Symposium on Prosecuting Heads of State for International Crimes: Prosecuting the Head of Government in Absentia for International Crimes – The Curious Case of Bangladesh’s Sheikh Hasina

[Quazi Omar Foysal is a Bangladeshi-qualified international lawyer, currently pursuing PhD at La Trobe University, Australia]

Following the fall of the authoritarian regime of Sheikh Hasina on 5 August 2024, the interim government had three options to pursue accountability for the atrocious crimes that preceded that development. These included referral to the International Criminal Court (ICC), the establishment of an ad hoc internationalized tribunal, and prosecution through the pre-existing domestic International Crimes Tribunal-Bangladesh (ICT-BD or Tribunal). Though there were initial preferences for the ICC, the interim government ultimately decided to entrust the matter to the ICT-BD. The Tribunal, originally established to prosecute international crimes committed during Bangladesh’s Liberation War, is empowered to prosecute such crimes regardless of the period of their commission, owing to the open-ended temporal jurisdiction of its founding instrument, the International Crimes (Tribunals) Act (ICT Act). However, the interim government introduced several amendments to the ICT Act to address prior criticisms and enhance its compatibility with human rights standards. 

Despite these efforts, certain aspects still raise questions regarding its compliance with due process standards. One such area concerns its provisions on trial in absentia. This issue is particularly significant for the Tribunal as the ICT-BD convicted Sheikh Hasina and others in absentia for crimes against humanity and sentenced her to death on 17 November 2025, following several unsuccessful attempts to secure her extradition from India, where she has taken refuge since the fall of her authoritarian government. Interestingly, the trial did not encounter any issues concerning immunity, as the ICT Act contains an explicit provision waiving immunity attached to any official position. Against this backdrop, this piece argues that the Government of Bangladesh should revisit the legal regime governing trial in absentia to facilitate the future extradition of Sheikh Hasina and her eventual appeal.

Trial in Absentia and the International Crimes Tribunal-Bangladesh

Trial in absentia was not native to the common law-originated legal system of Bangladesh. It was introduced into the corpus juris of Bangladesh through an amendment to the Code of Criminal Procedure in 1982. Although the ICT Act did not contain any provision related to trial in absentia in its original version, such a provision was added in 2012. An amendment was also made to the International Crimes Tribunal Rules of Procedure (ICT RoP) to accommodate this change. Interestingly, Bangladesh made a reservation to Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR) upon accession in 1998, which includes the right to be tried in presence and to defend oneself in person, apparently keeping the right to be present in trial outside the scope of its treaty obligations. However, it remains bound by its obligations under customary international law to ensure the right of the accused to be present at trial.

Section 10A of the ICT Act states that a Tribunal may hold a trial in absentia if it “has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial,” in accordance with the ICT RoP and by engaging a Government-appointed defence counsel. Rule 32 of the ICT RoP, read together with Rule 31, provides that if an accused fails to appear before the Tribunal on a designated date despite publication of a notice for appearance in one English and one Bengali newspaper, and the Tribunal has reason to believe that the accused is absconding or concealing themselves from arrest and production for trial, and there is no immediate prospect of arrest – the Tribunal may proceed with the trial in absentia. As it will be discussed in the next section, there is no special provision for appeal by a person convicted in absentia, nor clarification of the nature of such appeal.

Interestingly, the very first conviction of the ICT-BD, namely in the Azad case, resulted from a trial in absentia. Since then, the ICT-BD has conducted trials in absentia on a regular basis, amounting to roughly one-third of the total convictions. In the Azad case, the Tribunal justified trial in absentia on two principal grounds. First, it noted that the United Nations allowed trial in absentia in the case of the Special Tribunal for Lebanon (STL). Furthermore, it referred to the trial of Bormann in absentia before the Nuremberg Tribunal. Second, it concluded that trial in absentia does not violate the accused’s right to be present where there has been a waiver of that right, relying on the jurisprudence of the Human Rights Committee and the European Court of Human Rights (Azad Trial Judgment, pp. 49-54). The inclusion of provisions related to trial in absentia was criticised by many, including Elizabeth Herath, Sai Ramani Garimella, and Geoffrey Robertson. Conversely, M Rafiqul Islam commented that: “any criticism that [trial in absentia] was a denial of procedural due process does not appear to be legally subsumable” from the view point of human rights jurisprudence and international practice.

International Minimum Standards and the ICT-BD

Trial in absentia is closely linked to the right to be present at trial, guaranteed in Article 14(3) of the ICCPR and in major regional human rights instruments. It has also attained the status of customary international law. Moreover, the instruments of modern international criminal courts and tribunals ensure the right to be present, with the notable exceptions of the STL and the Nuremberg Tribunal. Given that the ICT-BD has justified its reliance on trial in absentia by reference to the STL and human rights jurisprudence, it is pertinent to revisit them in turn.

