Tribunal overreach in Human Rights Watch case

An obvious question that has so far not been raised concerning the prosecution's attempt to seek a contempt conviction over Human Rights Watch (in relation to a report it published on the Ghulam Azam trial), or the tribunal's subsequent order seeking a response from the organization over the allegations, is whether or not the International Crimes Tribunal even has the power to deal with this matter.

Arguably, the tribunal has no jurisdiction at all.

In its written application, the prosecutors stated in 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'

The prosecution seem to be asserting that the words's 'any person' includes a person who lives abroad - and the tribunal, in as much as it passed this order, seems to be accepting this.

However, the very first section of the Act - section 1(1) - explicitly limits the jurisdiction of the International Crimes (Tribunal) Act 1973 "to the whole of Bangladesh".

Yet, no aspect of the alleged offense was committed in Bangladesh: the offending article was neither written nor published within the country by Human Rights Watch or its officials.

It is therefore difficult to see how the tribunal has any jurisdiction over the organisation, which is based in the United States or those who work for it whilst outside Bangladesh.

On this basis alone it would appear that Human Rights Watch should be able to swat the legal action away.

We will have to wait and see how the tribunal explains how it does have jurisdiction over HRW.

If the prosecution/tribunal really wanted to take action within its powers it should have issued a notice of contempt against every Bangladesh newspaper/electronic media that published details of the Human Rights Watch statement.

The alleged offenses would at least then have taken place in Bangladesh - and been within the tribunal's competence.

Bar Human Rights Committee: 'a chilling attempt to silence criticism'

The Bar Human Rights Committee of England and Wales, which has commendably - along with Human Right Watch - taken a keen interest in the trials taking place at the International Crimes Tribunal in Bangladesh, has issued a statement 'expressing concern' at the contempt charges brought by the prosecutor against Human Rights Watch.

- Ghulam Azam trial judgement

- Human Rights Watch statement on judgement 

- Prosecution written application seeking contempt proceedings

- Prosecution's oral arguments in support of application

- Comment on prosecution application

- Media reporting of tribunal judges pre-judgement speech

BHRC's statement - which was in fact published before the tribunal passed its order - states that, 'the current charges against HRW amount to a chilling attempt to silence criticism of the ICT.'

The statement particularly notes that 'The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship Between the Three Branches of Government' which state:

“criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial functions.”

The statement is available on the BHRC website here, and is also reproduced below. Previous statements made by the BHRC on the Bangladesh ICT are available here

BHRC expresses concern at the contempt charges brought against Human Rights Watch by the Chief Prosecutor of the International Crimes Tribunal ("ICT") in Bangladesh. 

The Bar Human Rights Committee (“BHRC”) expresses its concern at the contempt charges that have been brought against Human Rights Watch (HRW) by the Chief Prosecutor to the Bangladesh International Crimes Tribunal ("ICT").

The charges relate to a report by Human Rights Watch on 16th August 2013 criticising the trial and subsequent conviction of Professor Ghulam Azam as falling far below international fair trial standards. Criticism of the ICT proceedings has been widely voiced internationally. The US Ambassador at Large on War Crimes Issues, Stephen J. Rapp, has publicly stated, in respect of earlier verdicts given by the ICT that "these convictions are not yet final. [These] issues are being raised in the submissions of the defendants in the appeals pending. It is not too late to get these things right in the Supreme Court or to adopt the [se] principles (of fair trials in accordance with international standards)."

Judges and the judicial process are open to criticism under the Bangalore Principles. The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship Between the Three Branches of Government state: “criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial functions.”

The UN Declaration on Human Rights Defenders states that human rights defenders have the right “freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms.”

BHRC is concerned that the current charges against HRW amount to a chilling attempt to silence criticism of the ICT.

BHRC urges concentration upon examining those aspects of the trials and convictions that are criticized with a view to ensuring due process compliance rather than pursuing detractors. We support Stephen J. Rapp’s invitation that it is not too late for flaws in the trials to be accepted and remedied.

Tribunal passes order on contempt application against Human Rights Watch

2 Sept 2012

This is a detailed note taken of the order as read out by the Tribunal One chairman Justice Kabir relating to the prosecution's application seeking contempt proceedings to be issued against Human Rights Watch and two of its staff members concerning a report that the human rights organisation published regarding the trial of Ghulam Azam. It will be replaced by the text of the actual order as soon as it is available.

