THE INTERNATIONAL CRIMES (TRIBUNALS) ACT, 1973
(ACT NO. XIX OF 1973).
[20th July , 1973]
An Act to provide for the detention, prosecution and punishment of persons for
genocide, crimes against humanity, war crimes and other crimes under
international law.
WHEREAS it is expedient to provide for the detention, prosecution and punishment of
persons for genocide, crimes against humanity, war crimes and other crimes under
international law, and for matters connected therewith;
It is hereby enacted as follows:-
Short title, extent
and
commencement
1. (1) This Act may be called the International Crimes (Tribunals)
Act, 1973.
(2) It extends to the whole of Bangladesh.
(3) It shall come into force at once.
Definitions 2. In this Act, unless there is anything repugnant in the subject or
context,-
(a) “auxiliary forces†includes forces placed under the control of the
Armed Forces for operational, administrative, static and other
purposes;
(b) “Government†means the Government of the People's Republic of
Bangladesh;
(c) “Republic†means the People's Republic of Bangladesh;
(d) “service law†means the Army Act, 1952 (XXXIX of 1952), the
International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973).
Air Force Act, 1953 (VI of 1953), or the Navy Ordinance, 1961
(XXXV of 1961), and includes the rules and regulations made under
any of them;
(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.
Jurisdiction of
Tribunal and
crimes
3. (1) A Tribunal shall have the power to try and punish any person
irrespective of his nationality who, being a member of any armed,
defence or auxiliary forces commits or has committed, in the
territory of Bangladesh, whether before or after the commencement
of this Act, any of the following crimes.
(2) The following acts or any of them are crimes within the
jurisdiction of a Tribunal for which there shall be individual
responsibility, namely:-
(a) Crimes against Humanity: namely, murder, extermination,
enslavement, deportation, imprisonment, abduction, confinement,
torture, rape or other inhumane acts committed against any civilian
population or persecutions on political, racial, ethnic or religious
grounds, whether or not in violation of the domestic law of the
country where perpetrated;
(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, religious or political group, such as:
(i) killing members of the group;
(ii) causing serious bodily or mental harm to members of the group;
International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973).
(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 or conspiracy to commit any such crimes;
(h) complicity in or failure to prevent commission of any such
crimes.
Liability for
Crimes
4. (1) When any crime as specified in section 3 is committed by
several persons, each of such person is liable for that crime in the
same manner as if it were done by him alone.
(2) Any commander or superior officer who orders, permits,
acquiesces or participates in the commission of any of the crimes
specified in section 3 or is connected with any plans and 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, is guilty of such crimes.
Official position, 5. (1) The official position, at any time, of an accused shall not be
etc not to free an
accused from
responsibility for
any crime
considered freeing him from responsibility or mitigating punishment.
(2) The fact that the accused acted pursuant to his domestic law or
to order of his Government or of a superior shall not free him from
responsibility, but may be considered in mitigation of punishment if
the Tribunal deems that justice so requires.
Tribunal 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.
(2) Any person who is or is qualified to be a Judge of the Supreme
Court of Bangladesh or has been a Judge of any High Court or
Supreme Court which at any time was in existence in the territory
of Bangladesh or who is qualified to be a member of General Court
Martial under any service law of Bangladesh may be appointed as a
Chairman or member of a Tribunal.
(3) The permanent seat of a Tribunal shall be in Dacca:
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 before the 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.
(
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.
Prosecutors 7. (1) The Government may appoint one or more persons to
conduct the prosecution before a Tribunal on such terms and
conditions as may be determined by the Government; and every
such person shall be deemed to be a Prosecutor for the purposes of
this Act.
(2) The Government may designate one of such persons as the
Chief Prosecutor.
Investigation 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.
(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.
(
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.
Commencement
of the
Proceedings
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 three 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 subsection
(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.
Procedure of trial 10. (1) The following procedure shall be followed at a trial before a
Tribunal, namely:-
(a) the charge shall be read out;
(b) the Tribunal shall ask each accused person whether he pleads
guilty or not-guilty;
(c) if the accused person pleads guilty, the Tribunal shall record the
plea, and may, in its discretion, convict him thereon;
(d) the prosecution shall make an opening statement;
(e) the witnesses for the prosecution shall be examined, the defence
may cross-examine such witnesses and the prosecution may reexamine
them;
(f) the witnesses for the defence, if any, shall be examined, the
prosecution may cross-examine such witnesses and the defence may
re-examine them;
(g) the Tribunal may, in its discretion, permit the party which calls
a witness to put any question to him which might be put in crossexamination
by the adverse party;
(h) the Tribunal may, in order to discover or obtain proof of
relevant facts, ask any witness any question it pleases, in any form
and at any time about any fact; and may order production of any
document or thing or summon any witness, and neither the
prosecution nor the defence shall be entitled either to make any
objection to any such question or order or, without the leave of the
Tribunal, to cross-examine any witness upon any answer given in
reply to any such question;
(i) the prosecution shall first sum up its case, and thereafter the
defence shall sum up its case:
Provided that if any witness is examined by the defence, the
prosecution shall have the right to sum up its case after the
defence has done so;
(j) the Tribunal shall deliver its judgement and pronounce its
verdict.
