Prosecution contempt application against Human Rights Watch

This is a copy of application filed by the prosecutors seeking to initiate contempt proceedings against Human Rights Watch. This follows a press release issued by Human Rights Watch which was commenting on the 15 July 2013 judgment against Ghulam Azam.

You can read the oral arguments that went with this application here.

A petition for contempt under section 11(4) of the International Crimes (Tribunals) Act,1973, read with Rule 45 of the International Crimes (tribunal-l) Rules of Procedure, 20lA.

AND IN THE MATTER OF:

Chief Prosecutor ...Petitioner

Versus
1. Human Rights Watch, represented by its Board of Directors
2. Mr. Brad Adams, Executive Director, Asia Division, Human Rights Watch,
3. Mr. Storm Tiv, Associate, Asia Division, Human Rights Watch. ...Opposite Parties

1. That on 15th July 2013, the Hon'ble International Crimes Tribunal No. 1 of Bangladesh delivered its judgment in the Chief Prosecutor versus Professor Ghulam Azam, ICT-BD Case No. 06 of 2011 (henceforth, Azam Case) and sentenced him for 90 years of imprisonment since he was found guilty, beyond reasonable doubt, for the offences, under section 3(2) of the International Crimes (Tribunals) Act, 1973 (henceforth, the 1973 Act). committed by him in 1971.

2. That the Appeals of the Azam Case against the conviction and sentencing are now pending before the Appellate Division of the Supreme court of Bangladesh.  

3. That on 16th August 2o13, opposite Party No. 1, an intemational NGO, namely - Human Rights watch, its Head office being in 350 Fifth Avenue, 34th Floor, New York, Ny 10118-3299 USA, originated an article written by the Opposite Party No. 3, namely one Storm Tiv, an Associate of Asia Division, Human Rights Watch, his working address being [..] under the direct supervision of Opposite Party No. 2, namely Mr. Brad Adams, Executive Director, Asia Division, Human Rights Watch, his working address being [..] The said article was published via Opposite Party No l's worldwide official website (http://www.hrw.org) with the following caption: Bangladesh: Azam conviction based on flawed Proceedings: Analysis outlines how Fair Trial Rights of Accused Seriously Compromised fair trial’.  

That the said article is attached herewith and marked as, Annexure-A.

4. That in the said article dated 16th August, 2013, the Opposite Party No. 1 with bias and mala fide intention most unethically commented, while the Appeals are pending before the Appellate Division of the Supreme Court of Bangladesh, on the Professor Ghulam Azam's trial proceeding at this Hon'ble Tribunal and the evidential issues of the same case.

5. That in the said scandalising article, the Opposite Party No. 1 alleged, inter alia, that: 

(a) Judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Cose; 

(b) There was collusion and biasness among prosecutors and judges in the Azam Case; 

(c) The Tribunal failed to take steps to protect defense witnesses of the Azam Case, 

(d) There were changes in the judicial panel during trial of the Azam Case; and 

(e) There was lack of evidence to establish guilt beyond a reasonable doubt in the Azam Case.

6. That the Petitioner concedes that issues relating to above mentioned allegation (e) are clearly a matter sub-judice and issues relating to allegations (c) and (d) are of no relevance to the Petitioner and as such, the Petitioner does not at all rest his prayer on issues relating to allegations (c), (d) and (e).

7. That the petitioner submits that statements made in reference with the issues relating to above mentioned allegation (a) and (b) are biased, baseless, utterly false and fabricated, ill-motivated, and are not made in good faith. Such statements were made only to scandalize this Hon'ble Tribunal and its process (by exercising its independent judicial functions and also fair trial) and to undermine the confidence of the people in the integrity of this Hon'ble Tribunal and its process.

8. That the Petitioner therefore prays, relying upon issues relating to above mentioned allegations (a) and (b) only, that this Hon'ble Tribunal may issue an order of contempt against the above-mentioned opposite parties under section 11(4) of the International Crimes tribunals) Act,l973, read with Rule 45 of the International Crimes (Tribunal-1) Rules of Procedure, 2010 "

I Applicable Laws

9. That section 11(4) of the International Crimes (Tribunals) Act,1973 states that: 

''A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which extent to Taka 5ive thousand, or with both.'

