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The appointment of judges, investigators and prosecutors for the International Crimes Tribunals-Bangladesh along with the issuance of warrants for the arrest of Sheikh Hasina and 45 others, indicate that the tribunal is initiating its proceedings, likely from the first week of November. In the prosecution of international crimes, whether in national or international courts, prosecutors play a decisive role in implementing the mandates of the judicial bodies. The case selection policy of the prosecutors lies at the core of the activities, which is pivotal for shaping prosecutorial strategies. The International Crimes Tribunal-Bangladesh should not be considered an exception.

Generally, a prosecutor’s case selection strategy is guided by the founding instruments of the tribunal. For example, the Office of the Prosecutor of the International Criminal Court developed its policy paper on case selection and prioritisation based on the Rome statute and the rules of procedure and evidence. In this context, the Office of the Prosecutor of the International Criminal Court has focused on factors such as the ‘gravity’ of the case and the ‘degree of responsibility’ of the potential indictee. Similarly, the UN ad hoc tribunals formulated their case selection policies based on their founding instruments and situational demands. Initially, the tribunals prioritised the ‘seriousness of crimes’ and the ‘high level of responsibility’ of the accused, later shifting towards the ‘seniority of leadership’ as more senior figures became available for prosecution.

Both the International Crimes (Tribunals) Act 1973 and the International Crimes (Tribunals) rules of procedure 2010 do not provide any concrete guidelines on case selection. Furthermore, previous International Crimes Tribunal-Bangladesh prosecutors did not establish any publicly available case selection policy. In the absence of such a policy, the completed cases provide some insight into the underlying policy. It appears that the prosecutors’ case selection was politically motivated, initially targeting senior opposition leaders and later focusing on low-level accused. Despite prosecuting a number of local indictees in their absence, no Pakistanis were ever prosecuted. Notably, only seven cases reached appeal and review stages before the Appellate Division of the Supreme Court, all involving senior opposition politicians. This completion strategy of the International Crimes Tribunal-Bangladesh cases further confirms the political considerations behind the case selection policy of the past prosecutors.

As the tribunal investigates the July massacre, a fresh case selection policy should be devised, aligning with the International Crimes (Tribunal) Act, its rules of procedure and ground realities. The experiences of international criminal courts and tribunals could guide the International Crimes Tribunal-Bangladesh to formulate such a policy. The practices of the UN ad hoc tribunals may be particularly relevant as they dealt with a single situation involving a diverse range of perpetrators.

A case selection policy for the International Crimes Tribunal-Bangladesh could be based on four criteria: seriousness of the crime, the likelihood of conviction, the level of leadership and the availability of the indictee. Each criterion warrants further elaboration.

First, the seriousness of the crime should be the starting point in case selection. Although international crimes are by definition serious — especially because of their contextual elements — additional factors should be considered to assess their ‘serious’ nature, such as the number of victims, the severity of the crimes and the impact on the affected communities. The contextual elements of international crimes are also helpful to understand the ‘seriousness’ of crimes. Distinguishing between serious and ordinary crimes is important for judicial economy, allowing the International Crimes Tribunal-Bangladesh to focus on cases that truly warrant attention. As a special judicial forum with a special procedural framework, the tribunal is expected to handle serious international crimes, avoiding non-serious ones to ensure timely and effective proceedings.

Second, the likelihood of securing a conviction is a critical factor in the case selection policy. While selecting a case, it is essential to assess whether sufficient evidence meeting the criminal law standard is at the disposal of the prosecutors to establish both the crimes and the criminal responsibility of the accused. It may happen that prosecutors may opt for cases involving less serious crimes but with a higher likelihood of conviction, as pursuing highly serious crimes with a low probability of success could undermine prosecutorial strategy and invite political backlash. That is why the prosecutors need to exercise extreme caution in selecting a charge of a case.

Third, the level of leadership should also be a key consideration while selecting a case. While it is ideal to prosecute the most responsible individuals, apprehending top leaders at the start of proceedings is often impractical. On the contrary, it may be more feasible to prosecute lower-level leaders with lesser responsibility. In the absence of a legal requirement to target only the most responsible individuals, as stipulated in the Rome statute, starting with lower-level prosecutions can lay the groundwork for future cases involving senior figures.

Finally, the availability of the accused is crucial to the prosecutors’ overall strategy. While the International Crimes Tribunal-Bangladesh allows trial in absence, such cases pose certain legal and policy challenges. For example, in trials in absence are less likely to face rigorous legal scrutiny during proceedings, even with defence counsel appointed by the tribunal. Additionally, cases tried in absence of the accused typically do not proceed to appeal and review stages, limiting the tribunal’s ability to thoroughly test its procedures. On the contrary, in-person trials offer the tribunal an opportunity to address both substantive and procedural issues of a case comprehensively. It also provides the occasion for validating the tribunal’s findings by the Appellate Division in appeal and review proceedings.

A balanced case selection policy incorporating the criteria would support the development of a comprehensive prosecutorial strategy. For instance, prosecuting in-person cases involving lower-level leaders for less serious crimes that can be proved with existing evidence would help to resolve challenges in subsequent trials. This approach would allow the tribunal and prosecutors to build on previously settled legal issues in prosecuting senior figures for the most serious crimes. It is noteworthy that some star defendants, like Duško Tadić at the International Criminal Tribunal for the former Yugoslavia, were lower-level perpetrators. However, the factual and legal developments brought forward by tho cases play significant roles in shaping broader prosecutorial strategies.

Considering the significance of case selection policies as evidenced by various international courts and tribunals, the International Crimes Tribunal-Bangladesh should seriously consider adopting its own policy to enhance legitimacy and transparency. The four criteria outlined above could provide a solid foundation for the International Crimes Tribunal-Bangladesh to develop a balanced and effective case selection policy.

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Quazi Omar Foysal is an international law expert, working at the American International University-Bangladesh.