), decades of denial and political resistance meant that investigations came too late to secure meaningful justice. ⁹⁷ In China’s Tiananmen Square crackdown (1989), strict state control of institutions and public narratives blocked any independent inquiry, leaving international advocacy and historical memory as the only forms of recognition. ⁹⁸ In Mexico’s Ayotzinapa disappearances (2014), even with international oversight, weak domestic institutions and mishandled evidence stalled prosecutions. ⁹⁹

Across these examples, three themes stand out. First, early suppression or manipulation of information can entrench impunity. Second, independent investigative and judicial bodies are essential for credible accountability. Third, external mechanisms and sustained advocacy can help to address domestic barriers. These lessons suggest that timely, transparent, and independent processes, supported, when necessary, by outside expertise, are vital for preserving evidence, protecting witnesses, and maintaining public trust in accountability efforts. Bangladesh’s current proceedings before the ICT-BD must therefore prioritise transparency, procedural fairness, and independence to avoid repeating these failures.