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Retroactivity of
International Criminal
Tribunal Act
Barrister Tapas Baul

Definition:
" ... the prohibition of the retroactive application
of criminal law is a derivative of the nullum
crimen sine lege principle, a general principle of
criminal law which prohibits criminalizing acts
committed prior to the entry into force of a rule
banning such conduct as a crime."
Non-retroactivity of Criminal Law:
A New Chapter in the Hisse'ne Habre¤ Saga
Valentina Spiga
Journal of International Criminal Justice 9 (2011), 5 - 23

Retroactivity v. ICTA
This point was raised by the following parties:
● Ambassador Stephen Rapp
● Human Rights Watch
● Mr. Stephen Key, QC
● Mr. Soli J. Sorabjee
● and many others
Point to be noted:
Most of these parties, including the last two persons mentioned above, are
appointed by the Jamat - e - Islami, Bangladesh.

Retroactivity v. ICTA:
Points by Mr. Rapp
● In his First letter, he referred to Article 15(1)
of the ICCPR
● He wrote:
“The creation of a Tribunal in 2010 with jurisdiction
to try certain specified crimes committed in 1971 based
on a law passed in 1973 does raise a number of
questions as to the permissibility of retroactive
application of the law.”
● He also claimed that ICTA is Ultra Vires to
the constitution of Bangladesh

Points of Rapp conts.
● He wrote:
“the question of whether a retroactive statute
may be given effect must also be determined under the
constitutional law of Bangladesh. A party to a
proceeding before the ICT should be able to raise
questions as to whether provisions of the 1973 Act and
the 2009 amendments violate international or domestic
law as to retroactivity as well as other jurisdictional
matters.”

Our thoughts on Rapp's
comments:
HIS CONCEPTS ARE FUNDAMENTALLY
MISCONSTRUED

Why misconstrued?
● Laws like ICTA are widely accepted legal
practice
● Article 15(2) of the ICCPR which makes a
clear exception to non-retroactivity
● Incapacity of the ICC to exercise its
jurisdiction over the crimes committed in
1971
● Nature of the crimes being heinous, as
decided in Polykovich v. The Commonwealth
● None of the offences were unheard of in
1971

WIDELY ACCEPTED LEGAL
PRACTICE
When it comes to trying crimes of heinous nature such as
Genocide and War Crimes - that is, crimes deemed to have
been committed against all mankind - enacting legislation
to retroactively try these crimes is a widely accepted legal
practice. For example:
● ICTY was formed in 1993, two years after commission
of the Crime
● SCSL was formed in 2002, eight years after
commission of the crime
Whereas ICTA of Bangladesh was framed within one and
half years of commission of the crime

Article 15(2), ICCPR
“Nothing in this article shall prejudice the trial
and punishment of any person for any act or
omission which, at the time when it was
committed, was criminal according to the
general principles of law recognized by the
community of nations.”
The ICTA is entirely consistent with ICCPR
Article 15(2) since these crimes were already
been defined by the Nuremberg Trial.

ICC's INCAPACITY
● The ICC is the only institution which possesses
prospective jurisdiction
● It can only deal with crimes committed after its
governing statute came into force
● Rome Statute have the scope and ability of
incorporating extensive provisions like the Elements of
Crimes. This is due to the prospective nature of such
laws
● Retroactive laws such as the ICTY or ICTR or SCSL
Statutes do not contain any Elements of Crimes
● ICTA is also a retroactive law in line with the ICTY,
ICTR or SCSL; hence,it does not contain any Elements
of Crime as well

Nature of the Crime
● Constitutional safeguards against retroactive legislation
are generally not applicable for laws passed with the
purpose of prosecuting and punishing crimes of heinous
nature
● the permissibility of retroactivity was cemented by the
Australian High Court in Polyukhovich v. The
Commonwealth
● “The retrospective operation of the Australian War
Crimes Act was authorized by the constitution since that
operation was a matter incidental to the execution of a
power vested by the constitution in the parliament.’’
Dr. Mizanur Rahman, ‘An End to Impunity’ (December 2010)
http://www.thedailystar.net/forum/
2010/December/impunity.htm

Polyukhovich v. The
Commonwealth
● In the judgment of that case, Justice Dawson observed,
“[T]he ex post facto creation of war crimes may be seen
as justifiable in a way that is not possible with other ex
post facto criminal laws ... [T]his justification for a
different approach with respect to war crimes is reflected
in [Article 15(1)] the International Covenant on Civil and
Political Rights to which Australia became signatory on
December 18.’’
● Therefore, the retroactivity of the ICTA enacted by
Bangladesh is the same as the Australian War Crimes
Act of 1988. Both simply embody crimes existing then
during their respective enactments; questioning the
ICTA’s retroactivity amounts to overlooking standard
practice in international criminal law.

Offences were not unheard of in
1971
● In fact, the Pakistan Government was one of
the first countries to sign the Genocide
Convention
● the Geneva Conventions were already a part
of the international legal order existing in
1971.
● Therefore, by enacting the ICTA, the
Bangladesh Parliament was merely
recognising and acknowledging prevailing
norms of international criminal law.

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