Thursday, December 11, 2014

Index of analysis on contempt judgement against blog

Here is the index of articles analysing the recent Tribunal judgment dealing with contempt involving three articles on this blog.

Below the index, is a summary of the analysis

In good faith: articles, statements in support 
 Judgment Analysis

1. On a third party's right to initiate proceedings long after publication

2. On the 'settled history' of the 1971 war dead (first article)

3. On 'scurrilous' analysis, in absentia trials (second article)

4. On 'adjudicators or truth' and 'mantras', numbers of 1971 deaths (3rd article)

5. On 'unholy alliances' and 'mouthpieces', the tribunal's view of me
6. On alleged perversity, slander and the 1971 war
7. On 'swinish whites-skinned judges', “pigs”, and “judicial scumbags'

8. On attempt to censorship on 'settled history'
The full judgement can be accessed here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible,' so I make those comments in that context.

Below is a summary of the key points made in the analysis set out out in the 8 articles listed above

The judgment did not refer or engage with a number of our arguments made in court about why the case should not proceed. These arguments were:
- direct parties of the tribunal, including the head of the investigation agency and senior prosecutors, had been made aware of the articles immediately on publication, but did not take any action, and therefore it was inappropriate for a third party, years later to initiate action against the articles.
- A Delhi High court case (the only case in South Asia dealing with this point) held that the date of publication of text on the internet, is the date that the article was first published on the internet, and not the date when a person first accesses the article. So time started over two years ago for the first article, and over one year fro the other two articles.
- there is no legal precedent in Bangladesh or in any other common law jurisdiction for such proceedings involving alleged 'scandalization of a court' to take place a year/two years after publication of an article.
- that the International Crimes (Tribunal) Act 1973 does not permit third parties to make an application or initiate prosecutions, and in fact only permits the investigation agency/prosecutors to do so.

In relation to all three articles

The judgement did not find a single fact or legal point of analysis written in these articles to be inaccurate. It is very unusual for there to be a conviction for contempt, involving alleged 'scandalisation of the court', where no factual or legal inaccuracy is found by the court.

On the 1st and 3rd articles about 1971 numbers

The judgement states that it is "settled to the nation that 3 millions of people" died, but it does not set out any evidential or research support for that conclusion. And since the judgement does acknowledge that there is 'differing information' on the subject, it is not clear from the judgement how the court came to the conclusion that it can be a 'settled' historical matter. Moreover, the tribunal was dealing with a criminal case of contempt, and not making an assessment of what is and what is not a "settled matter" of history.

The judgement does not set out its grounds for claiming that these articles have fanned 'the flame of grave disgrace in the mind of the nation', 'has obviously caused severe hurt to the emotion of the nation', 'disgraces and demeans nation’s wishes and holy emotion', and 'has been gravely disrespectful to the nation'. It is unclear how the judges have assessed or read the sentiments of the nation in this way, and how someone/everyone reading the blog would feel these things.

On the first article about 1971 numbers 
Whilst the proceedings in this tribunal were on-going (in that the article was commenting on an indictment) and were technically 'sub judice', the Tribunal itself states in the judgement that a person 'is not debarred in initiating discussion on a matter which may be fairly regarded as a matter of public interest'.  Moreover, the matter that was being discussed had no relevance at all to the issues before the court. And case law clearly shows that commenting on sub judice matters is only a matter of concern if it 'substantially interfered' with the due course of justice.

In relation to the 3rd articles, on 1971 numbers

It is difficult to see how the particular wording in this article (and in particular the word "mantra" which the court focused on) can be described as 'obnoxious', 'scurrilous', 'extremely impolite', 'derogatory, unfounded' or that it suggests a 'malignant' attitude and mindset, was done 'malicious[ly]', done 'consciously to malign and scandalize' the Tribunals, was 'gravely contemptible', 'extremely disrespectful' and involved my 'vomit[ing] of ill-intent'

In relation to the second article about 'in absentia' proceedings

The judgement claims that I "question the validity of holding trial in absentia". However, that is not the case - the article only questions the Tribunal's reasoning about why in absentia trials in Bangladesh complies with international standards.

The judgement says that 'We always welcome post-verdict criticism' but then terms, without any clear basis, the mild criticism in this article (which had suggested that the judgment's explanation was 'misleading') as a "futile attempt intending to identify the ‘ignorance of the Tribunal’ by blatantly discarding its authority", "questions the authority and jurisdiction of the Tribunal" and "it clearly intended to lower down and demean Tribunal’s authority and ability, and "tends to shake the public confidence upon the judicial machinery."

Whatever view one has of the word 'misleading', it is difficult to see how it can be termed 'scurrilous' or 'scandalous', particularly when one of the dictionary definitions of the word, 'misleading' is simply 'inaccurate'.

Descriptions of me 

There is simply no evidence put before the Tribunal by the applicant, or set out in the judgement by the Tribunal, or indeed that exists at all, that support the Tribunal's claims that:
-  an "unholy organised domestic and international attempt to question the judicial process of the Tribunal" has been established and that I have simply endorsed such ‘organised’ ill and futile endeavor", or that
- I have "acted as a mere ‘mouthpiece’ of the quarters engaged in the act of organised undesirable campaign, by circulating unfair, unreasonable and scandalising ‘criticism’.
- that I am "lewd" (which means 'crude and offensive in a sexual way')

On my view on the 1971 war

There is no basis to the Tribunal's claims that the introduction of another article I wrote in 2012 (not subject to this contempt action, but referred to in the judgement) shows  that I am "distorting settled history" have a "perverse view" which reflect a "malicious intent" which has "demeaned the nation's pride" and was "unfounded, purposeful and prejudicial" and was "slanderous to the glorious history" of the war of Independence, and showed an "unholy and purposeful tendency and mind set to demean and malign not only the trial process in the Tribunal but also the ‘magnificent war of liberation" and has shown "patent disrespect to our ‘proclamation of independence."

It should be noted that in discussing this article published for the International Crimes Tribune, an independent journal, the judgement blames me for the title for which I had no responsibility and also, and seems to imply that the title refers to one thing when it refers to something else. In addition, its analysis misquotes the article .
The law of contempt

The Judgement refers to a single case where descriptive 'words' have been considered contempt of court. In this case the article quoted by the court described judges as “swinish whites-skinned judges”, “pigs”, and “judicial scumbags and evil remnants of the British Hong Kong government." There is no wording used in the three articles before this current Tribunal that come anywhere close to this kind of abuse. 
The Judgement does not refer at all to the legal cases - that we pointed out in our arguments before the court - which involved particular critical statements where the court held that there was no contempt of court. We had argued that if these criticisms were not considered contempt, then neither could the criticisms in these three articles.