Article 22 of the Statute of the Special Tribunal for Lebanon (STL Statute) regulates trial in absentia in three stages. First, the STL may proceed in the absence of the accused only where there is an express written waiver, non-surrender by a third State, or abscondence or non-appearance. Second, the Tribunal must ensure proper notification of the charges and legal representation, either by defence counsel of the accused’s own choosing or, failing that, by Tribunal-appointed defence counsel. Third, and most importantly, upon conviction in absentia, the accused is entitled to a retrial in their presence, particularly where they were not represented by defence counsel of their own choosing or they do not accept the judgment. The jurisprudence of human rights bodies requires three core conditions for valid in absentia trials: (i) a genuine waiver of the right to be present, (ii) effective representation by defence counsel, and (iii) the right to retrial in the presence of the accused. These conditions substantially overlap with the STL arrangement. Although concerns remain regarding the compatibility of Article 22 of the STL Statute with human rights law, it may still be regarded as reflecting international minimum standards concerning trial in absentia.

The ICT Act and the ICT RoP fall short of the STL standard in several respects. First, Section 10A of the ICT Act mentions abscondence or concealment as the sole ground for commencing trial in absentia, omitting any reference to an express or genuine waiver. While abscondence following due notice may be interpreted as implied waiver, it does not amount to genuine waiver. Second, Rules 31 and 32 of the ICT RoP limit publication of process to two newspapers, which may be inadequate where the accused is believed to have fled abroad. For example, in the Uddin and Khan case, the Tribunal followed the regular rule of newspaper publication despite knowing the accused’s exact addresses in London and New York (paras. 10-13). In the present case, the Tribunal did not depart from this approach despite being aware of Sheikh Hasina’s residence in New Delhi. In this regard, the ICT RoP should have taken note of the STL Statute by providing for publication in the State of residence of the accused, when known. Third, the ICT Act does not differentiate between defence counsel appointed by the Government and defence counsel chosen by the accused, nor does it clarify the legal consequences of such a distinction. The ICT Act’s elaborate provisions on Government-appointed defence counsel do not remove the relevance of the distinction in relation to retrial or de novo appeal.

Finally, the ICT Act also does not provide any special rule on appeal where a person convicted in absentia subsequently surrenders or is arrested. Section 21 of the ICT Act allows an appeal within thirty days and provides that “no appeal shall lie after the expiry of the aforesaid period.” Generally, a convicted person cannot pursue an appeal without surrendering or being arrested, and the thirty-day period may expire while absconding. In that case, the Supreme Court of Bangladesh may exercise its discretionary power to allow such an appeal beyond the expiry of the limitation period. The Act also does not clarify the nature of the appeal. Both the jurisprudence of human rights bodies and the STL Statute require that trial in absentia procedures allow for a de novo trial or retrial. Given that Bangladeshi law only allows appeal stricto sensu, the Government of Bangladesh should revisit its current approach to ensure compliance with international minimum standards. Coincidentally, the first person convicted in absentia, Abul Kalam Azad, has recently appeared before the Tribunal and sought certified documents with a view to filing an appeal. It is expected that the Azad case may set a precedent for similar situations.

In the case of Sheikh Hasina, while the first three differences between the STL Statute and the ICT Act may arguably be ignored, particularly due to her apparent waiver to participate in the proceedings, the final difference can hardly be overlooked. It forms the core condition for the exception to the right to be present that underpins trial in absentia.  Due to the customary status of the right to a fair trial, Bangladesh cannot hide behind its reservation to Art. 14(3) ICCPR At this juncture, the Azad case provides the Government of Bangladesh with an opportune moment to revisit the appellate regime of the ICT-BD concerning persons convicted in absentia, especially in light of experiences such as the Mueen-Uddin case before the UK Supreme Court (UKSC). Interestingly, the applicant in that case had been convicted in absentia by the ICT-BD, and the UKSC criticised the Tribunal’s human rights standards, including its provisions on trial in absentia.

The Future of the Trial Conviction of Sheikh Hasina

Historically, trials in absentia of Heads of State or Government for international crimes have rarely been enforced. The case of Ieng Sary may be regarded as a partial success story, having been tried in absentia by the People’s Revolutionary Tribunal of Cambodia after the fall of the Khmer Rouge regime, but later facing fresh proceedings before the Extraordinary Chambers in the Courts of Cambodia. However, this was not the case for many others, including Bormann, Mengistu, and Ben Ali. Furthermore, the STL-convict Jamil Ayyash did not get arrested before his death. Sheikh Hasina is likely to join this list unless she is extradited by India pursuant to the Bangladesh–India Extradition Treaty of 2013. 

Though Indian law allows trial in absentia and retains the death penalty, and India has previously extradited individuals facing capital charges, it may still raise concerns regarding trial in absentia to justify continued refusal to extradite Sheikh Hasina. India may argue that the trial in absentia regime of the ICT-BD is not fully compatible with international minimum standards, particularly due to the absence of a retrial option. Indeed, the UN Model Treaty on Extradition (1990) recognizes the opportunity to obtain a retrial in the presence of the accused as a ground for refusal of extradition. Thus, Bangladesh, now headed by a newly elected Government, should consider revisiting its appellate regime governing trial in absentia. In that regard, the Azad case should be taken seriously to set an acceptable precedent ensuring compliance with international minimum standards. At the same pace, it should negotiate with its Indian counterparts to accelerate the extradition process. In that case, the Government of Bangladesh may advance, as this author argued elsewhere, the diplomatic assurance of retrial as a part of the extradition deal.