22 August 2013: ICT-1 Daily Summary – Abdus Sobhan Pre Trial Proceedings, Contempt Proceedings against Human Rights Watch

Today the Tribunal heard matters in the following cases:

  1. Pre-trial Proceedings against Abdus Sobhan
  2. Contempt Proceedings against Human Rights Watch

On 19 August 2013, Prosecution in the case against Abdus Sobhan filed an application requesting permission to interrogate the suspect in the safe home under Rule 16(1) of the Rules of Procedure. The Defense submitted a written objection against the application. Today the Tribunal heard arguments from both sides regarding the application. The Prosecution submitted that the investigation is in its final stage but asserted that for proper and effective investigation the Investigation Officer is required to interrogate the accused. The Prosecution further argued that for total verification, interrogation in the safe house is necessary.

The Defense countered that Rule 16(1) of the Rules of Procedure states that if it is necessary the Tribunal may pass an order for such custody if, upon consideration of facts and circumstances of the case, it is of the opinion that such an order is indispensable. The Defense argued that the Prosecution had failed to provide any reason why interrogation of the suspect in the custody of the Investigation Officer, as opposed to in the jail or jail gate, was necessary. Additionally the Prosecution’s application is not supported by any documents. The Defense stated that the application has no legal or factual basis. The accused is 85 years old and this type of application is meant to harass him.

After hearing both sides the Tribunal passed an order permitting the Investigation Officer to interrogate the suspect in custody for one day only. They instructed the Investigation Agency not to cause any physical or mental torture during the interrogation. The Tribunal also instructed the Prosecution and Investigation Agency to allow a Defense counsel to be present in the adjacent room during the interrogation, and to permit the suspect to meet with the counsel in the beginning, mid-point, and end of the interrogation. Additionally the Tribunal instructed the parties that a doctor should be allowed to meet with the accused if and when necessary.

Contempt Proceedings against Human Rights Watch
Today the Prosecution also submitted a petition requesting the Tribunal issue an order of contempt under section 11(4) of the ICT Act 1973, read with Rule 45 of the Rules of Procedure, against Human Rights Watch Board of Directors; Executive Director of Asia Division Brad Adams; and Associate of Asia Division Storm Tiv.

The Prosecution’s petition came in wake of the publication of an online article by Human Rights Watch addressing the 15 July 2013 verdict in the Gholam Azam case in which the Accused was found guilty and sentenced to 90 years of imprisonment. The Prosecution argued that the article, titled “Bangladesh: Azam Conviction Based on Flawed Proceedings; Analysis Outlines how Fair Trial, Rights of Accused Seriously Compromised,” inappropriately commented on a a case that is currently under consideration by the Appellate Division of the Supreme Court of Bangladesh. They stated that the article is biased and based on malafide intent, and that it unethically comments on the trial proceedings of the Gholam Azam case in Tribunal 1. According to the Prosecution the article alleged that (a) the Tribunal improperly conducted an investigation on behalf of the Prosecution due to the weakness of evidence against the Accused; (b) the Prosecution and Judges demonstrated bias against the accused and colluded to achieve a guilty verdict; (c) The Tribunal failed to take steps to protect defense witnesses in the Gholam Azam case; (d) there were inappropriate changes in the judicial panel during trial of Gholam Azam and; (e) there was insufficient evidence to establish the guilt of the Accused beyond a reasonable doubt. The Prosecution argued that their petition is based on allegations (a) and (b). They additionally stated that allegation (e), regarding the sufficiency of evidence, is a sub judice matter currently being considered by the Appellate Division of the Supreme Court. They stated however that allegations (c) and (d) are of no relevance to the petitioner (aka the Prosecution), though they did not explain the reasoning for raising these points.

The Prosecution submitted that the statements made by Human Rights alleging that the judges conducted an improper investigation and the existence of bias and collusion between the Prosecution and the judges are biased, baseless, utterly false and fabricated, ill motivated and made in bad faith. They alleged that such statements were made only to scandalize the Tribunal and to undermine the confidence of the people in the integrity of the Tribunal and its process. The Prosecution submitted that the Tribunal has jurisdiction over this matter and the parties involved and asserted that under section 11(4) of the ICT Act the Tribunal is empowered to punish ‘any person,’ including both natural and legal persons, whether living in Bangladesh or abroad. By publishing the article on its website, Human Rights Watch  scandalized the Tribunal and ‘tended’ to bring this Tribunal into hatred or contempt. Therefore this action brings Human Rights Watch into the contempt of the Tribunal.