So none of the following wording considered to be in contempt of court:
- 'blindness of judges';
- the 'unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts',
- 'Everyone, it seems, is out of step, except the courts';
- '[courts should remember that] silence is an option';
- 'We must teach [the judge] a lesson, in this country, and expose him for what he is';
- 'The [judge's] report is being used to destroy me';
- 'the Supreme Court [is] composed of the element from the elite class had their unconcealed sympathy for the haves';
- 'the court is as if a safe shelter for the corrupt of accused persons'; and
- 'the court who grants bail should be held responsible.';

If the publications and utterances referred to above are not considered in contempt, then the statements I made in the three articles which are much more restrained in character, cannot be regarded as in contempt.
Censorship on settled history
The judgement states that "Any one including the contemnor is thus obliged to keep the above observations made by our Apex court on 'settled history' in future." However, with respect, whatever the appellate division may or may not have said about the numbers of those who died in 1971 (without looking at the research on the matter) or indeed on any other aspect of the 1971 war - does not make it unquestionable. And the appellate division certainly did not make that assertion in its judgment. In addition article 39 (1) of the Bangladesh constitution guarantees, 'Freedom of thought and conscience' and does provide any reservation

Analysis of the contempt judgement 8: Censorship on settled history

This is eighth in a series of articles analyzing the Tribunal's contempt judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This article looks at the tribunal judgement's ruling that aspects of the country's history cannot be commented on and written about from what the court understands to be 'settled history'. (Please also see   what the tribunal said about 'settled history' and the 1971 death numbers, here.)

The judgement states as para 122 and 123 the following:
The Appellate Division in disposing of the criminal review petitions [in the Molla case] reiterated acknowledging this settled history as below:
"All the above incidents took place when the people of the country were fighting against the occupation army of Pakistan for liberation of the country."
In disposing of the above petitions, the Appellate Division further observed:
"These offences were perpetrated in Bangladesh following the onslaught of ‘Operation Search Light’ from the night following 25th March, 1971 to 16th December, 1971, by the Pakistani occupation army and their collaborators after the declaration of independence of the country by late Sheikh Mujibur Rahman. There were wide spread atrocities like killing of three million people, rape, arson and looting of unarmed civilians, forcing 10 million people to take shelter in the neighbouring country, India."

Analysis of the contempt judgement 7: 'Swinish whites-skinned judges', “Pigs”, and “judicial scumbags

This is seventh in a series of articles analyzing the Tribunal's contempt judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This article is concerned with a section of the judgement dealing with contempt law

1. The Judgement starts of by referring to a paper written in 2011 by ATH Smith for the New Zealand law commission, and states:
The rationale for an offence of scandalising the court derives from the need to uphold public confidence in the administration of justice. In many ways, this need is particularly acute in a democracy, where the power and legitimacy of the judicial branch of government derives from the willingness of the people to be subject to the rule of law. In consequence, the public must have faith in the judicial system.
However the Judgement does not refer to what Smith says a little later in the report where he suggests an abolition of the category of the offence relevant here, the 'scandalising the court', and where he makes the following comments:

Analysis of the contempt judgement 6: 'Perversity', 'slander' and the 1971 war

This is sixth in a series of articles analyzing the judgement  involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

In a section of the judgement entitled 'Tendency of the Contemner', the Tribunal states at para 116 that:
 'We further consider it relevant to take notice of an article written by David Bergman published in a foreign magazine in 2012, for the purpose of assessing his attitude towards the 'war of liberation ' in 1971
They then looked at one article, titled "ICT: can one-sided trials be fair?" published in International Justice Tribune, an Independent fortnightly magazine on international criminal justice.

The Tribunal referred to one particular section of this article which reads:
"The tribunal in Dhaka deals with events from March to December 1971, when the Pakistan military used force to try to prevent the Awami League, whose supporters were Bengalis living in East Pakistan (today’s Bangladesh), from coming to power after winning the 1970 elections. The war between the Pakistan army and Awami League supporters and others ended when the Indian army intervened on behalf of the Bengali freedom fighters."

Analysis of the contempt judgement 5: 'Unholy alliances' and 'mouthpieces'?

This is fifth in a series of articles analyzing the judgement  involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.'  So I make those comments in that context.

This particular post considers para 79 to 89 of the judgement, in which the Tribunal deals with criticism in the 'public interest' (as well as certain quotes contained in the conclusion)

After the Tribunal commented that criticism 'in the public interest' was permitted, the judgement goes onto say the following:
But since the inception of [the Tribunal] functioning, all quarters have been observing, with anguish the initiation of an unholy organised domestic and international attempt to question the judicial process of the Tribunal, a court of law of an independent country terming the Statute of 1973 flawed. Criticism that the contemnor David Bergman has made in his articles, in other words, has simply endorsed such ‘organised’ ill and futile endeavor and not in the ‘interest of public’. Such malicious attempt has not made any debarring situation for the nation to remain distanced from their urge of seeking justice, true. But it however might have intended to create mystification and extreme derogatory impression in the mind of public and the relief seekers. Thus, contemnor’s conduct does not go with the ‘public good’. We consider it an extraordinary situation which warrants
intervention from the court of law, the Tribunal. (para 83)
This is certainly one way at looking at the criticism of the Tribunal - suggesting that there is some kind of conspiracy involving an 'an unholy organised domestic and international attempt to question the judicial process of the Tribunal'. The judgement does not state who is part of that conspiracy, but perhaps the Tribunal is suggesting that it comprises - as well one assume Jamaat-e-Islami - those who have at some point written critical commentary about the Tribunal. This could of course include, Human Rights Watch, the Economist, the New York Times, Amnesty International, International Commission of Journalists, International Centre for Transitional Justice, the UK Bar Council Human Rights Committee, the UN Special Rapporteurs on Summary Execution and on Independence of Judges and Lawyers, and US Ambassador at Large, Stephen Rapp.

Analysis of the contempt judgement 4: The third article - 'mantras' and 'judicial conduct'

This is fourth in a series of articles analyzing the judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This particular post considers the comments relating to the third article which the Tribunal considered, entitled Azad Judgement Analysis 2 - Tribunal Assumptions which dealt with the numbers of those who died/killed in the 1971 war of independence.