- Ghulam Azam trial judgement
- Human Rights Watch statement on judgement 
- Prosecution written application seeking contempt proceedings
- Prosecution's oral arguments in support of application
- Comment on prosecution application
- Media reporting of tribunal judges pre-judgement speech

Below is the order read out in court.

Today is fixed for passing order on an application filed for contempt under section 11(4) of the 1973 ICT Act by the chief prosecutor seeking the drawing up of proceedings against Human Rights Watch and two officials, the opposite parties. 

The chairman and two members are judges of the supreme court of bangladesh. This tribunal is a legally constituted judicial body set  upon 28 March 2010 to try crimes against humanity and other international offices as specified in section 3 of the ICT Act 1973. 

Mr Tapos with Sultan Mahmodd and Tureen Afroz made application for contempt in open court. The learned prosecutors submitted that this tribunal by observing such laws pursuant in the 1973 ICT Act and rules of procedure conducted the trial of Ghulam Azam and gave verdict on 15 July 2013 and convicted him and sentenced him to 90 years. 

It is submitted that two appeal have been made against judgement relating to Ghulam Azam which are not proceeding in the Appellate Division - but that despite this the opposing parties willfully made illegal comment on sub judice matter which is unethical. 

The opposite party no 3, working under the direct supervision of opposite party no 2 an article published on 16 August 2013, with title 'Bangladesh: Azam conviction based on flawed proceedings'. In same article on 16 August 2013, the opposite party 1, 2 and 3, criticised judgement and charges in the following way: 

(a) judges undertaking investigations
(b) collusion between prosecutors and judges
(c) tribunal failed to take steps to protect defence witnesses
(d) changes in judicial panel in the Azam trial
(e) lack of evidence to prove charged beyond reasonable doubt 

The learned prosecutors prayed for contempt proceedings to be issued against opposite party nos 1, 2 and 3 for biased, false, male fide article, and for scandalising the judges of the tribunal

On perusal of the application, and considering substance of the arguments of the learned prosecutors, we are of the view that there are sufficient grounds to draw up contempt proceedings against [each of the three parties]. 

Allegations in proposed contempt proceedings are: 

1. The opposite party has made five illegal contentions about the trial process of Ghulam Azam in an illegal article on a sub-judice mater, knowing that there are two appeals pending before the appellate division. Thus they illegally interfered in the justice process of Bangladesh. 

2. Opposite parties neither made any attempt to find out about the trial or attended any of the tribunal sessions, but together made biased, scandalous report with intent to ... make the whole trial proceedings controversial. 

3. Opposite parties have unethically questioned the dignity of the judge on their website and have tarnished them in the esteem of people. 

A notice should be issued against them to give response within three weeks why contempt proceedings under section 11(4) of the 1973 Act should not be introduced against them.

Next date of proceedings is 30 September 2013

HRW contempt: How the media reported judge's speech, pre-Azam judgement

What did the chair of Tribunal 1 state in his introductory statement prior to reading out the summary judgment in the trial of Ghulam Azam on 15 July 2013?

This is relevant as one of the criticisms made by Human Rights Watch of the judgement of Ghulam Azam, was that in this speech, the judge had stated that due to the paucity of evidence provided by the prosecutors, the tribunal had to undertake its own 'investigation', something unknown to the defense and about which they could not respond. The relevant part of the HRW report is as follows:

In an extraordinary break with practice in Bangladesh, the judges in the Azam case conducted their own investigation into the case to make up for deficiencies in the case presented by the prosecution, calling into serious question the impartiality of the court. Defense counsel were unaware of this investigation, and were thus unable to comment and challenge the evidence obtained by the judges. This constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights to which Bangladesh is a party. 

During the oral presentation of the verdict in court on July 15, 2013, the presiding judge, AKM Fazle Kabir, referred to the paucity of evidence presented by the prosecution during the trial, saying “the prosecution did not provide us with much” and “the documents which the prosecution . . . submitted as evidence were not adequate.” 

Verdicts in ICT cases have usually been delivered within a month after final statements by each party. The Azam verdict was unusual as the judgment was delivered several months later because, as Justice Kabir explained in his oral statement, the judges decided to conduct their own investigation in order to strengthen the prosecution’s case. Justice Kabir noted that the prosecution had submitted mainly newspaper articles which were not reliable as they could often be wrong, and therefore the judges conducted their own research to get “reference books.” Although they reached a verdict of guilty on all counts, Justice Kabir went on to say that they “were still not too satisfied with the documents [they themselves] were able to collect,” all the while conceding that the case rests largely on documentary evidence. 