The Prosecution then sought to attack Human Rights Watch’s reputation. They asserted that Human Rights Watch is a US based international human rights organization which has been in operation for the last 30 years and has been vehemently criticized worldwide for its ill-motivated activities, poor research, inaccuracy, bias in its selection of issues, ideological bias, unethical fundraising policies, bisn for or against particular nations, appointment of Nazi policy supporter Marc Garlasco as an investigator reporting on war crimes and crimes against humanity, appointment of terrorists such as Shawan Jabrain to its Advisory Board, and its support of the CIA’s illegal extraordinary rendition of suspected anti-US terrorists. The Prosecution submitted that Human Rights Watch has also been called out for its unethical and ill-motivated activities by a wide number of reports, research publications, open letters of scholars and comments by founder and former chairman of Human Rights Watch, Robert L Bernstein, a founder and former chairman of Human Rights Watch.

Regarding the allegation that the judges of Tribunal 1 improperly conducted an investigation on behalf of the Prosecution in the Gholam Azam case, the Prosecution argued that before reading out its judgment the Tribunal judges made comments about reference materials, not about conducting an investigation. They argued that there is absolutely no base for bringing such a scandalizing allegation against the Tribunal. They claimed the judgment of Ghulam Azam’s case does not at all endorse any such investigation being done by this Tribunal. The Prosecution submitted that such an allegation is baseless, a complete distortion of the facts, ill-motivated and unreliable. Such statements were made not in good faith and are tantamount to contempt of this Tribunal.

Regarding allegation (b) that there was collusion and bias between the Prosecutors and judges in the Gholam Azam case, the Prosecution denied that there was ever any unholy or discrete association between the Tribunal and the Prosecution. Again they alleged that such statements were made merely to scandalize this Tribunal and its process, were made not in bad faith, and are tantamount to contempt of the Tribunal. The Prosecution alleged that the only reference made by Human Rights Watch to its supposed findings of collusion and bias between the prosecutors and judges in the Gholam Azam case was an alleged skype communication between a member of the bench and his acquaintance which was made on a very personal level. The Prosecution argued that no enquiry, whether legal, social or technical was ever made to determine the authenticity of the alleged skype communications and as such, the existence, let alone content, of the skype communication cannot be relied upon to allege collusion and bias between the Prosecutors and judges. They concluded that the Tribunal has already passed an order regarding the alleged skype conversation and the review of that order has been rejected, therefore there is no further scope to raise questions regarding the skype conversation.

The Prosecution argued that Human Rights Watch’s allegations showed a lack of ‘good faith’ as the article unnecessarily questioned the image, standing and reputation of this Tribunal. Furthermore the allegations are false, as the Tribunal never carried out an independent investigation, research, or inquiry into the case. Human Rights Watch’s statements are inaccurate and do not rely upon any reliable authority or any authority at all. The Prosecution argued that no member or representative of Human Rights Watch has ever attended or observed a single trial of the Tribunal. Additionally the scandalous report was made when the appeal of the Gholam Azam case is pending before the Appellate Division of the Supreme Court of Bangladesh. The Prosecution argued that Human Rights Watch has a chronic habit of publishing reports relying upon poor research and inaccurate facts; exercising selective and ideological bias; following unethical, immoral and undisclosed financial policies; depending on undisclosed donors and following their agenda; failing to follow ethical standards in its recruitment policies; illegally intervening in the judicial process of the sovereign country; and trying to assassinate the image of ICT trial process and the judicial system of Bangladesh. They alleged that Human Rights Watch has wrongfully exercised its 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 additionally violated all norms of journalistic morality as expected under the international law. Using the guise of being a human rights organization, the Prosecution argued that Human Rights Watch cannot become a partisan to a human rights issue simply because their undisclosed donors demand it. The Prosecution submitted Human Rights Watch’s statements do not only attract the provisions of section 11(4) of the ICT Act but also the rules and practices of the international law.

The Prosecution requested that the Tribunal (i) issue a contempt notice demanding explanation for why contempt proceedings should not be initiated against Human Rights Watch under section 11(4) of the ICT Act 1973 and Rule 45 of the Rules of Procedure; (ii) that upon hearing arguments, convict the parties responsible for publishing the article; (iii) stay further display, publication, circulation or use of the scandalous article in any form; (iv) upon conviction, sentence the named parties to imprisonment of one year and/or an adequate fine and notify the United States through the Ministry of Foreign Affairs to facilitate the execution of the sentence; and (v) issue any other order or direction that the Tribunal deems fit and proper in the interest of justice.