It should be noted that in its judgement the Tribunal only considered the final of the three sections of this particular article presumably finding that there was no inappropriate criticism in the first two parts of the article, which in fact comprise the main part of the article. Below is the section of the article which the Tribunal comments on:
3. Numbers of dead
This issue is more of an aside .... and not really relevant to the judgement itself

The tribunal asserts that 'Some three million people were killed, nearly quarter million women were raped ... during the nine-month battle and struggle of Bangalee nation.' (para 3)

In doing so, it repeats what was stated in the first indictment passed by Tribunal 1 in relation to the Sayedee case.
There is however no legitimate evidence to support the contention that such a number died or were raped. The only population study that has attempted to assess the numbers of deaths during the 1971 suggest that there were about 500,000 deaths arising from the war, with a large proportion of these resulting from disease. The court did not hear any evidence on the issue of 'numbers'

This issue is discussed at some length here
The point about bringing this matter up is not to undermine the nature of the atrocities committed during the war, or to suggest that the war did not result in a very high level of losses. It is simply to point out that if the tribunal is supposed to be an adjudicator of truth, it would have been appropriate for it to have dealt with the issue of the number of dead in a more judicial manner - rather than referring to it like a mantra that has little or no factual basis.

Analysis of the contempt judgement 1: Right to initiate proceedings

This is first in a series of articles analyzing the judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This particular post considers arguments relating to locus standi - which means the right of the applicant to bring the action.

Thursday, December 4, 2014

Analysis of the contempt judgement 3: The second article - 'Shaking the confidence'

This is the third in a series of articles analyzing the judgement against me involving three articles in this blog. The first one can be seen here, and the full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This particular post considers the comments relating to the second article which the Tribunal considered, entitled Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy. Unlike the first article, this dealt with a completed judgement, that of Abul Kalam Azad. I would encourage you to read this to appreciate the analysis contained below

Analysis of the contempt judgement 2: First article, 1971 numbers

This is second in a series of articles analyzing the judgement  involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make those comments in that context.

This particular post considers the comments relating to the first article which the Tribunal considered, entitled Sayedee indictment - 1971 deaths, which dealt with the numbers of those who died/killed in the 1971 war of independence. I would encourage people to read or at least scan this article.

Wednesday, December 3, 2014

In good faith - articles, statements in support

During the course of the contempt proceedings involving three articles published on this blog, there have been a number of pieces published on the case which I have refrained from posting or providing links in order to avoid any claim of trying to interference with the proceedings.

Now that the proceedings are over, I am providing some links to them and would encourage people to read them.

In addition, there have been a number of statements given after publication of the judgement, which are set out below


1. 'A Man and History on Trial: The Case of David Bergman' by Larry Lifschultz

Lifschulz is famous in Bangladesh as the author of 'Bangladesh: the unfinished revolution' which inter alia investigates the murder of Sheikh Mujib in 1975. He has acted as an expert witness in the Bangladesh courts in relation to the killing in 1976 of Abu Taher, and has written on some of the most contentious parts of the country's history. He has pretty much an impeccable reputation. 

This article is particularly notable as he provides some new evidence on the issue of numbers.

2. 'The politics of contempt in Bangladesh' by Salil Triparthi

Triparthi is an Indian journalist and writer, who has just published a book on the Independence War of 1971, called The Colonel Who Would Not Repent: The Bangladesh War and its Unquiet Legacy

Ali is a physicist at the Perimeter Institute for Applied Physics and an editor of the Alal-o-Dulal blog

A shorter version of this article was also published in the Daily Star

Tuesday, December 2, 2014

Comment on Today's Contempt Judgment


So, today's judgement relating to three articles written on this blog was pretty much a full throated, no holds barred take-down.

There are quotes galore about my supposed ill-motivated intention - and the judgement comes close to suggesting that I was acting for 'some other party'. Those who do not like my writing about the Tribunal will certainly find lots of pejorative adjectives and adverbs and adverse descriptions of me to suit their taste.

For me, of course, the conclusions of the court are therefore hugely disappointing - and indeed I would say shocking, particularly due to my long standing journalistic work of many years, which has been fully in support of bringing to account those alleged to have committed international crimes during the country's 1971 independence War.

If there was a legal right to appeal this judgment I would do so. However, the International Crimes (Tribunal) Act 1973 does not allow this! Only convictions/acquittals for offenses relating to international crimes can result in an appeal; not convictions for contempt of court. Moreover, Article 47 A of the constitution further restricts any appeal against the legality of the proceedings at this Tribunal.

However apart from its impact upon me, the judgement is likely to make it increasingly difficult for journalists and other writers in Bangladesh to comment critically on any judicial proceedings and judgments, even when those proceedings are completed.

Monday, December 1, 2014

Contempt charges relating to this blog

To read about the contempt charges brought against articles on this blog, go here. The judgment is due to be given today

Monday, November 17, 2014

Nationalising international justice

Below is the text of a short article recently published in the International Justice Tribune. For those who do not know it, the IJT is an excellent bi-monthly magazine on international justice issues throughout the world. 

You can download the article from the magazine as a PDF, here. (The title given by the magazine by the way is not mine!)

Recent verdict stir up controversy over Bangladesh war crimes tribunal

David Bergman

A spate of rulings against leaders of Bangladesh biggest Islamist opposition party for atrocities during the war in 1971, shows the International Crimes Tribunals (ICT) forging ahead – despite continuing criticism from outside the country.

On Monday, Bangladesh’s Supreme court upheld the death penalty for Mohammed Kamaruzzman, one of the current leaders of Jamaat-e-Islami, convicted by the International Crimes Tribunal in May last year for genocide and torture. This decision comes hot on the heals of two other death sentences, handed out by the ICT last week.

Wednesday, November 12, 2014

Transcript of what US ambassador Rapp said

Two days ago the US Ambassador for Global Justice gave a conference call to a journalist from Prothom Alo newspaper and one from New Age (myself) who were asked to come to the American Centre

It is not clear why so few journalists were called, nor why the statement was not put on the US state department website.

Rapp however spoke for about 30 minutes, and the detail of what he said is interesting - whether one agrees with it or not.