Bangladesh is a common law country and trials are conducted on an adversarial basis. The standard practice in such jurisdictions is that the judges reach verdicts on the basis of the evidence produced by the various parties to the case. According to practicing lawyers in Bangladesh, judges do not conduct their own investigations when they find that they are unable to reach a guilty verdict.

This raises two questions. First, what did Justice Kabir actually say? (i.e did he say what HRW states that he did?) Secondly, if HRW is correct, is this the criticism given by HRW appropriate?

This post is very limited in its purpose - just setting out extracts from the Bangladesh media which reported the introductory speech on 16 July, the day after the judgement.

There is no further comment in this post - the extracts speak for themselves. This is not comprehensive - but includes a total of 9 newspapers/online news portals.

If the issue of what was stated by Justice Kabir becomes a substantive issue, it may be possible to find out exactly what was stated in court since apparently all proceedings in the tribunal are recorded by the tribunal itself.

It should be noted that the prosecutors are seeking to convict HRW for contempt of court in relation to its criticisms of the Azam verdict, and have argued that HRW has misrepresented what was stated by Justice Kabir in court. (See a previous post assessing the contempt application).

English language media (in alphabetical order)

1. Bdnews24.com: "Prosecution blamed for delay'

The war crimes tribunal blamed inadequacy of prosecution documents behind the unusual three-month delay in giving Jamaat guru Ghulam Azam’s judgement since his trial ended on Apr 17. The other judgements have typically come within under a month of trial conclusion. Azam was sentenced to 90 years in prison for conspiracy, planning, incitement, complicity and murder during the 1971 Liberation War when he headed Jamaat-e-Islami. Tribunal chief, Justice A T M Fazle Kabir acknowledged the speculation and apprehension centring around the delay in delivering this significant judgement.“There have been criticisms in the media,” he said remarking that there may well be criticisms — as long as there were no allegations or accusations. 

The presiding judge of the International Crimes Tribunal-1 said that Ghulam Azam’s case was distinct from the others for two specific reasons. “There are no allegations that he was physically present at any crime scene. And secondly, there are no allegations that he actively directed the commission of war crimes.” The judge said that most of the evidence against Ghulam Azam was based on documents, essentially news reports. “It would have been better if the prosecution had submitted more scholastic material like books, research paper or journal articles.” 

Justice Kabir said that it was perhaps unwise to depend entirely on news reports since they were written immediately after the event without affording the journalist much time to think.“Books and journals, they are different. The authors get more time to reflect on the events and research the matter, which make them more authentic,” observed Justice Kabir.“But the prosecution did not really provide us with much, in a manner of speaking.” He also lamented about the inadequate reference material at the tribunal saying that there was just one full volume of the authoritative ‘Muktijuddher Dolilpotro’ for both the tribunals, by way of an example. 

The tribunal, he said, went out and collected relevant material on its own. “We needed to satisfy ourselves. It was also necessary for a better judgement.”“This took us a long time. That is why it took us three months to give the judgement,” Justice Kabir continued, “But we are still not too satisfied with the documents we were able to collect.” It took this long only to enrich the judgement, the presiding judge told a packed courtroom before he handed over to co-judge Justice Anwarul Haque who read the first part of the judgement.