(2) All proceedings before the Tribunal shall be in English.
(3) Any accused person or witness who is unable to express himself
in, or does not understand, English may be provided the assistance
of an interpreter.
(4) The proceedings of the Tribunal shall be in public:
Provided that the Tribunal may, if it thinks fit, take proceedings in
camera.
(5) No oath shall be administered to any accused person.
Powers of
Tribunal
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.
Provision for
defence counsel
12. 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.
Restriction of
adjournment
13. No trial before a Tribunal shall be adjourned for any purpose
unless the Tribunal is of the opinion that the adjournment is in the
interest of justice.
Statement or
confession of
accused persons
14. (1) Any Magistrate of the first class 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.
Pardon of an
approver
15. (1) At any stage of the trial, a Tribunal may with a view to
obtaining the evidence of any person supposed to have been directly
or indirectly concerned in, or privy to, any of the crimes specified in
section 3, tender a pardon to such person on condition of his
making a full and true disclosure of the whole of the circumstances
within his knowledge relative to the crime and to every other person
concerned, whether as principal or abettor, in the commission
thereof.
(2) Every person accepting the tender under this section shall be
examined as a witness in the trial.
(3) Such person shall be detained in custody until the termination of
the trial.
Charge, etc 16. (1) Every charge against an accused person shall state-
(a) the name and particulars of the accused person;
(b) the crime of which the accused person is charged;
(c) such particulars of the alleged crime as are reasonably sufficient
to give the accused person notice of the matter with which he is
charged.
(2) A copy of the formal charge and a copy of each of the
documents lodged with the formal charge shall be furnished to the
accused person at a reasonable time before the trial; and in case of
any difficulty in furnishing copies of the documents, reasonable
opportunity for inspection shall be given to the accused person in
such manner as the Tribunal may decide.
Right of accused
person during
trial
17. (1) During trial of an accused person he shall have the right to
give any explanation relevant to the charge made against him.
(2) An accused person shall have the right to conduct his own
defence before the Tribunal or to have the assistance of counsel.
(3) An accused person shall have the right to present evidence at
the trial in support of his defence, and to cross-examine any witness
called by the prosecution.
No excuse from
answering any
question
18. A witness shall not be excused from answering any question put
to him on the ground that the answer to such question will
criminate or may tend directly or indirectly to criminate such
witness, or that it will expose or tend directly or indirectly to expose
such witness to a penalty or forfeiture of any kind:
Provided that no such answer which a witness shall be compelled to
give shall subject him to any arrest or prosecution or be proved
against him in any criminal proceeding, except a prosecution for
giving false evidence.
Rules of evidence 19. (1) A Tribunal shall not be bound by technical rules of evidence;
and it shall adopt and apply to the greatest possible extent
expeditious and non-technical procedure, and may admit any
evidence, including reports and photographs published in
newspapers, periodicals and magazines, films and tape-recordings
and other materials as may be tendered before it, which it deems to
have probative value.
International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973).
(2) A Tribunal may receive in evidence any statement recorded by a
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.
Judgement and
sentence
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.
(3) The sentence awarded under this Act shall be carried out in
accordance with the orders of the Government.
Right of appeal 21. A person convicted of any crime specified in section 3 and
sentenced by a Tribunal shall have the right of appeal to the
Appellate Division of the Supreme Court of Bangladesh against such
conviction and sentence:
Provided that such appeal may be preferred within sixty days of the
date of order of conviction and sentence.
Rules of
procedure
22. Subject to the provision of this Act, a Tribunal may regulate its
own procedure.
Certain laws not
to apply
23. The provisions of the Criminal Procedure Code, 1898 (V of
1898), and the Evidence Act, 1872 (I of 1872), shall not apply in
any proceedings under this Act.
Bar of Jurisdiction 24. No order, judgement or sentence of a Tribunal shall be called in
question in any manner whatsoever in or before any Court or other
authority in any legal proceedings whatsoever except in the manner
provided in section 21.
Indemnity 25. No suit, prosecution or other legal proceeding shall lie against
the Government or any person for anything, in good faith, done or
purporting to have been done under this Act.
Provisions of the
Act over-riding all
other laws
26. The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the
time being in force.
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