Below is a transcript of the main part of the conference call. (There is some more, but the line was rather poor, and it will take time to transcribe, and this may not be possible at all.) For those interested to see what Rapp said last time he was in Dhaka in August 2013, see the transcript of that press conference here

On Monday, Rapp started by reading out the following statement over the phone:
‘The United States supports bringing to justice those who committed atrocities in the 1971 Bangladesh war of independence. In doing so, the ICT trials must be free, fair and transparent, and in accordance with international obligations that Bangladesh has agreed to uphold though its ratification of international agreements including the International Covenant on Civil and Political Rights.’  
‘Countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees. It is inevitable that scrutiny will be heightened when a death penalty is pronounced. Therefore judges, as well as authorities having powers of commutation, should exercise great caution before imposing and implementing a sentence of death.’  
As I said during my fifth visit to Bangladesh in August 2014, we have seen some progress but still believed that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until it is shown that these obligations have been met it is best not to proceed with executions given the irreversibility of a death sentence.’ 
He then allowed some questions to be asked

Saturday, November 8, 2014

Friday, November 7, 2014

Journalists reporting on the numbers of deaths in 1971

How should journalists report on the numbers of those who died in the 1971 war?

This question has again come to the fore
as has run an article in which Shahriar Kabir, a well known activist in support of war crimes trials, has criticized a news piece broadcast on Al Jazeera in their 'Inside Story' series, which stated that between:
'Historians estimate 300,000 to 500,000 were killed in the nine months by Pakistani military and local collaborators.'
Kabir is quoted as saying in response to this
“Any foreign or local media should use official statistics while handling a story as sensitive as this. Three million were martyred, says the government data. .... What is the source of the information they used instead of the official count? These types of information serve the purpose of those who were involved in the genocide.”
He adds that to say this is 'an offence' and 'There is law for distorting information in our country ... I will demand that measures be taken against Al Jazeera under that law.'

There are a number of important points to be said about this article. (Disclosure: I sometimes write for, and appear on Al Jazeera)

1. Attempts to silence people
Increasingly in Bangladesh there is a view that if you do not like what another person says or another person's opinion, then you seek or threaten legal action against that person, or take some other action to silence them.

Thursday, November 6, 2014

What was actually said on Al Jazeera

There has been some press comment, much of it misconceived, about an 'Inside Story' programme on Al Jazeera broadcast on 4 November, where I was interviewed along with Mofidul Huq (from the liberation war museum in Dhaka) and Toby Cadman (defence counsel, international lobbyist for the accused) about the International
                                                      Crimes Tribunals in Bangladesh.

The full TV programme can be seen here. However, I have extracted out the questions and answers involving me here in order to dispel any misrepresentation of what I had stated in the programme.

Q: (6.33 mins) Tony Cadman, there, saying that an urgent appeal is necessary. [David Bergman] what is your response about what has happened in court? And give us a sense of the feeling on street? We know that there are huge divisions over this issue.

A: It is a complex matter. First thing I think that one ought to be very aware is that these trials are popular within Bangladesh. I mean the opinion polls that have been done about them, show that the vast majority of people support the process of trials seeking the accountability for crimes committed in 1971. And although people do call the country divided, I don’t think it is really fair to say that. There has been a long standing demand from quite a large section of people in Bangladesh for these trials, and that demand has a lot of popularity through the country.

Q: Regardless of whether or not as Toby says the legal procedures have been flawed?

A: I think this actually is exactly the case. It is correct to say that from a fair trial prism,

Wednesday, November 5, 2014

Rolling Blog on Kamaruzzman execution

This is s rolling blog on the Kamaruzzman execution, which the government is now seeking to go ahead in a short number of days

You need to keep refreshing the page to see updates


This rolling blog is now finished. And further developments in relation to the execution of Kamaruzzman will be discussed on new pages

Monday, 10 November 2014

11.55 pm: Govt backs down on execution without full judgement
I missed, perhaps the most important news of the day. New Age published a report in the paper this morning which stated that the Attorney General gave a press conference on Sunday in which he said that the government was likely now to wait until the publication of the Appellate Division's full judgement in Kamaruzzman's case before executing him. A similar story was published in the Daily Star.

In the press conference, it appears he first acknowledged that if the government was going to follow the Jail Code, the prison could not take any action without a 'warrant of execution' and this would first require a full appellate court judgement

Secondly, that the government would have to wait for the appellate division's judgement on Molla's rejected application to review in order to find out whether Kamaruzzman could seek a review application of his appeal judgment.

So where does that leave us now.

First, this is a big U-turn by the government, and by the Attorney General. It was only a few days ago that it seemed that the execution was going to be any day. And the government/AG rhetoric left little doubt about their intentions.

Secondly, I would speculate that the main reason for this change of events, was the differences of opinion within the appellate division (nothing unusual about that) concerning the right approach about issuing a short order or not. The government, I imagine had hoped that the court would be willing to issue a short order, but at least one judge was perhaps not in favour of that approach.

Thirdly, whatever was the reason behind the government decision, it is a good one. To have executed Molla before he had a chance to even see the reasons why the court had dismissed the appeal would have been simply wrong, yet alone before giving him a chance to review the decision (when there remains a chance that he has a right to seek a review). It also will have the effect of diluting the international criticism about the execution.

Fourthly, there is the issue of when the appellate division judgement will be issued. In the Molla case the short order was issued in mid September, and the full judgement at the end of November - a period of about 2.5 months. In this case, the judgement does not need to be anywhere near as long since many of the legal issues will have been dealt with in the Molla judgement. So whilst it could take as long as 2.5 months, it it is more likely to take less. A mid-December execution, around victory day is still possible - though it will depend on what the appellate division rules in its decision on Molla's review application.

5.10 pm: BREAKING NEWS: US government calls for halt to Kamaruzzaman execution
In a move that I would gauge will be far from popular amongst many/most in Bangladesh, the United States has called for a halt to the execution of the Jamaat-e-Islami leader Kamaruzzaman. It did so through a statement given by its Ambassador-at-large for Global Criminal Justice, Stephen Rapp a couple of hours ago.

The key part of Rapp's statement, given in a conference call to myself (as a New Age reporter) and a reporter from the biggest newspaper in Bangladesh, Prothom Alo, is as follows:
'As I said during my fifth visit to Bangladesh in August 2013, we have seen some progress, but still believe that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until these obligations can be shown to have been met, it is best not to proceed with executions given the irreversibility of a death sentence.'
I have written a short article for New Age which includes further comments given by Ambassador Rapp, and will link to it when it comes up on the website. I will also provide further details about what he said later.

