The International Crimes Tribunal (ICT)-1 has delivered the first verdict for crimes against humanity committed during the July uprising recently, while ousted Prime Minister Sheikh Hasina and former Home Minister Asaduzzaman Khan were sentenced to death. Although another accused and subsequently considered as an approver under the International Crimes (Tribunals) Act (ICTA), 1973, in the same case, Ex-Inspector General of Police (IGP) Chowdhury Abdullah Al-Mamun was sentenced to five years in prison despite being convicted of the same crime.
Section
15 of the ICTA deals with the provision of ‘approver’ although the Act does not
provide any definition to it, and the term is used as heading/marginal note of
the mentioned section. The Code of Criminal Procedure (CrPC), 1898 also neither
defined nor used the term, but it is usually applied to a person, supposed to be
directly or indirectly concerned in or privy to an offence, to whom a pardon is
granted under section 337 of the Code with a view to securing his testimony
against other persons guilty of the offence. In cases in which a pardon is
tendered under the CrPC, the intended approver should always be made clearly informed of the extent of the pardon offered to him; it should be explained to
him that he is being tendered a pardon and will not be prosecuted in respect of
such and such a case, and no others. Former police chief Chowdhury is the first
person declared as approver under the Act, and that is why his lenient penalty
creates debate regarding its suitability.
As
per media reports, during the charge hearing, the tribunal asked him whether he
was guilty or innocent. At that moment, the former IGP pleaded guilty and said,
"I plead guilty. I am willing to voluntarily disclose the truth and
details of all the circumstances related to the case." Consequently, the
tribunal granted his plea and treated him as an approver for the case. Since then,
he has been turned into a prosecution witness and gave crucial evidence. The
vital legal question now arises whether a prosecution witness, who was an
accused in the case, should be awarded a harsh sentence or be acquitted if the conditions are fulfilled.
According
to media sources, the Chief Prosecutor of the Tribunal said about the fate of
the approver earlier and opined that it is the exclusive jurisdiction, while the
tribunal can pardon him if a full and true disclosure of the crime is revealed
through his testimony or make any other order. The conditions for such
pardon outlined in the law are i) full (not partial), ii) true (not
fabricated) disclosure about the iii) whole (not in part) of the circumstances
by the approver.
In
this case, the ICT pronounced that the former Police chief’s role/contribution/confession/cooperation
in proving the charges in the case as an approver were taken into consideration, which indicates that he has fulfilled the conditions. Because of that, he has
been awarded a lighter punishment than his co-accused, although the tribunal
convicted Sheikh Hasina, Asaduzzaman Khan and Chowdhury Mamun for instigation,
incitement, issuing order to mass killing, offences under superior command
responsibility, and joint criminal enterprise.
Another
question is whether there is any exception when the tribunal can inflict
punishment to the approver. The answer is if the approver does not fulfil the above
conditions, then the pardon will be revoked. In that case, the
approver can be tried for the original offense for which s/he was pardoned, and
his/her own confession/statement given as part of the pardon process can be
used against him/her in that trial. Moreover, punishment can also be
given if the approver is found to have committed a different
crime that is not covered by the pardon. Hence, the pardon offered under
S. 15 does not provide blanket immunity for all criminal activities of the
approver.
The
complexity does not end here. Now the question is, what does the word pardon
mean as used in the law? Does it mean acquittal or a lesser punishment than
what should have been given? It requires an interpretation from the court to
avoid confusion. However, section 26 of the ICTA has overriding
effect over all other laws, including the CrPC and the Evidence Act of the
country.
Nonetheless, if we scrutiny into international criminal law jurisprudence then we will see Article 65 of the Rome Statute of the International Criminal Court provides a framework for proceedings on an admission of guilt where the tribunal is not bound by the admission and must satisfy itself that: i) the accused understands the nature and consequences of the admission, ii) the admission is made voluntarily after sufficient consultation with defense counsel and such admission is supported by the facts of the case, based on the charges, any evidence presented by the prosecutor, and any other materials presented by the accused.
Nevertheless, it is clear in
the Rome Statute that the accused remains accused not turn into a prosecution
witness, and the Chamber may convict the accused even if the accused satisfies the
above requirements. Hence, there is no scope for a predetermined or lenient
sentence for an admission under Article 78. In addition, the Guidelines for Agreements
Regarding Admission of Guilt adopted by the ICC heavily emphasize the
Court's independent duty to establish the truth. Judges must examine not just
the agreement between the parties, but also other evidence presented by the prosecutor
and any other evidence, which can include victim representations and other
sources, to ensure the facts are complete. Besides, the Guidelines explicitly
recognize the need for victims to be informed of the proceedings and to be able
to present their views and concerns, ensuring the process does not overlook
their interests.
In
contrast, the statutes and rules of the International Criminal Tribunals for
the former Yugoslavia (ICTY) and Rwanda (ICTR) contained provisions for
formal plea agreements under Rules 62 ter of the ICTY and
62 bis of the ICTR. An accused could plead guilty to specific
charges, often after negotiations with the prosecutor, who might agree to drop
other counts or recommend a sentence. However, the Trial Chamber was not bound
by the agreement. Judges had to verify that the plea was voluntary, informed, and
unequivocal and that a sufficient factual basis for the crimes existed. In
these cases, a convicted person received a sentence determined by the judges,
with a guilty plea being a significant mitigating factor, often leading to a
substantially reduced term.
To
understand the issue of pardon in international criminal jurisprudence, we
should further look into the primary goals of international criminal law and
tribunals are not just to punish, but to establish a historical record of
atrocities, promote reconciliation, deter future crimes, whereas a unilateral
pardon could undermine these goals by appearing to offer impunity. Sentences
are meant to reflect the individual's guilt and the gravity of the crime, while a
pardon would circumvent this carefully calibrated judicial process. Hence, someone
like Mr Mamun, who was a superior as the police chief, is criminally liable for
crimes against humanity, and a complete pardon or acquittal is incompatible with
the core principle of individual criminal responsibility for international
atrocities, which seeks to eliminate impunity.
Now
the question is, was he punished without getting the opportunity for a fair
trial? How can a prosecution witness be punished without violating the
conditions? Or did he get a chance to call witnesses on his behalf? Did he get chance
to cross-examine the witnesses brought against him? Or was he sentenced based
on the guilt pleaded at the beginning of the trial?
Although there is now some confusion about these issues, it is clear that despite repeated amendments, there are still many ambiguities and loopholes in our ICT Act and the law has not yet reached international standards. Due to these legal ambiguities and weaknesses, there is now an opportunity to question the trial process and punishment of Chowdhury Abdullah Al-Mamun. In particular, the provisions related to the approver did not follow either the prevailing law in the country or international standards. As a result, this punishment could not pass the criteria of fairness in any aspect. As a result, justice may now be obstructed, and it has created an opportunity to question the integrity and fairness of the overall trial process.
Published in the Bonik Barta as Sub-editorial on 21 November 2025 on page 4.
Published on the Prothom Alo (Online Version) on 22 November 2025 as Opinion.
Published on The Daily Star (Online Version) on 5 December 2025.