10. That moreover, Rule 45 of the International Crimes (Tribunal-I) Rules of Procedure, 2010 states that:

'In pursuance of section I I (4) of the Act, the Tribunal may draw a proceeding against any person who obstructs or abuses the process of the Tribunal, or disobeys any of its order or direction of the Tribunal, or who does anything which tends to prejudice the case of a party before the Tribunal, or tends to bring the Tribunal or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal.'  

II. Jurisdiction of the Tribunal 

11. That the Petitioner submits that this Hon'ble Tribunal has jurisdiction over the relevant matter and the parties.  

12. That the Petitioner humbly submits that under section 11 (4) of the 1973 Act, this Hon'ble tribunal is empowered to punish 'any person', which includes both natural and legal person, whether living in Bangladesh or abroad, who 'tends to bring it or any of its members into hatred or contempt' and/or 'does anything which constitutes contempt of the tribunal' "

13. That the Petitioner humbly submits that the above-mentioned opposite parties, by publishing the said article through its worldwide website and thereby scandalising this Hon'ble Tribunal, either have 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' aractwhich constitutes contempt of the Tribunal.'

14. That, therefore, this Hon'ble Tribunal has jurisdiction over the relevant matter and the parties under section 11(4) of the 1973 Act, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure, 2010.

III. Background of the Opposite Parties

15. That Opposite Party No 1 is an US based international human rights organization which has been in operation for the last 30 years or so" In its official website, at http://www.hrw.org/about, it claims to be 'one of the world's leading independent organizations dedicated to defending and protecting human rights'. It further claims that by focusing international attention where human rights are violated, it 'gives voice to the oppressed and hold oppressors accountable for their crimes'.

16. That the Opposite Party No t has been vehemently criticized worldwide for its motivated activities as a human rights organization. Some of the major allegations against the Opposite Party No 1 include, inter alia:

(a) allegations of poor research and inaccuracy; 

(b) allegations of selection bias; 

(c) allegations of ideological bias; 

(d) allegations of unethical fund raising policies; 

(e) allegations of bias for or against particular nations; 

(f) allegations of appointing Nazi policy supporters (such as, Mr. Marc Garlasco) as investigator to report on war crimes and crimes against humanity;  

(g) allegations of appointing (pro-US) terrorists (such as, Mr. Shawan Jabrain) to its Advisory Board; and 

(h) allegations of publicly supporting CIA's illegal actions of extraordinary rendition towards suspected (anti-US) terrorists.

17. That a wide number of reports, research publications, open letters of scholars etc. evidences the unethical and motivated role played by the Opposite Party No 1 in various parts of the world by its unreliable, uncredited, inaccurate and bias reports and findings on human rights matters. Even, the insiders like Mr. Robert L Bernstein, a founder and former chairman of the Opposite Party No 1 has publicly blamed the Opposite Party for its unethical and motivated activities.

IV Contemptuous Issues

18. That in the above mentioned scandalous report, originated by the Opposite parties, alleges that judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Case.

19. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The Petitioner also denies that there was ever any such request made by the prosecution in the Azam Case. Further, the judgment of the Azam Case does not at all endorse any such investigation being done by this Hon,ble Tribunal.

20. That the Petitioner submits that such allegation made by the Opposite parties are baseless, complete distortion of facts, ill-motivated and as such, unreliable. These statements were made merely to scandalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.  

21. That further in the above mentioned scandalous report, originated by the the Opposite Parties, alleges that there was collusion and biasness among prosecutors and judges in the Azam Case.  

22. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The petitioner also denies that there was ever any unholy or discrete association between this Hon'ble Tribunal and the prosecution. These statements were made merely to scadalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.  

23. That the only reference made by the Opposite Parties to its finding of collusion and biasness among prosecutors and judges in the Azam Case was an alleged skype communication between a member of the bench with his acquaintance at a very personal level. The Petitioner concedes that the said member of the bench did voluntarily resign to avoid any unwanted controversy. However, the Petitioner submits that no inquiry, whether legal, social or technical, was ever made to find the authenticity of the said skype communication and as such, the existence, let alone, content of the skype communication, can not be relied upon to allege a collusion and biasness among prosecutors and judges in Azam Case.