2. The Daily Star: Judgement due to poor logistics

Many in the courtroom were surprised when the International Crimes Tribunal-1 chairman said the court had to share a 15-volume book on Liberation War documents with the other tribunal.
The tribunal yesterday expressed discontent over the lack of logistics support while explaining its delay in preparing the judgment in the Ghulam Azam case.
About the prosecution’s submission of supporting documents, Tribunal Chairman Justice ATM Fazle Kabir said, “Had they submitted more books, it would have been better for us.”
The tribunal could not even collect a satisfactory number of reference books for preparing the verdict, Justice Kabir said before passing judgment.
He said the government had allotted only a set of Swadhinata Juddher Dalilpatra for the two tribunals dealing with the war crimes cases.
The proceedings of the case against Azam were completed on April 17, but the tribunal took nearly three months to come up with the verdict.
In the meantime, several newspapers had run reports speculating over the delay in delivering the verdict.
The war crimes trial campaigners on several occasions had tried to bring the needs of logistics, including a library and a research cell, to the government’s notice.
In his 15-minute introductory speech yesterday, Justice Kabir said Ghulam Azam was a very familiar figure in Bangladesh, and it was an established fact that he was the ameer (chief) of East Pakistan Jamaat-e-Islami and a powerful leader of the Central Peace Committee.
About the case against him, he said, “It carries some special features.”
No charges were brought against him for direct involvement in crimes, the judge said. “Mainly, the charge of superior responsibility or command responsibility was brought against him, which is a recognised matter.”
Para-militia forces like the Peace Committee, Razakar, Al-Badr, Al-Shams were formed mainly with the members of the Jamaat-e-Islami, and these forces in association with the Pakistan army committed numerous crimes during the Liberation War, Justice Kabir said.
“Although he [Ghulam Azam] had control over the para-militia forces, he did not bar them or punish them, and that’s why he was held liable for these crimes and he has to take all responsibility for the forces,” he said.
As per Section 4(2) of the International Crimes (Tribunals) Act-1973, the chief has to take responsibility for his/her subordinates, he added.
The tribunal chairman also said Ghulam Azam’s case was different from all other cases pending before the court. In this case, documentary evidence, not oral evidence, was very important.
He said the prosecution had submitted documentary evidence, mainly newspapers, to prove the charges. “It would have been better if they [prosecution] had submitted more documents.”
He said reference books were preferable to newspaper reports, as the latter could often be wrong. “But we did not get such reference books.”
About the media reports and criticism over the delay in the delivery of the verdict, the judge said, “There may have been criticism but we have no complaint in this regard.”
“Personal and collective reasons caused the delay,” he added.
He said hundreds of books on the Liberation War were published in the last 42 years. “But we have not enough reference books in hand. We have tried to collect more books.”
“We have taken more time to enrich the judgment,” Justice Kabir said.
Under Section 19 of the International crimes (Tribunals) Act-1973, the tribunal shall not require proof of facts of common knowledge but shall take judicial notice, he said.
“However, we are going to deliver the judgment today on the basis of the evidence,” said Justice Kabir before beginning to read out the verdict.

3. New Age: Ghulam Azam handed down 90 years in prison

Justice ATM Fazle Kabir, before delivering the verdict, it had taken the tribunal about three months to collect reference books which caused the delay in the delivery of the verdict.

4. The Sun: Ghulam Azam jailed for 90 years

In the preamble to the verdict, presiding judge ATM Fazle Kabir said as there is no sufficient oral evidence in the case, the tribunal had to rely on the documentary evidence, mostly paper clippings.
“The tribunal itself collected some references to hand down the verdict in the befitting manner,” he added.
Justice Fazle Kabir said the lack of oral evidence caused delay in passing the judgment.

Bangla language paper (in alphabetical order, unofficial translations)

1. Ittefaq

Justice ATM Fazle Kabir delivered a speech before the judgment. He said, “The only accused of this case is Golam Azam. He is a well-known person. Especially, in 1971 he was very well-known. It’s been acknowledged that in 1971 he was the Ameer of Jamaat of the then East Pakistan. He was also an influential leader of the Peace Committee (Shanti Committee). In this case, the prosecution has brought 5 charges against him. There is some specialty in this case, because there is no charge against him where he was present at the crime spot or where the crime was committed with his order. Rather, the charges brought against him are of “Superior responsibility”.

He said, this has been acknowledged that, in 1971 he was the Ameer of Jamaat of the then East Pakistan. Back then, the Jamaat leaders formed paramilitary forces like Al Badar, Al Shams and Rajakar. These paramilitary forces assisted the Pakistani Army in killings, genocide, rape, loot and setting fire. Golam Azam had command over these forces. In spite of having command over them he didn’t stop them. He didn’t even take any punishment step against anyone for committing those crimes. According to section 4 (2) of International Crime (Tribunal) Act, 1973 the responsibility of these forces goes to Golam Azam. Four among the five charges brought against him is of Superior Responsibility.

He further said, according to the nature of this case, there is no need for oral evidence (witnesses). Documentary evidence is enough for this. The prosecution has shown some paper cutting of news papers from 1971 and 1972 and some books. However, some times the news in news paper might not be comprehensive due to time constraint. For this reason, books or research papers written on these incidents are much more acceptable. If the prosecution had submitted some more books, it would have been much helpful for the Tribunal. This is why, the Tribunal tried to collect few more book through judicial notice within its jurisdiction. However, we didn’t get anything remarkably satisfactory. It took some time. However, the Tribunal has prepared the judgment on the basis on the given evidence.

