Prosecution oral arguments supporting contempt application against HRW

On 22 August 2013, the tribunal heard the prosecution's oral arguments in support of its written application that Human Rights Watch (and two individuals who work for it) should be held in contempt of court for a press release that it wrote on the Ghulam Azam trial judgement.

Chief Prosecutor
Chief Prosecutor, Golam Arif Tipu first of all stood up and spoke briefly to the judges. He said that 'it is a principle of justice for the court to take a decision on the merit of the arguments and pass necessary orders. The application today will be made by other colleagues, and I am here incidentally to make introductory submissions.' He then quoted paragraph of the prosecution application

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.

 He said that this was the background of the the present case. He then read out para 5 of the application

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.

Sultan Mahmud Simon
Another prosecution lawyer, Sultan Mahmud Simon then replaced the chief prosecutor. He said that the prosecutors came to know about the HRW document when they read the newspapers. He said that the purpose of the application was to uphold the sanctity and dignity of the criminal justice system. He made the point that the matter of Golam Azam's appeal was now with the appellate division. He again went through the conclusions made by HRW. He emphasised that one of the allegation alleged collusion between the prosecution and the judiciary.

He then read out a number of sections from the 1973 International Crimes (Tribunal) Act (as amended).

6 (1) For the purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members.
(2) Any person who is a Judge, or is qualified to be a Judge, or has been a Judge, of the Supreme Court of Bangladesh, may be appointed as a Chairman or member of a Tribunal.]
(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.]

8. (1) The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial.

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

And also certain rules from the rules of procedure:

44. The Tribunal shall be at liberty to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodicals, and magazines, films and tape recoding and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non-admission of evidence by the Tribunal is final and cannot be challenged.

46A. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.

50 (A)(2) [text to be added]

He then said that there was no ambiguity to the rule 50(A)(2).

He then read out section 11(4) of the ICT Act containing details of the offence of contempt:

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 may extend to Taka five thousand, or with both.

Tapos Kanti Baul
Prosecutor Tapos Kanti Baul then began to make arguments. He referred to the copy of the press release (annexed to the prosecution application) and said that the name Human Rights Watch (HRW) is on the left hand side, and that below it is the title: 'Bangladesh: Azam Conviction Based on Flawed Proceedings', and there was a subtitle,  'Analysis Outlines how Fair Trial Rights of Accused Seriously Compromised' and that underneath this, the date 'August 16, 2013' was mentioned.

After reading out the press release, he said that this is a 'scandalous article' He then read out para 6 of the application

That the Petitioner concedes that issues relating to above mentioned allegation [in para 5] (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).

He then explained this by confirming that the prosecutors in this application are only interested in issues (a) and (b) as set out in para 5 - (that is (a) allegation that judges  improperly conducted an investigation on behalf of the prosecution in the Azam Cose, and (b) there was collusion and biasness among prosecutors and judges). He then read out para 7 of the application

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.

He said that the article was 'intended to undermine the tribunal', which is clear if you consider the 'timing of its publication when the proceedings were pending before the supreme court of Bangladesh'. He then read out para 8 and 9 concerned with the relevant section in the 1973 Act and in the rules of proceedings dealing with contempt of court (see section 11 of 1973 Act above)

He then said that the HRW article clearly '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,' (which is what needs to be proved for contempt)

He then went on to discuss the jurisdiction of the tribunal and argued that 'the "tribunal" not only includes ithe tribunal itself but also the judges, registrar and other staff and also includes the prosecution and the defense and investigative agency and witnesses and victims'

He said that if anything is done outside of the court which tends to prejudice the case of one of the parties which comes within the wording of section 11(4) then the tribunal has jurisdiction.

He argued that the term 'any person' includes a 'legal or human person' and included anyone who 'penned this scandalous article.'

He said that the tribunal has jurisdiction whether the 'person' is living either in Bangladesh or abroad - if that person does anything can be brought under the jurisdiction of the tribunal.

He then read out para 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' "

and said that the legal position was 'crystal clear' - words that were also spoken by the chief prosecutor from his seated position.

The prosecution then read out paras 13 and 14 and again made the point about pending proceedings.

He then moved onto the section of the application dealing with the 'background of the opposite parties'. He read out para 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'.

and said that the question is whether the stated objectives of Human Rights Watch is 'really a lie and a false statement.' He said that there were major criticisms of Human Rights Watch. He then read out para 16 of the application:

That the Opposite Party No 1 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.

He then started to refer to a bundle of papers that he passed to the tribunal judges to substantiate these claims

He pointed to an article written by Robert Bornstein titled Rights Watchdog lost in the Middle East and said that Bornstein was a founder of the organization, and chairman for 20 years. He then read out the opening line:

'As the founder of Human Rights Watch, its active chairman for 20 years and now founding chairman emeritus, I must do something that I never anticipated: I must publicly join the group’s critics.' 

He then read out the following excerpt:

"But how does Human Rights Watch know that these laws have been violated? In Gaza and elsewhere where there is no access to the battlefield or to the military and political leaders who make strategic decisions, it is extremely difficult to make definitive judgments about war crimes. Reporting often relies on witnesses whose stories cannot be verified and who may testify for political advantage or because they fear retaliation from their own rulers."

