Regrettably, the former government of Bangladesh, under the leadership of Prime Minister Sheikh Hasina, committed serious human rights violations between 1 July and 5 August 2024, including but not limited to hundreds of extrajudicial killings, extensive arbitrary arrest and detention, torture, indiscriminate use of force by the law enforcement agencies, and other forms of ill-treatment. The Office of the High Commissioner of Human Rights (OHCHR) found ‘reasonable grounds‘ to believe that serious human rights violations were committed by the former government, its security and intelligence services, and violent members of the Awami League during that time. Hence, the former government’s activities warrant the attention of international criminal law.

These grave human rights violations meet the fundamental criteria for a crime against humanity. The activities of the former government satisfy the requirement of “widespread” and “systematic” as introduced by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The term “widespread” refers to the large-scale nature of an attack, while “systematic” refers to the organised nature of the acts of violence, as explained in the Kunarac Trial Chamber case [428-9]. The “attack”, under customary international law, could precede, outlast, or continue during the armed conflict, it need not be a part of it (Kunarac Appeals Chamber case, [86]). The term “attack” in the context of crimes against humanity is not limited to the use of armed force; rather, it encompasses the perpetration against the civilian population of a series of acts of violence or of a kind of mistreatment. In fact, a single killing by a perpetrator can qualify as the crime of “extermination” if it is proven that it formed part of a context where a large section of civilians is subject to widespread killing. The “systematic” nature of the attack is a qualitative assessment, referring to the organised nature of committed acts as per the notion of crime against humanity.

The former Prime Minister, along with other political leaders and security officials, was fully aware of and coordinated and directed all human rights violations to suppress the protests. In fact, the Prime Minister received direct information about the security forces’ excessive use of force. Despite having direct personal knowledge of these violations through site visits during protests, the Prime Minister refrained from taking any action. She allowed the law enforcement authorities to continue to use a similar pattern of violence—that is, the non-accidental repetition of similar criminal conduct (Kordić & Čerkez Appeals Chamber case, [94]) on a regular basis between July 1 and August 5 in a coordinated and systematic way to attack protesters. None of the acts were carried out as ‘isolated or random‘ acts. Rather, her direct authorisation to the security forces satisfied her part in the attack. With respect to the mens rea, she acted with knowledge of the overarching context of the attack and with the knowledge that her acts/omissions contributed to the widespread and systematic attack against the civilian population.

The law enforcement agencies’ extensive and systematic attack resulted in the deaths of approximately 1400 individuals in 45 days, 12–13% of whom were children. This left thousands in a life-altering condition and more than 11,700 individuals arrested and detained. According to the OHCHR report, military rifles accounted for 66% of the fatalities, followed by shotguns with projectiles at 12%, pistols at 2%, and other firearms at 20%.

The former prime minister’s direct involvement in the plan with security forces, where she specifically instructed them to ‘arrest the ringleader of the protests, the troublemakers, kill them, and hide their bodies,’ may hold her liable for individual criminal responsibility as per section 25(3)(b) of the Rome Statute. The term ‘orders’ in the Statute means she is not a mere accomplice, but rather a perpetrator by means. As a head of state, she is criminally responsible for the indiscriminate use of lethal force by security forces on protesters in numerous locations across Bangladesh. The liability for her actions, as per international criminal law, emerged in a collective context and systematic manner. The totality of the evidence therefore indicates the organised nature of the acts of violence and the improbability of their random occurrence (Kordić & Čerkez, [94]) which constitutes a crime against humanity.