2. Kaler Kontho

Kabir said, “It took three months for us to declare the judgment. The media has criticized us regarding this. We have noticed that.” He said, “There were some holistic problems regarding the judgment. This is an exceptional case. In other cases the accused are charged with direct involvement in crime. In this case, Golam Azam is not accused of direct involvement in the crime. The charge against him is of “Superior Responsibility”. Some news paper cuttings of 1971, 1972 and 1973 have been submitted as document in support of the charge against him. Some books have been submitted which were written much later. The submitted documents are not enough. It would have been good if some more documents were submitted. He further said, “There are two Tribunals for crime against humanity but only one set of the documents related to liberation has been provided. There is no other reference copy beside this. It took time to collect reference and other documents. He said, “The prosecution could not satisfactorily submit everything. Neither could we collect those."

3. Naya Diganta

At 10:45 am, after the court started its proceedings, Chairman Justice ATM Fazle Kabir delivered a speech on the judgment. He said, Professor Golam Azam is a well-known person. Especially, in 1971 he was very well-known. It’s been acknowledged that in 1971 he was the Ameer of Jamaat of the then East Pakistan. He was also an influential member of the Peace Committee (Shanti Committee).

He said, the prosecution has brought 5 charges against him. But there is no direct charge against him where he was present at the crime spot or where he has committed a crime. No such charge has been brought against him. No direct charge has been brought against him, unlike the other cases. In this perspective, this case is an exceptional case. The charges brought against him are of “Superior command responsibility”. Most of the members of paramilitary forces like Al Badar, Rajakar, Al Shams were from Jamaat-e-Islami. These paramilitary forces assisted the Pakistani Army in killings, genocide and rape. The charge against him is, he had command on these forces. Therefore, he cannot avoid the responsibility of these crimes. The responsibility of Al Badar, Al Shams and Rajakar falls on him.

The newspaper cuttings submitted by the prosecution reveals the facts about when, where and whom he met in 1971, where he delivered speech and where he asked for assistance from Pakistan.

ATM Fazle Kabir said, generally the newspapers publish the news right after the incident. Therefore, news paper report can be wrong. But, books are written much later and the writer gets the opportunity to scrutinize the information. But, in this case we did not get any book as reference. We only have a copy of Documents of Liberation war. We could not collect the books on liberation war written over last 42 years. It caused delay for this judgment. We could not collect it satisfactorily.

4. Prothom Alo

Justice ATM Fazle Kabir further said, “This is the main difference of this case with the other cases of this Tribunal. In other cases there is direct allegation but in this case there isn’t any. All the evidences of this case are documentary. News cutting from various newspapers shows that, Golam Azam delivered speech, participated in discussion, asked assistance through speech and consultation. However, I think that it would have been very helpful if some more documents were submitted. No remarkable book has been submitted as reference book.

Justice ATM Fazle Kabir said, many people have criticized us for taking three months to publish the judgment. They have their rights to criticize, but we have some collective problems. We have no other law books in the Tribunal except one set of Documents related to liberation and both the Tribunals have to share that. Hundreds of books on liberation have been written over the last 40 years but the prosecution did not submit those to us, so we did not get it. We tried to enrich the judgment by collecting references from various sources. But we could not be satisfied even after that. This is why, there was delay in publishing the judgment. He said, ‘the full judgment is of 242 pages but a brief judgment of 75 pages will be read out loud in the hearing."

5. Samakal

Before that, the Chairman of the Tribunal gave a 10 minute introductory speech. He said, Golam Azam’s case is an exceptional one. Though Golam Azam was not present at the scene when the crime was committed, he has been charged as the main planner of Bengali genocide.

'Mendacious hyperbole': Comment on prosecution contempt application against Human Rights Watch

The arguments put forward by the Tribunal's prosecution lawyers on 22 August seeking a contempt notice against Human Rights Watch, contained  a level of mendacious hyperbole that represents a particular low in prosecutorial standards at this Tribunal.

It is difficult to understand, why the prosecutors might want to make spurious claims which are so demonstrably untrue, or misrepresenting of the truth, when issues of fact are so crucial to the integrity of current trial proceedings - and indeed the prosecution's reputation.