He then said that 'this is the same case in our sitaution [in Bangladesh] as well. There has been no represention in the tribunal of HRW. They did not set foot in this tribunal, but they come to denounce the judgment.'

He then referred to 'poor research and inaccuracy, and referred to a 2009 press release relating to human rights in Honduras which was titled: 'Over 90 Experts Call on Human Rights Watch to Speak Out on Honduras Abuses' He said that the criticism was from experts all of whom gave there names who wanted human rights watch 'to see the fuller picture in other parts of the world.'

He then went onto refer to a 'statement of the council of Hemispheric affairs' about Venezuela, titled, 'Scholars respond to HRW's Kenneth Roth's Riposte on Venezualan Human Rights'. He said that in the statement had criticised the 'scandalous criticism of HRW'

He then referred to 'selection bias' - where HRW 'makes comments selectively. In relation to this he mentioned that HRW 'shows slant against Israel, which shows biasness' and referred to the criticisms of the organsation NGO Monitor. He then asked: 'who 'suffers  because of HRW selectivity? The people of the World suffer.'

He then referred to HRW and Haiti claiming that the organisation had inaccurately reported on the overthrow of one of the leaders. He said: 'In world dominated by wealthy, NGO's work by saying what the the powerful want to hear. ... They are working as a tool of the powerful. That is the main allegation.'

He then again referred to articles which he said showed that HRW was 'anti-Israel' and suggested that HRW was criticising Israel, whilst not willing to criticise Hizbollah.

He then referred to an article in the Economist magazine of February 2009, 'The government says Human Rights Watch has got it wrong. Really?' concerning Ethiopia.

Tapos then spoke about HRW's 'ideological bias'. He said that HRW 'supports certain states and those who support their ideology' He then referred to an article (from the Global Jewish News Source) critical of HRW entitled, Who are the Israeli Accusers?

He then moved onto 'Unethical fund raising practices' of HRW and said that there is no information on who funds HRW and that they 'speak for whoever pays them'. The Chief Prosecutor then said 'They are out to make money'. Tapos then referred to an article in the Atlantic Magazine, 'Fundraising Corruption at HRW' He also referred to a $100 mill donation from the Soros open society, and an article which claimed that the HRW was 'Selling out to Soros'. The prosecutor said that HRW was selling out to the 'temptation of the wealthy'.

He said that HRW does not 'disclose its funds in annual reports.' He then refered to an article in the Wall Street Journal, 'Human Rights Watch goes to Saudia Arabia'. The prosecutor then said that 'he had not seen any [report] by HRW on Saudia Arabia. They keep mum about human rights violations in Saudi Arabia.'

Tapos then talked about bias and said that there were allegation relating to 'Latin America, Haiti, Lebanon, Ethiopia and Israel.'

He then said that there allegation of HRW employing 'Nazi supporters who were involved in war crimes investigations' and 'the appointment of known terrorists on the advisory board.'

He also argued that HRW 'publicly supported CIA renditions to other countries' and referred to this article

He said that there was a wide number of reports against HRW and what he had shown the court were just a few of them. 'Even insiders of HRW publicly blame the organisation for unethical policies.'

The prosecutor then went back to reading from the application:

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.

At this point he stopped and refered to three decisions by one or other of the two tribunals - one on 3 Jan 2013, another on 21 Jan 2013 and another on 13 December 2012 - which had raised questions about the relaiblity and authenticity of the Skype tapes, and stated that in all three the tribunal rejected giving any consideration to what was contained on the tapes. 'HRW should not talk about baseless allegations [in skype tapes] and have only done so to scandalise the court.'

The prosecutor then went on to discuss the 'lack of good faith' shown by HRW, and read out para 24 of the application.

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; 

He said that there was no record of HRW coming to the tribunal, and said that they had looked at the registers at the time when judgments were given and there was no record of someone from HRW attending.

He said that the organisation 'depends heavily on undisclosed donors and so to further then own agenda. The organisation has no ethics.'

Tureen Afroz
The prosecutor Tureen Afroz then started to give her presentation. The judges were initially in two minds about allowing her to speak, but finally allowed her

She first of all mentioned the allegation by HRW that the judges had improperly conducted an investigation on behalf of the prosecution. She passed up a file of the leading newspapers reporting on the event and suggested that they did not show that such an investigation had been undertaken. 'HRW has relied on others or sources not disclosed.'

She said that they were 'not against international human rights organizations' and said that they played an important role, as do all the others parties in this tribunal, including prosecutors, defence and the tribunal judges.

She then mentioned the allegation relating to colluion between the judges and the prosecutors. She said that when you looked at the HRW appendix, the only reference it gave on this issue was to a blog on the Economist website and nothing more. So she said their conclusion is that the HRW allegation is 'based on the blog writing' The alleged conversations 'however have no authenticity or reliability. I dont know what conversation exist or not.'

