New Delhi: A court which had its remit changed through an ordinance last year, questions over judicial appointments to the International Crimes Tribunal-Bangladesh (ICT-B), a defence lawyer that did not try to speak to his client, and potential conflict of interests have all muddied the extradition of former prime minister Sheikh Hasina from India.
Hasina was sentenced to death by the ICT-B Monday for “crimes against humanity” during her regime’s attempt last year to suppress student demonstrations between the months of June and August. The former PM of Bangladesh fled Dhaka for New Delhi on 5 August, 2024, and has since remained in India. Asaduzzaman Khan Kamal, home minister of Bangladesh in Hasina’s regime, was also sentenced to death by the ICT-B.
The Bangladesh interim government led by chief adviser Muhammad Yunus has sought Hasina’s extradition from India under an existing treaty between New Delhi and Dhaka, however, a number of questions arise with the prosecution, a person familiar with the matter told ThePrint.
“The International Crimes Tribunal-Bangladesh was instituted based on the International Crimes (Tribunals) Act of 1973. The 1973 Act and amendments to it in 2008 were specifically intended to address crimes of genocide committed during the Bangladesh Liberation War of 1971,” the person said.
“Amendments to the scope of ICT-B 1973 made after 5 August, 2024, were done through an ordinance. This is invalid ab-initio as the duly appointed executive was not operative and the Parliament had not approved it. The Bangladesh President is not empowered to issue the ordinance (Article 93 of the Bangladesh Constitution) as the dissolution of the Parliament was not according to procedure.”
The current judges in the ICT-B are considered to have been appointed in violation of the constitution of Bangladesh. The chairman of ICT-B, Golam Mortuza Majumder, a retired judge, was appointed as a high court judge only six days before the tribunal announced that it would examine the cases against Hasina.
The second appointee, Mohitul Haque Md Enam Chowdhury, is a retired district and sessions judge and the third one is lawyer Shafiul Alam Mahmud. Like Majumder, Mahmud was appointed high court judge just days before the ICT-B announced it would examine the cases against Hasina.
“They were made permanent judges in violation of Article 98 of the Bangladesh Constitution. This Article requires a two-year period of satisfactory performance as additional judges before elevation as permanent judge. Overall, 22 judges favoured by the Jamaat (Jamaat-e-Islami, largest Islamist party in Bangladesh) were made permanent within a year of service,” said the person.
Lawyer Mahmud is believed to have links with the Bangladesh Nationalist Party (BNP) and is reported to have been an active member of the Bangladesh Nationalist Lawyers Forum. The appointment of a judge to the ICT-B, with links to a political party, raises questions of potential bias.
Hours after the verdict, the Bangladesh Ministry of Foreign Affairs in a strong statement appealed for Hasina’s extradition. Dhaka called any country providing shelter to Hasina as an “intolerant act and a disregard for justice”.
India’s first formal statement after Hasina’s sentence was non-committal. New Delhi “noted the verdict”, while stating its intention to work with “all stakeholders” within Bangladesh.
An extradition treaty does exist between India and Bangladesh but has in Article 6 an exception for any offence that is considered to have a “political character”.
“Extradition may be refused if the offence of which it is requested is an offence of a political character,” Article 6(1) of the treaty states.
National Security Adviser of Bangladesh Khalilur Rahman arrived in India late Tuesday, a day earlier than expected, according to reports in the Bangladesh media. Rahman is set to attend the Colombo Security Conclave.
Rahman’s visit following the verdict against Hasina is significant. Ties remain tense between India and Bangladesh. Prime Minister Narendra Modi has met Yunus once, on the margins of the BIMSTEC Summit in Thailand earlier this year. However, Hasina’s continued stay in New Delhi has emerged as an irritant in the relationship between the two nations.
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Questions over prosecutorial neutrality
A number of questions over the neutrality of prosecutors have also arisen from the process followed to sentence both Hasina and Kamal.
Md Tajul Islam, chief prosecutor of the ICT-B, was the chief defence lawyer for the individuals convicted for war crimes in earlier trials by the tribunal. A number of leaders of the Jamaat-e-Islami were convicted by the ICT-B for crimes committed during the 1971 Liberation War.
Toby Cadman, a British barrister, was appointed as special adviser to the chief prosecutor of ICT-B. Cadman had appeared as a lawyer for individuals from the Jamaat facing trials in the ICT-B.
Hasina has maintained that she was denied the opportunity to have lawyers of her choice to defend her in the case. The state appointed defence lawyer Md Amir Hossain to represent Hasina and Kamal.
Hossain was reported as saying that he had not attempted to contact either of his clients and that “there is no provision allowing such an attempt”. A senior Supreme Court lawyer in Bangladesh, Z.I. Khan Panna, had attempted to represent Hasina at the ICT-B, but his application was denied.
“The state lawyer for the two accused only received all evidence relied on by the prosecution on 25 June, 2025, approximately five weeks before the first day of trial. Considering the quantum of evidence, it is surprising that the lawyer did not seek additional time for preparation for the trial that started on 3 August,” said the person familiar with the matter.
Hossain has also said that he cannot file an appeal to the judgement, as both Hasina and Kamal are “absconding”. Only after the two are “arrested or surrender before the tribunal can an appeal be filed”, he was quoted as saying in the media.
After Hasina’s ouster, a number of cases have been filed against former ministers from her Awami League party, Members of Parliament and workers. Hasina has had over 200 cases filed against her, including 136 for murder, seven for crimes against humanity and three for abduction.
Around 1,170 cases have been filed against 400 former ministers and other Awami League officials, often including hundreds of unnamed individuals and often involving the same people being charged in multiples cases at multiple locations on the same day.
(Edited by Nida Fatima Siddiqui)
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