For most of the three hours three given over by the tribunal to hear this application, the prosecution on Thursday ignored the substantive criticisms made by HRW and instead concentrated its fire on traducing the reputation of HRW. It was so one sided, so full of inaccuracy and misrepresentation that it was shocking the prosecutors could get away with it in a court of law.

Human Rights Watch is a large organization, undertaking human rights investigations into governments and non-state bodies around the world (90 countries apparently), which brings to the notice of a global audience violations that governments, their supporters and others would rather remain hidden. Inevitably along the way it has picked up enemies and critics - and there will of course, as indeed there should be, those who simply have different views about the way the organization should undertake its work.

But the prosecution appears to have little  understanding of this. Its strategy - set out in both its written application and the oral arguments - was to take a few articles (a number of them in fact written by the same person) exaggerate their implications, fail to provide any context, and then mix it with a great deal of falsehood and misrepresentation. And 'Voila!' There you have a picture of an amoral unethical organization, doing the bidding of the powerful, without a modicum of competence.

That this is a wholly untrue representation of HRW with no basis in reality appears irrelevant to the prosecutors.

In fact Tapos, the main prosecutor putting forward these arguments in court, got pretty close to suggesting that HRW was in fact funded by the supporters of the accused. One should not be surprised of this accusation of course - since this is a common allegation thrown around in Bangladesh these days against anyone who says just about anything critical of the tribunal.

It is my view that contempt proceedings have been hugely overused by all parties in relation to this Tribunal, and that the prosecutors were very ill-advised to proceed with a contempt application against Human Rights Watch. Nonetheless, having decided to file an application (which is their right), instead of doing everything it could to discredit a highly and globally respected human rights organization, they should simply have focused on the substantive reasons why it was their view that HRW's statement were contemptuous.

Perhaps it was because the prosecutors thought that their arguments were not that strong on the substantive issues that they tried to traduce HRW's reputation?

Here below are details of the false and/or misleading information provided by the prosecution to the tribunal. Separate posts will consider the arguments relating to the substantive issues relating to the contempt application.

DIRECT FALSEHOODS

Falshood 1: "Human Rights Watch does not publish details of its donors."
The prosecution made a categorical statement that HRW does 'not disclose its donors'. This was not said once, but was repeated a number of times. This claim was then combined with an allegation that HRW simply produces the information that is in the interest of these 'unknown' donors.

In fact HRW does publish details of all donors who provide it over $5,000**. This is available in the hard copy of the organisation's annual report.

Falsehood 2: "HRW has not published any report on Saudia Arabia"
The prosecution alleged that HRW received money 'from Saudia Arabia' (though it was not made clear from whom, it was implied it was from the government) and that as a direct result of this funding, HRW does not produce any reports on the violations in the country.

It is a direct falsehood to suggest that HRW has failed to write criticisms of the human rights situation in Saudia Arabia. In fact since just the beginning of this year, it has issued at least 18 press releases/reports. So the allegation that as a result of any money it may have received from Saudia Arabian citizens influenced its reporting is bogus.

And on the issue of receiving money from 'Saudi Arabia'. If any money was received it was from 'citizens'. Are the prosecutors suggesting that HRW should not receive financial support from people of particular ethnicities or particular nationalities - simply because their governments are abusive? For those who want to understand the full context concerning two meetings that HRW did hold in Saudia Arabia, it may be best to read this, a context which was not provided by the prosecutors.

Falsehood 3: "HRW publicly supports CIA renditions to other countries"
This was a statement made by the prosecutor, Tapos with no caveats or context. The prosecution claim refers back to an article in the Los Angeles Times published in 2009, where a HRW official was quoted as saying: '"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."' It is not clear exactly what this means, what are the limited circumstances in which HRW might support rendition. Perhaps significantly, there is no other HRW statement repeating this. It seems to be a singular reference.

What however is clear is that HRW has in fact been very critical of the CIA renditions that have taken place - as can be seen by looking at this link which itemises their various reports and press releases on the subject. These were all ignored by the prosecutors.

So it was false to suggest that HRW supports or supported the kinds of CIA renditions that the tribunal would have understood the prosecutor to have been referring.

MISREPRESENTATIONS/ODDITIES IN CRITICISM OF HRW 

1. Prosecutors' 'Pro-Isreali' position

In a country that is amongst the very few that does not even recognise the existence of Israel, it was to say the least fascinating to see the Bangladesh government appointed prosecutors support those organisations and individuals critical of HRW reports setting out human rights violations committed by the Israeli state and security forces - and going on to criticise HRW for bias against Israel!