She then referred to Human Rights Watch supposed meeting with the tribunal judge. 'When did this meeting take place, I dont know. I dont know where it took place. Can human rights organisations take part in meetings with judges?.This is an absurd logic'

Tureen then criticised HRW in using the word 'should' in its statement - when it stated in its report that 'At a minimum, the ICT should have ordered an investigation into the wrongdoing' - and said that this showed that HRW had 'no respect for sovereignty of this country or its judicial system.'

She then quoted HRW stating that, 'instead, the tribunal authorities simply disregarded this irrefutable evidence of judicial bias' and said, 'how can HRW make a claim that this is irrefutable ... This is not protecting human rights at all.'

She then gave the tribunal another set of documents relating to the obligations of international human rights organizations. Again she stated, 'We are not against human rights organisations'. She referred to some case law and said that freedom of expression has its limitation.

'Human Rights Watch is not an independent organization. It is not an independent observer of this tribunal. This whole this lacks truth. It lacks good faith,' she said.

She then refered to a conference that took place in July 2013 at Heidelberg on Bangladesh war crimes, and read out long sections from a paper title: 'The politics evolving around the crime of genocide Bangladesh: Memory and justice' which was written by Paulo Casaca, Executive Director, South Asia Democratic Forum. Tureen read out this long extract:

“Human Rights Watch” – a private organisation that does not disclose the sources of its funding and does not reveal conflicts of interests of its responsible personnel – is the most clear example of a partisan campaign where an independent human rights checking was expected.

“Equality” and “proportionality” are two of the most basic principles of international customary law, and I believe they should lay at the heart of any appreciation of the way the International Criminal Court was established and acted in Bangladesh.

Many or possibly the vast majority of the criticisms raised on the procedures followed by the Bangladeshi authorities are most likely warranted by themselves, the issue here is to appraise up to what point these criticisms respect these two general principles.

In the first press release publicising recommendations addressed by HRW to the newly elected Bangladeshi authorities in 2009, no direct mention is made to the Court issue but only a small reference of the need of amending legal provisions in the letter to the Bangladeshi authorities.16

Shortly afterwards, in the context of a general report titled “Ignoring Executions and Torture Impunity for Bangladesh’s Security Forces” HRW, while rightfully criticising the long-­‐ existing culture of impunity on crimes against humanity in the country, introduces a paragraph that in practical terms contradicts the call to end impunity:

“In January 2009, the Bangladesh parliament adopted a resolution requesting the government to take immediate action “to try the war criminals. “In March, Law Minister Shafique Ahmed announced that the trials would be held under the International Crimes (Tribunal) Act, 1973. The Act does not require Bangladesh’s regular criminal procedure and evidence laws to be applied. This raises concerns that the trials may not meet international fair trial standards and may be subject to political influence. Death sentences may be handed down.”

HRW does not offer any argument which could explain this contradiction, how can it claim to be in favour of ending impunity while at the same time denouncing any measure directed towards ending impunity?

The only reason it gives for raising the issue of “politics” in the procedures is a declaration from the leader of the main opposition party, the BNP as quoted from a newspaper. It is quite extraordinary that HRW accusation of mixing politics with human rights is done on the sole basis of the declaration of a political leader; that is, HRW explicitly mixes human rights and politics and subsequently accuses others of doing so.

HRW made a first exclusive press release on the institution of the Bangladeshi International Criminal Court on the 8th of July 2009 that, while apparently congratulating the country for the act, gives clout to accusations on alleged failures to adapt the law to the evolution of international law. The chosen title to the press release clearly indicated what were HRW concerns and objectives: “Bangladesh: Upgrade War Crimes Law Failure to Meet International Standards Could Undermine Credibility of Trials for 1971 Atrocities”.

By this unjustified and unwarranted publicity HRW downgraded the Genocide crime into “1971 Atrocities”. The title also shows the other objective of the organisation: to argue with eventual failures of the process to undermine the credibility of the trials.

As it did in its first positioning in May 2009, HRW keeps referring in general terms to incongruence between international and Bangladesh law, but fails to make explicit, for instance, what are the supposed contradictions of the Genocide definition used by Bangladesh and international law.

From there onwards, we can easily follow HRW vast and ever more radical array of public positions and arguments against the international court by reading the extensive propaganda made by the political forces behind those accused in the international Court.

HRW press releases afterwards became ever more frequent and politically biased. Whereas very little is said on the widespread terror actions targeting minorities by the defenders of those convicted for Genocide19a set of implausible and unchecked stories is publicised aimed at building an image of an “India/Bangladeshi conspiracy fabricating proofs against good Muslim leaders”.

Whoever followed HRW set of press releases in the last few years will find a sectarian and biased account of events with a clear political agenda set on attacking Bangladeshi authorities and whitewash Islamists standing accused of Genocide crimes in the past and present.

That an organisation which was supposed to fight impunity and to act independently on behalf of human rights does exactly the opposite is perhaps the biggest drama of our present times.

The prosecutor Tapos then came to the front of the court and read out the 'prayer' to the court from the application.

(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.

The tribunal then set 2 September 2013 as the date for passing an order.