Abstract

This Article examines how the Supreme Court of Bangladesh relied on a theoretical model of Customary International Law (CIL) advanced by Professors Curtis A. Bradley and Mitu Gulati to withdraw from the rules of CIL. It explores how the Supreme Court applied the same reasons and relied on the same authorities as did the proponents of this model to effect a withdrawal. Although Bradley and Gulati advanced their model as an academic experiment, this did not deter the Supreme Court from applying the model to withdraw from the rules of CIL which define the jus cogens offence of crimes against humanity and to eventually sentence to death an opposition political leader on the basis of such withdrawal. Bradley and Gulati’s model of CIL has been subject to a lot of scholarly criticism and the Bangladesh experience has to some extent justified these criticisms. This Article shows how countries which are prevented from achieving certain outcomes or realizing certain goals because of CIL may simply adopt Bradley and Gulati’s model to withdraw from its rules.

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