For the prosecutors to quote approvingly 'pro-Israeli' NGO's (for example the organisation, NGO Monitor, in particular) who criticise HRW for their reports on Israel is failing to appreciate the deep divisions that exist in the politics of the middle East. The prosecutors seem to have misunderstood that it is only those who provide pretty much unconditional support to the Israeli state and its military actions against the palestinians who seem to be party to these criticisms against HRW.

The prosecutors made great play of the criticism of Robert Bernstein, a founder of HRW who alse acted as the organisation's president for many years. However, they failed to provide a context for his criticism - which was again about HRW's work on Israel. Bernstein simply did not think HRW should consider human rights violations that may have been committed by Israel as it is an 'open society'. It is his view that HRW should only focus on closed societies. As HRW stated in response to this "Any credible human rights organization must apply the same human rights standards to all countries." Do the prosecutors disagree with that?

They also made a criticism of HRW recieving a very large grant from the Open Society foundation - with the prosecutor stating that this was 'temptation of the wealthy'. Again the criticism about this grant only comes from 'pro-Israeli' lobbyists - the article which the prosecutors referred to was written by the person who runs NGO monitor, who consider George Soros (the man who ultimately runs Open Society) to be against Israel.

However, there appears to be absolutely no link between the grant and Israel - and it appears unclear what was the nature of criticism which the prosecutors trying to make. HRW's press release about this states: "The grant is intended to support the internationalization of Human Rights Watch, enabling it to staff advocacy offices in key regional capitals around the world and to deepen its research presence on countries of concern. Human Rights Watch plans especially to increase its capacity to influence emerging powers in the global South to push a pro-human rights agenda."

2. Honduras
The prosecutors referred to 'criticism' made by academics concerning HRW's work on Honduras. However a reading of the statement given by the academics shows that the statement is less criticism and more an urging of HRW to publish more statements criticising the overthrow of the government in Honduras. The letter acknowledged that HRW had been 'quick to condemn the illegal coup d'etat of June 28 and the human rights violations that occurred over the following week, which helped shine the spotlight of international media on these abuses ...'. 

The tribunal prosecutors moreover failed to tell the court that four days later HRW published a press release referring to a report issued by the Inter American Commission on Human Rights. The press release stated:  

"The finding by the Inter-American Commission on Human Rights of widespread abuses in Honduras should compel the international community to take firm action, such as targeted sanctions, to resolve the country's ongoing crisis, Human Rights Watch said today.

The commission released a report on August 21, 2009, showing a pattern of serious violations under the de facto government, including excessive use of force, arbitrary detention, sexual violence, and attacks on the media, as well as several confirmed deaths and possible "disappearances." The commission also documented an absence of effective legal protections from abuse. 

"Given the ongoing abuses documented by the commission and the lack of effective legal protection, it is urgent that the international community exert concerted and effective pressure to restore democratic government in Honduras," said José Miguel Vivanco, Americas director at Human Rights Watch.

It is rather difficult to understand what the prosecutors criticism was in relation to HRW's work on Honduras. Simply that HRW did not issue a press release quickly enough?

3. Ethiopia
The prosecutors also referred to criticisms of the Ethiopian government made in 2009 and referred in this connection to an Economist article titled, 'The government says Human Rights Watch has got it wrong. Really?'. Perhaps the prosecutors should have realised, simply from the title of the article itself  that the Economist was in fact supporting the HRW allegations. As the article states:

"The Ethiopian investigation did not, however, examine all of Human Rights Watch's accusations. Some executions listed by the group go unchallenged or are blamed unconvincingly on the guerrillas. The report skims over the Ogaden's humanitarian emergency, which Médecins Sans Frontières, a French-based charity, lists as one of the world's ten worst. The Ethiopian report flatly denies that the government blockaded separatist strongholds during a famine, thus starving civilians. The Ethiopians also lambast Human Rights Watch for not visiting the Ogaden, knowing that it was they who blocked the visit. They claim that the Ogaden has been open to anyone, yet most independent journalists have been banned from travelling there freely. Several aid organisations, including the International Committee of the Red Cross, have been kicked out. Aid workers there speak only anonymously, for fear of expulsion."

Again, it is therefore not entirely clear what is the criticism against HRW here - unless it is to use comments made by any oppressive government as ammunition against the human rights organization.