Sunday, 9 November 2014

1.30 pm: HRW calls for Halt of execution
Calling the international Crimes Tribunals, 'replete with fair trial concerns', Human rights watch has called for the execution of Kamaruzzaman to be halted. The full text is here.

It first calls on government to allow for a review of the full judgement:
"Kamaruzzaman and his counsel have yet to receive the full text of the final verdict, which is necessary for him to be able to lodge a petition for review of the decision within thirty days, a standard procedure in all death penalty cases. Government officials have indicated that the execution is possible before the full verdict is issued which goes against standard policy in death penalty cases."
It then refers to its opposition to the death penalty in all circumstances, but states that such a sentence
“is particularly problematic when proceedings do not meet fair trial standards and where the right to appeal against a death sentence by an independent court is not allowed.”
In relation to fair trial concerns, it states:
Human Rights Watch noted that trials before the ICT, including that of Kamaruzzaman, have been replete with fair trial concerns. In Kamaruzzaman’s case, defense evidence, including witnesses and documents, were arbitrarily limited. Inconsistent prior and subsequent statements of critical witnesses were rejected by the court, denying the defense a chance to challenge the credibility of prosecution witnesses. An application by the defence to recuse two judges for prior bias was summarily rejected.
This follows a disturbing precedent from other cases. In December 2013, Abdul Qader Mollah was hanged following hastily enacted retrospective legislation which is prohibited by international law. Another accused, Delwar Hossain Sayedee, was convicted in spite of credible allegations of the abduction by state forces of a key defence witness with the ICT refusing to order an independent investigation into the charge. Many of the trials have been marred by the evidence of intercepted communications between the prosecution and the judges which reveal prohibited contact. The ICT’s response on several occasions to those who raise objections about the trials has been to file contempt charges against them in an apparent attempt to silence criticism rather than answer substantively or indeed, to rectify any errors.

Delay in appellate division judgment creates uncertainty over right of review

This article was published on 4 November in New Age. See:
this page for what happens next for Kamaruzzman and
this page for the offence for which he was sentenced to death.

Delay in AD judgement creates uncertainty over review legality
David Bergman

The continuing delay in the publication of the appellate court’s December 2013 judgment rejecting Abdul Quader Molla’s last minute ‘appeal’ to overturn his death sentence has created uncertainty about whether those convicted by the International Crimes Tribunal can seek a review of an appellate court decision.
This has become significant in light of Monday’s decision by the court to uphold one of the death sentences imposed by the Tribunal against Jamaat leader Kamaruzzaman, and the intention of the defence lawyers to review this decision and September’s appellate court decision to uphold convictions against Delwar Hossain Sayedee.

Monday, November 3, 2014

Daily Star misfires on Jamaat lobbying article

The Daily Star has a story on its front page which fails in almost every way to meet the newspaper's normally high editorial standards.

The story is titled, '$25m helped, not that much' and claims that Mir Qasem Ali struck a $25 million deal with with a US lobby company, which it said was unlawful since there had been no registration of the contract as required by US law. The paper says that it has a copy of the contract, and the only person it quotes is an anoymous 'Washingon-based journalist' to say that the amount is 'huge' and that it was unlawful

You know something is wrong with an article as soon as you see a quote from an anonymous journalist in a context where there is absolutely no reason at all for the person to be anonymous. Indeed, it is not clear why a 'Washington journalist' was in any way appropriate person to speak on this issue. What expertise does any old Washington based jouranlist have? Surely a regulator, or a lawyer who deals with the law relating to lobbyists, would have been appropriate - and then there would be no reason for that person to be anonymous.

Also, of course there is the failure to get any comment from the Jamaat or the lobbying company alleged to have received $25 million.*

However, these are the least of the problems with the article.

Lobbying by Mir Quasem Ali, the New Age expose

This page should be read in conjunction with this one.

Here are the two articles published by New Age back in October 2011 on lobbying by Mir Quassem Ali (sentenced to death yesterday for two 1971 offences) and his brother in the United States
Jamaat leader hires US firm to lobbywar crimes trial (29 Oct, 2011)

David Bergman
A senior Bangladesh Jamaat-e-Islami leader, Mir Quasem Ali, along with his US-based brother Mir Masum Ali, in the past year spent $310,000 (Tk 24 million) hiring one of the top United States lobbying firms to try and influence the country’s politicians and government officials on the ‘Bangladeshi War Crimes Tribunal’ and issues relating to the ‘political opposition,’ according to documents lodged with the US congress.
In March 2010, the Awami League government set up the International Crimes Tribunal to prosecute people alleged to have committed war crimes during the 1971 war of independence.
Since its establishment, the tribunal has detained seven men, five of whom are leaders of the Bangladesh Jamaat-e-Islami.
Quasem Ali, a successful businessman, is a member of both Jamaat’s 15-member central executive committee and its working committee.

Kamaruzzaman - the Sohagpur mass killing

This is an extract from the International Crimes Tribunal judgment dealing with charge no 3 for which it had imposed a death penalty, a sentence that was upheld today by the appellate division.

Adjudication of Charge No. 3 [Sohagpur mass killing]
291. Summary Charge: During the period of War of Liberation, on 25.7.1971 in the early morning, accused Muhammad Kamaruzzaman being chief organiser of Al-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals advised your accomplices belonging to Al- Badar and Razaker Bahini who accompanied the Pak army in contemplating and taking steps towards commission of large scale massacre, to raid the village Sohagpur and accordingly they launched planned attack and murdered about 120 unarmed civilians including the 44 victims as named in the paragraph 8.7 of the Formal Charge and committed rape upon women of the said village and thereby Muhammad Kamaruzzaman has been charged for participating, substantially facilitating and contributing to the commission of offences of ‘murder as crime against humanity’ or in the alternative for ‘complicity to commit such crime’ as specified in section 3(2)(a)(h) of the Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.


292. Prosecution adduced and examined as many as 05 witnesses in order to substantiate this charge. Of them P.W.11, P.W.12 and P.W.13 are the victims of sex violence who have been examined in camera as prayed by the prosecution. P.W.2 Monwar Hossain @Mohan Munshi was a member of Al- Badar and at the relevant time he had been working as a guard of Al-Badar camp set up at Suren Saha’s house, Sherpur and he had opportunity to see and know the activities of accused Muhammad Kamaruzzaman who was the leader of the camp, as claimed. P.W.10 Md. Jalal Uddin [one of victims of the massacre] is the son of martyr Safir Uddin of crime village Sohagpur. He narrated the horrendous event of massacre.

