Foreign Counsel at ICT: A Test of Credibility, a Chance to Set a New Precedent

When a state puts its own citizens on trial for the gravest crimes known to law, the legitimacy of the verdict rests not on the severity of the sentence but on the fairness of the path to it. Bangladesh’s International Crimes Tribunal, now trying leaders of the fallen Awami League government, former officials and journalists, must still answer questions about that fairness. Allowing foreign counsel to represent the accused would be a modest but credible step towards establishing it.

A Tribunal Born of Accountability, Burdened by Controversy
The International Crimes (Tribunals) Act, 1973, was designed to punish collaborators accused of genocide and crimes against humanity during the Liberation War, drawing heavily on the Nuremberg Charter. Revived by the Hasina government in 2010, it led to six executions amid international criticism over weak evidence, political bias, ties between judges and prosecutors, and inadequate defence safeguards. The 2012 provision for trials in absentia drew particular scrutiny. That history shadows the tribunal’s current proceedings. Applying a wartime statute to the political upheaval of July and August 2024 raises questions of jurisdiction and interpretation. Senior Supreme Court advocate Z I Khan Panna has warned that the precedent could be invoked by future governments against their political opponents.

A History of Refusals, a Chance to Set a Precedent
The demand for foreign counsel is not new. Applications to engage overseas lawyers were made for Ghulam Azam and Motiur Rahman Nizami; the possibility was explored for Delawar Hossain Sayeedi and Ali Ahsan Mohammad Mojaheed, while a formal request was made for Salauddin Quader Chowdhury. Each time, the door remained closed, either for want of authorisation or because the Bar Council withheld approval. In the Ghulam Azam case, even foreign witnesses and an overseas lawyer were denied entry into the proceedings.

The current applications carry that unhappy history. They concern former law minister Anisul Huq, former prime ministerial adviser Salman F Rahman, Major General (retd) Ziaul Ahsan and journalist Farzana Rupa. In December 2025, defence counsel sought time to engage foreign lawyers, prompting the tribunal to direct prison authorities to facilitate Ziaul Ahsan’s request. An application followed on 22 January 2026 to engage Steven Kay KC of 9BR Chambers in the United Kingdom. On 1 and 13 October 2026, further applications were submitted on Farzana Rupa’s behalf by Jonathan Price and Nikhila Kaushik of Doughty Street Chambers.

Yet the requests have largely met with silence. Section 11(8) of the Act permits foreign counsel, subject to prior approval from the Bangladesh Bar Council, and expressly provides that approval should not be unreasonably withheld. Silence cannot become a means of denying what the law allows. Nor can the state plead inconvenience: in September 2024, former chief prosecutor Tajul Islam publicly indicated that the prosecution would not object to foreign representation. A promise made in principle is hollow if the process prevents it from being realised.

The Bar Council should decide the pending applications without political discrimination or arbitrary delay, while the tribunal must ensure that Section 11(8) remains a living provision, not a dead letter. Accountability and due process are not rival causes; they are the twin pillars of legitimate justice.

Fair-Trial Concerns Cannot Be Dismissed
The debate over foreign counsel reflects wider concerns about the ICT’s procedures. Two writ petitions challenged the tribunal’s legitimacy: one by Supreme Court lawyer Muhammad Mohsin Rashid, who described it as an instrument of judicial murder, and another by Ziaul Ahsan in January 2025, challenging its jurisdiction over the July uprising. Although the latter petition was dismissed, broader questions of fairness remain.

On 30 March 2026, London law firm Kingsley Napley wrote to the tribunal concerning Sheikh Hasina’s trial in absentia, arguing that it violated fundamental fair-trial standards and warning that executing a death sentence on such grounds could amount to summary execution.

The concerns are particularly acute in absentia proceedings. The tribunals for Rwanda, the former Yugoslavia and Sierra Leone rejected such trials. Under Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), Bangladesh must protect the accused’s right to attend trial and defend themselves through counsel of their choice. The UN Human Rights Committee’s General Comment No. 32 permits trials in absentia only exceptionally, with adequate notification. In Maleki v Italy, it stressed the need for an effective right to retrial, a principle echoed by the European Court of Human Rights in Colozza v Italy under Article 6 of the European Convention on Human Rights.

When an accused is absent, access to chosen counsel becomes all the more important. Foreign representation would not cure every defect, but it would help ensure that absence from the dock does not become silence in the defence.

Human Rights Watch (HRW) has criticised restrictions on appeals and cross-examination, as well as the possibility of trials beginning within three weeks of evidence disclosure. In the case against Mohammad Hasan Mahmud Chowdhury and 21 others, a six-line paragraph reportedly appears almost verbatim in 14 witness statements, while another passage recurs identically in nine, raising concerns about evidentiary reliability. Such uniformity demands rigorous cross-examination by experienced defence counsel.

International Practice Offers a Precedent
Allowing foreign lawyers would not take Bangladesh into uncharted legal territory. Overseas advocates have participated in international criminal proceedings involving mass atrocities, working alongside local practitioners. At the International Criminal Tribunal for Rwanda (ICTR), foreign counsel led defence teams in complex genocide trials. At the International Criminal Tribunal for the former Yugoslavia (ICTY), lawyers from different jurisdictions examined cross-border evidence and international law. The Special Court for Sierra Leone (SCSL) combined local and foreign expertise in cases involving war crimes and crimes against humanity, while the Extraordinary Chambers in the Courts of Cambodia (ECCC) brought international co-lawyers together with domestic advocates in a hybrid tribunal.

Their participation did not diminish these institutions. It brought comparative jurisprudence, expertise in cross-border evidence and a deeper understanding of international human rights obligations. Rather than displacing local lawyers, foreign counsel can enrich domestic practice through collaboration and professional exchange.

Justice Must Withstand Scrutiny
The case for opening the tribunal to foreign counsel is ultimately a case for the credibility of its verdicts. A state confident in its jurisdiction, evidence and judicial impartiality should have little to fear from capable advocates. A strong prosecution does not require a weak defence; a conviction earns credibility by surviving rigorous challenge.

The practical benefits are equally clear. Experienced lawyers can expose evidentiary weaknesses before they taint a verdict, reduce avoidable procedural challenges and help align proceedings with international standards. A verdict reached after a vigorous defence is harder to dismiss as victor’s justice. One reached without adequate representation is harder to defend before history.

The Bar Council should decide the pending applications without political discrimination or arbitrary delay, while the tribunal must ensure that Section 11(8) remains a living provision, not a dead letter. Accountability and due process are not rival causes; they are the twin pillars of legitimate justice. Only proceedings that afford every accused a fair opportunity to defend themselves can deliver a reckoning that endures.