4. "Employing Nazi supporters"
The prosecutor claimed in court that HRW employed 'Nazi supporters in war crimes investigations'. (This claim could perhaps have been put within the category of falsehoods, rather than misrepresentations - but there is some ambiguity here so it perhaps is best to discuss the claim here.)

The prosecution was referring to Marc Galasco, who was a collector of Nazi and US war memorabilia. He had worked at HRW since 2003 before the controversy erupted in 2009 about his interest in these memorabilia. Although there was no evidence that he had any nazi sympathies or was anti-semetic, he was accused of being so. He was initially defended strongly by HRW, but was shortly after suspended by the organisation pending an investigation, and he resigned in 2010. Interestingly, since leaving HRW, Garlasco served as senior civilian protection officer for United Nations Assistance Mission in Afghanistan (UNAMA), heading the UN's Protection of Civilians office and In early 2012, was the U.N. senior military advisor for the Human Rights Council's (HRC) Independent Commission of Inquiry on Libya, where he investigated civilian casualties. No criticisms seem to have been made about Galasco since joining the UN. A summary of the claims made by different sides of this argument can be found here.

At the very least the prosecutions claims that HRW was employing 'Nazi supporters in war crimes investigation' is very misleading.

5. "HRW appointed a known terrorist on its advisory board"

This is a highly disputed assertion, and if the prosecutors were going to raise this point, they should clearly have explained the nature of the uncertainty. Prosecutors were apparently referring to the appointment of Shawan Jabrain to its middle-eastern advisory board. Jabrain is the General Director of Al Huq, a highly respected palestinian human rights organization based in Ramallah. He has worked there since 1987, and states that he has not been involved with Palestinian Front for the Liberation of Palestine since the mid-1980s. The Israeli security agencies do not beleive this and as a result he has been subject to a travel ban. To suggest that Jabrain is a 'known terrorist' - and imply that at the time he was appointed by HRW onto its advisory board he was an 'active terrorist' misrepresents the reality. It is notable that Amnesty International supported Human Rights Watch in calling for an end of the Israeli government's travel ban on him. It is rather suprising that the tribunal prosecutor would seek to rely on a judgement resulting from secret hearings of an Israeli court (see above about prosecutors and Israel). 

6. Conference paper by Paula Casaca, Executive Director, South Asia Democratic Forum
A long extract of a paper criticizing Human Rights Watch, which was submitted at a conference organized just last month, was read out by Tureen Afroz, a prosecutor - and given a great deal of authority by her in their attacks against HRW (See end section here).

There are however so many inaccurate assertions, confusing and misleading comments in the extract read out by Tureen - that it is unclear why she would seek to rely on it.

- Casaca said that HRW does 'not disclose the sources of its funding'. An inaccurate statement (see above)
- Casaca appears to think that if you support the end of impunity (which he acknowledged HRW said that it did), you can NOT at the same time criticise the process which has been established to end that impunity. He presumably believes that however unfair the system established to end impunity, it cannot be criticised. But clearly it is entirely consistent for HRW toboth support the principle of ending impunity in relation to 1971 crimes, whilst criticising aspects of the law established to carry this process out in order to ensure that the process of dealing with impunity is fair.
- Casaca claims that the only reason HRW gives for raising a concern about the role of 'politics' in the trial is a comment form the 'leader of the main opposition party, the BNP'. He then goes onto say: "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 however have nowhere quoted the BNP leader to justify its view that 'the trials may not meet international fair trial standards and may be subject to political influence." It is unclear what Casaca is referring to when he makes this point
- Casaca criticises HRW for using the word 'atrocities' rather than the word 'genocide' in the title of one of its 2009 press releases. Casaca appears not to understand that the term 'genocide' is a legal term and that HRW may well at the time of writing the press release not wanted to pre-judge the issue.
- Casaca criticises HRW for failing to show the 'supposed contradictions of the Genocide definition used by Bangladesh and international law'. However, HRW's statements sets out those parts of the 1971 Act which are contradictory.
- Casaca then makes some a rather incomprehensible claim that HRW is behind an  “India/Bangladeshi conspiracy fabricating proofs against good Muslim leaders” - which is of course faintly ridiculous. A footnote in the article seems to suggest that HRW's press releases relating to the abduction of the Sukhranjan Bali (which Bali has now asserted to be true) and his presence in India, is part of a 'sectarian' agenda

----------
** An earlier version of this post stated that only donations above $25,000 were in the annual report. In fact, it is all donations received over $5,000 as now stated.

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.

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.