Kamruzzaman death sentence upheld, what happens next

Md Kamaruzzaman, death penalty upheld
With the appellate division today upholding, by a majority decision, the death sentence on the Jamaat leader, Kamaruzzaman for charge no 3 (the death penalty for charge 4 was commuted to life imprisonment) what happens now?

First of all, court precedent suggests that nothing will happen on the basis of this 'short order'. The carrying out of the death sentence will have to wait until until the full written judgement is given, and this can be quite some time. In the case of Molla, the short order was given in September 2013, and the written judgement in late November, a few months later.

Secondly, the defence will seek a review of the decision (Tajul Mohammed, the defence lawyer has already said that). Since there has been no written decision on the application by the defence lawyers in relation to its application seeking a review of the Abdul Quader Molla appellate division decision, it remains unclear whether the court accepts the right of the defence lawyers to seek such a review.

However, even if the court does accept a review application, this may add an extra few days to the process, but is very very unlikely to stall it (see below)

Thirdly, since the position of the government (and it appears the court) is that the jail code does not apply to those convicted by the ICT, once the full written judgement is given, the process towards the carrying out of a death sentence, if that is what the government wants to happen, can be quite swift.

On the issue of the review of an appellate division decision, I am setting out below what I have earlier written in the context of Sayedee
Article 105 of the constitution sets out the power of the appellate division to review its judgment. This Article states:
The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it. 
Order 26 of the Appellate Division rules sets out the procedure for this.
1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)
2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed.The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.
3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.
5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
6. Except with the special leave of the Court, no application for review shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)
8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed. (emphasis added) 
The following should be noted about the 'review':
- there are very limited grounds that can allow a review of an appellate division decision to be successful: there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly. 
- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are therefore very uncommon. 
- The International Crimes Tribunal gave itself the power to review its decisions and although it has dealt with dozens and dozens of applications for review, I am not aware of a single decision that was fully overturned. 
In the Molla case, the defence argued that the accused had a right to review under article 105, but the attorney general argued that it did not - claiming that the limits of the an accused's right to appeal are set out in the International Crimes (Tribunal) Act 1973, due to Article 47(3) of the constitution which precludes a person accused of international crimes from seeking any constitutional remedy. In the Molla case, the appellate division did not clarify whether there was a right to review or not - dismissing the review application without passing a reasoned order.

Saturday, November 1, 2014

Support for the War Crimes Trials

The Daily Star editor Mahfuz Anam's recent article on the International Crimes Tribunal's recent judgment on Nizami, which is in strong support of the process, has criticised the idea that the  'country is divided' about the tribunals, arguing in fact they have widespread support
'An insidious campaign is now afoot claiming that our nation is divided on the war crimes trial. Such a view is without any substance and it is our duty to renounce it forcefully. ... [T]o the best of our knowledge, and based on opinions of the hundreds of thousands who read us and interact with us, we have absolutely no doubt that our nation is fully committed behind this trial and there is a great deal of support for holding people accountable for the crimes committed in 1971.'
How accurate is Anam in this analysis?

In 2013, a number of opinion polls were conducted which inter alia asked questions on the support for the tribunals (as well as for the Shah-bag protests), and whilst there are some nuances, they do clearly show that there was at least then vast support for the process - even though a majority of people at the same time thought they were not fair.

Wednesday, October 29, 2014

Nizami's conviction - the 'moral justice' or 'fair trial' prisms

Motiur Rahman Nizami was today sentenced to death for crimes he was alleged to have committed during the country's 1971 War of Independence.

He was charged with 16 offences, convicted of eight, and sentenced to death in relation to four.

Putting the issue of the death penalty aside for the purposes of this discussion, I would suggest that one's response to Nizami's conviction depends upon the prism through which one considers the trial.

If it is through the overall prism of moral justice, the conviction is almost certainly fair.

Motiur Rahman Nizami was the head of the Jamaat-e-Islami student wing during 1971, whose members directly collaborated with the Pakistan military, some of whom are notoriously assumed to have been involved in atrocities during the war. It is difficult to imagine that Nizami, in siding with the military, and due to the position that he held, was not involved in crimes against civilians during the war.

However, if one looked at the trial through the prism of fair trial standards, one would have a different perspective, since there are significant and well founded concerns about the process of the trial.

Saturday, October 11, 2014

Summary of legal argument on blog contempt charges

In February this year, a lawyer, who previously had no involvement with the International Crimes Tribunal filed an application with the court claiming that three articles in this blog - one written over two years earlier, on the number of deaths in the 1971 war and two others (here and here) written over a year earlier commenting on the judgment of the trial of Abul Kalam Azad - were in contempt of the International Crimes Tribunal.

An order was passed by the Tribunal seeking 'an explanation' about the criticism. In response, a written explanation was filed with the court, and on 31 March, an oral hearing took place. Following this hearing, on 17 April, the court passed an order which issuing contempt proceedings. In response to this, an 'affidavit in opposition' was filed setting out why these proceedings should not go any further, and no contempt had taken place. 

The judgement is now due on 1 December 2014 (having been adjourned from Monday, 13 October, 2014 as judges said that they had not completed writing their judgement)

Below is the skeleton argument that was filed in court, and formed the basis of arguments made on the last date of hearing as to why the articles in the blog were not in contempt of court.

The arguments can be divided into two parts. Those which argue that the proceedings themselves are unlawful (due to the delay in initiating proceedings, because they were initiated by a third party, lack of a right of appeal) and those which argue that, in any case, the articles fall well within the permissible limits of fair criticism.

To read more detail, you can see the full written affidavit, and you can also see the case law which was cited in court in support of the arguments.

Skeleton Argument
1. Lack of Maintainability 
• 1973 Act/rules not permit third party applications (i.e from a person who is not a prosecutor, investigator or accused) on any Tribunal matter, in particular not permit proceeding with private prosecution, and there is no history of either tribunal allowing third party to file, maintain, argue any application before it. Current application unprecedented.

Blog contempt case, response to court

Below is the 'affidavit in opposition' which was filed in court and which sets out  the main arguments why the contempt of court charges involving three articles in this blog are not sustainable. You can also download the whole document here.

To understand the background to this case, see here.