V. Lack of Good Faith

24. That the Petitioner submits that the allegations (a) and (b) made in the scandalous article originated and published by the Opposite Parties lack 'good faith' on the part of the Opposite Parties. This is because:

i. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties have unnecessarily questioned the image, standing and reputation of this Hon'ble Tribunal and as such, scandalized this Hon'ble Tribunal; 

ii. For that the Opposite Parties have never carried on any independent investigation/research/inquiry to make such scandalous remarks contained in allegations (a) and (b) about this Hon'ble Tribunal and its process; 

iii. For that the statements were inaccurate as it does not rely upon any reliable authority or in that matter any authority at all; 

iv. For that the Opposite Parties, claiming to be an independent trial observer of the ICT BD, has never personally attended through any of its member or representative to observe a single trial of this Hon'ble Tribunal whether in Azam Case or other; 

v. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties are made long after pronouncement of the judgment of the Azam Case especially, when the Appeal of the Azam Case is pending before the Hon'ble Appelate Division of the Supreme Court of Bangladesh; 

vi. For that the Opposite Parties are in a chronic habit of publishing reports relying upon poor research and inaccurate facts; 

vii. For that the Opposite Parties are in a chronic habit of exercising selection and ideological bias; 

viii. For that the Opposite Parties are in the habit of following unethical, immoral and undisclosed financial policies ; 

ix. For that the Opposite Parties are heavily dependent upon their undisclosed donor (private persons and private organizations) driven fund and as such, committed to fulfill the agenda of such undisclosed donors; 

x. For that the Opposite Parties do not practice any ethical standard in its recruitment policies and even go a long way to accommodate terrorists and human rights violators in their board; 

xi. For that the Opposite Parties have illegally intervened in the judicial process of a sovereign country and tried to assassin the image of the entire process of trial of war criminals at the ICT BD and the judicial system, in general, of Bangladesh; 

xii. For that the Opposite Parties have wrongfully exercised their 'freedom of expression' as guaranteed under Article 19 of the (Universal Declaration of Human Rights, 1948 and Article 13 of the American Convention of Human Rights, 1969 and as such, an contempt rule upon them shall not merit any 'chilling effect'; 

xiii. For that the Opposite Parties have violated all norrns of journalistic morality as expected under the international law; 

xiv. For that the Opposite Parties under the veil of an human rights organization cannot become a partisan to a human rights issue simply because their undisclosed donors demand so; 

xv. Finally, for that, statements made at allegations (a) and (b) contained in the scandalous report of the Opposite Parties do not only attract the provisions of section 1l(4) of the 1973 Act but also, the rules and practices of the international law.  

VI  PRAYER  

Therefore, it is humbly prayed that this Hon'ble Tribunal may kindly:
(a) issue a contempt notice stating that why a contempt proceedings should not be initiated against the Opposite Parties in exercise of power of this Hon'ble Tribunal under section 11(4) of the International Crimes Tribunals) Act, 1973, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure;

(b) upon hearing, convict the Opposite Parties under section 11(a) of the International Crimes (Tribunals) Act, 1973, read with Rule 45 of the International Crimes Tribunal) Rules of Procedure, 2010 for publishing an article dated 16.08.2013 (Annexure - A) through its worldwide website and thereby scandalising this Hon'ble Tribunal by biased, baseless, false and fabricated and mala fide publication (Annexure -A), and as such, have either 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' an act which constitutes contempt of the Tribunal';

(c) to stay further display, publication, circulation or use in any matter or in any other form of the scandalous Article dated 16.08.2013 (Annexure-A)

(d) upon conviction, sentence the Opposite Parties, with imprisonment of one year and/or adequate fine and forward and notify for the execution of the same to the competent state, i.e., USA through the Ministry of Foreign Affairs;

(e) issue any other order(s) or direction(s) that this Hon'ble Tribunal deems fit and proper for the interest of justice.