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

Human Rights Watch

August 30, 2013

By: David Bergman

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

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** 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.