The arguments in the affidavit, which were supported in oral arguments, can be summarised as follows
1. That the proceedings are not 'maintainable' (i.e were procedurally unlawful), as they were not brought by a party to the tribunal (i.e an accused, a prosecutor, an investigator, or a judge) but by a person, 'a third party', who had no previous role in the tribunal. In no other proceedings before the tribunal has a third party been allowed to file an application, yet alone to initiate and prosecute proceedings - which is the situation here, and there is no procedure to allow it. Such third party proceedings before this tribunal are totally unprecedented. (See para 8 to 14
2. That the proceedings are an 'abuse of process' due to the unprecedented length of time between the publication of the articles and the date at which proceedings were initiated - a period of over two years in relation to one of the articles, and over one year in relation to the other two. In Bangladesh and in other common law countries, the practice is that proceedings for alleged contempt of court through 'scandalization' are initiated within days or weeks of the publication of the alleged contemptuous article - not years. (See paras 15 to 22)

Saturday, September 20, 2014

Sayedee - the blame game

Attorney General
There is much to say about the decision of the appellate division to commute two death sentences against Delwar Hossain Sayedee to terms of imprisonment – and over the coming days, this blog will attempt to say them

I was however struck by the front page article in yesterday’s Dhaka Tribune, titled ‘Blame game after Sayedee Verdict’ focused on the claimed inadequacies of the investigators and prosecutors.

Attorney General, Mahbubey Alam is quoted in the article as saying on a talk show, ‘If you knew what sort of prosecutors were appointed it would give you the creeps.’ Alam also referred to one lawyer who was appointed as a prosecutor even though he or she did not have any experience in dealing with criminal cases.

Claims about the inadequacies of investigators and prosecutors are of course not new (and it is certainly intriguing that Alam, as Attorney General, has apparently done nothing to rectify the situation), but it is very odd that he would seek to make such comments in the context of the appellate division upholding five charges against Sayedee.

Tuesday, September 16, 2014

Sayedee appeal judgment - rolling blog

This is a rolling post looking at the decision (due to be given on Wednesday morning, tomorrow) of Bangladesh's appellate division concerning the appeal by Delwar Hossain Sayedee against the judgement of the country's International Crimes Tribunal, given in February 2013, which sentenced him to death for offences involving crimes against humanity committed during the 1971 Independence War of Bangladesh.

You will need to refresh your page to see new posts



11.30 am: Sayedee' death sentence in two cases commuted, and reduced to imprisonment
The appellate division ruled the following
Charge 6   -  acquitted
Charge 7   -  sentenced to ten years imprisonment (previously no sentence)
Charge 8   -  one part acquitted (by majority), death sentence reduced to 12 years imprisonment
Charge 10 -  death sentence, reduced to life imprisonment
Charge 11 -  acquitted
Charge 14 -  acquitted
Charge 16 -  imprisonment for life (previously no sentence)
Charge 19 -  imprisonment for life (previously no sentence)

In summary:
- In relation the two charges where he had a death sentence, one was commuted to a life sentence and the other was commuted to 12 years imprisonment
- in three other charges, where he had received no sentence, he was acquitted
- in three other charges, where he had received no sentence he received in relation to two of them a life sentence, and in the other a sentence of ten years imprisonment

Tuesday, July 8, 2014


We were all set for the hearing at which my lawyer would put forward to the Tribunal our arguments in response to the allegation that I had committed contempt of court. I had delayed my trip to London by nearly two weeks just so that I would be present for this date.

As the judges entered the court room, one of the applicant's lawyers asked for an adjournment as the main lawyer on their side, Mizan Sayeed was ill. After some discussion, in which the tribunal showed its displeasure at seeking an adjournment, the court adjourned the matter to 21 August.

Sunday, July 6, 2014

Hearing on contempt proceedings

On Tuesday 8 July, a hearing at the International Crimes Tribunal will take place, concerning its previous order requiring me to 'show cause' why I should not be punished for contempt of court.

Last month, our written response to that 'show cause' notice was filed with the court, and Tuesday is the date set for the oral hearing. This written response, along with an account of the oral hearing, will be published on this blog later on Tuesday.

The background to this is as follows:
On 19 February 2014, a lawyer called Abul Kalam Azad, who is not a party to the tribunal and has had no previous involvement with it, filed an application with the tribunal claiming that three articles - one published two and a half years earlier and two published one year earlier - were in contempt to court. 
- A few days latter, the Tribunal in response passed an order seeking an explanation for the 'criticisms' contained in the articles. 
An explanation was filed with the tribunal and an oral hearing took place
- On 17 April, the tribunal passed an order stating that it was not satisfied with the explanation, and that it was of the 'view that there have been prima facie elements of contempt in the comments/criticism dated 11.11.2011 and 28.01.2013 made by the opposite party which warrants to draw contempt proceedings against him under section 11(4) of the ICT Act, 1973. Hence the contemnor is directed to show cause within 15 (fifteen) days from date as to why he shall not be punished for making derogatory comments towards the order ...' 
- The press statement issued subsequent to this order can be seen here 
- In May, a response to the show cause order was filed with the court (to be published on Tuesday)
- 8 July: oral hearing to take place at the tribunal

Wednesday, June 25, 2014

The truth behind Nizami's high blood pressure

There seems to be something in the nature of this tribunal process, such that the sudden postponement of the judgement against Motiur Rahman Nizami, the erstwhile leader of the Jamaat-e-Islami, on the grounds of his poor ill-health, is viewed by almost everyone as something other than simply a matter of his high blood pressure!

There are three theories set out in today's newspapers.

First, it is argued that the postponement is due to the arrival tonight of Sushma Swaraj, India's external affairs minister.

The argument here seems to be that the government did not want any distractions to this visit - whether  in the form of newspaper headlines, or possible violence resulting from the tribunal decision itself.

The problem with this argument is of course that (a) on Monday, when it was announced that Nizmai's judgement was to be given, her visit was very well known - so what changed in the subsequent 24 hours? (b) the Jamaat had not called a Hartal as it usually had done before verdicts, perhaps suggesting that it was not going to protest as it had in the past - so was there any real prospect of violence?; (c) before the postponement was made, some people were arguing that it was because of her visit that it was decided that the judgement should be given. 'A present to the Indians', as it was stated by someone. Can the visit be an argument both for the judgement and also for its postponement?

Of course, it is certainly possible that someone, at a late stage, suddenly thought better of it, and judged that the optics of the Indian foreign minister arriving just after a verdict, might backfire. Or perhaps, conceivably, the Indian government themselves suggested to the Bangladesh government that their minister's visit should not take place right after the judgement.

The second theory relates to the Narayanganj by-election, which is taking place on Thursday.

This does not really make that much sense. One can understand, perhaps, that the government might want the judgement to take place before the election - in order to fire up its political base  helping the Awami League to a victory. But how does it help the government's election prospect's to postpone it?

Of course, it is possible, with violence already predicted in the Narayanganj by-election, that the authorities feared that the judgement needed to be postponed so that any post-judgement protests did not mix in with the existing risk of the by-election violence. However, again this was a known factor at the time of announcing the judgement on Monday

The third theory is that the delay is linked in some way to on-going discussions between the government and the Jamaat-e-Islami. This is of course the big suspicion of war crimes tribunal campaigners who have always thought that the government was capable of coming to some back-room deal with the Jamaat for tactical political advantage. The big Awami League 'Play' is to get the Jamaat to split from its alliance with the BNP - and there is no greater lever in its hands than the trials to get that to happen.

I have no idea whether any talks are going on between these two parties - though I would suggest that if they are, they are not at a high level. But, whether discussions are going on or not, it seems unlikely that the judgment postponement has anything to do with this.

So, where does that leave us?

Is everyone just too willing to see some conspiracy, or political machinations, when none exists? Can high blood pressure in Bangladesh, ever just be high blood pressure? I would like to think so, though I am slightly inclined to think that the Indian minister's visit did have something to do with the need to postpone the judgement.

Friday, June 6, 2014

Bangla Tribune - Re-defining the meaning of 'Exclusive Investigation'

The Bangla Tribune - the Bangla language website of the English language newspaper, The Dhaka Tribune - must be running very short of stories to write about.

Yesterday, on the front page of its website, it published a long article, under the tag ‘Exclusive’ about how its ‘investigation’ uncovered the fact that the documentary, The War Crimes File, broadcast in 1995 on Channel Four TV in the UK, was directed by a person called Howard Bradburn. The English translation of this article is set out at the end of this post

The article of course redefines the word ‘exclusive’ to mean ‘the completely obvious’ and the word ‘investigation’ to mean, ‘reading the credits of a publicly accessible film’. One does have to wonder quite what this is all about, since anyone who cared to read the credits of the documentary would have known who was the director of the documentary,

I think the government can certainly feel rest assured that, with this kind of ‘exclusive investigation’, at least the Bangla Tribune will not be the source of any ground breaking journalism anytime soon!

The article was such an ‘exclusive investigation’ that the publishers did not consider it appropriate to give the name of the writer in the byline! Perhaps Faisal Abdullah - stand up, take a bow - decided at the last minute, out of sheer embarrassment and shame, not to give his byline. One can only imagine.

Friday, April 25, 2014

Tribunal's written order: 'Contempt proceedings commenced'

Below is a copy of the written order given by International Crimes Tribunal-2 on 17 April 2014.

On an application filed by the applicant intended to bring contempt proceedings against the opposite party Mr David Bergman under section 11(4) of the International Crimes (Tribunals) Act, 1973 for allegedly posting some derogatory comment disparaging the Tribunal upon criticizing its order and judgment in his personal blog namely bangladeshwarcrimes.blogspot dated 11.11.2011 and 28.01.2013 respectively – this Tribunal upon initial hearing, by its order dated 20.02.2014 directed the opposite party to explain his position fixing 06.03.2014 for submitting explanation. Eventually, the matter was taken up for hearing on 27.03.2014.

Thursday, April 17, 2014

Statement in response to Tribunal contempt decision

My statement in response to the International Crimes Tribunal decision today (17 April) to initiate contempt proceedings 
I am very disappointed by today's tribunal decision to initiate contempt proceedings against me relating to three articles I have written on my blog, Bangladesh War Crimes Tribunal
The blog contains information and analysis on the proceeding of the International Crimes Tribunal taking place in Bangladesh.
One of the articles in question was published on my blog in 2011, two and half years ago, and the other two were written in early 2013, over one year ago (here and here) - but proceedings are being initiated now. Why?

As we explained to the court, any criticisms of the tribunal contained in these articles were 'fair criticism' and permitted under Bangladesh law; they were accurate, referenced other published materials and legal decisions, and were made in sober and restrained language. (see here and here)

Wednesday, April 16, 2014

Further written response to contempt application

This is a rejoinder (to the reply of the applicant) which was filed earlier today with the International Crimes Tribunal in relation to the contempt application against three articles written in this blog.

This document below should be read along with,

(To read the background to all this, see here)

The document below refers to a written document which the applicant filed in court, and which is not currently available as a soft copy (but will be placed on this page as soon as it is).

I, David Bergman, son of Alan Bergman and Viorica Bergman, of 1, Elvaston Mews, London SW1 5HY, United Kingdom, currently residing at 7/C New Bailey Road, Dhaka-1000, by profession: journalist, by nationality: British, aged about 49, state as follows:

1. That I am the opposite party in the above Miscellaneous Case. I have been served with a copy of the reply filed by the applicant to the explanation dated 18.03.2014. I have gone through the contents of the said reply. I have been advised to file this rejoinder to the reply for the disposal of the application in the interests of justice.

2. That as stated therein, the explanation dated 18.03.2014 was not meant as a statement controverting the application filed by the applicant nor a reply to show cause, but rather an explanation to the Hon’ble Tribunal of the three blog posts in issue as ordered for its kind consideration. Hence, it is submitted that the explanation did not call for any reply from the applicant. Nonetheless, since the reply filed by the applicant forms part of the record and purports to controvert paragraph wise the statements made in the explanation, the opposite party has been advised that for good order, he ought to submit a rejoinder to the reply.

3. That the statements made in the reply which are not herein after expressly admitted shall be deemed to have been denied by the opposite party.

4. That the statements made in paragraph Nos. 1 to 4 are matters of record.

5. That the statements made in paragraph No. 5 are denied as being false and vague. The opposite party reiterates the statements made in paragraph No. 5 of his explanation; the opposite party again refers to the particulars of his background as stated in paragraph No. 8 of his reply in support of the fact that he is conscious of the nature of the international crimes and atrocities committed in 1971 and that he is on record as having supported the process of seeking accountability for such crimes. The opposite party would also respectfully point out that, in contrast, there is nothing on record to show the applicant as ever having sought such accountability. In addition, although the comments of the opposite party are described as “frivolous and exaggerated” and the criticism is described as “reckless”, the applicant has given no particulars as to why they are so.

6. That the statements made in paragraph No. 6 are denied as being false and vague. In particular, it is denied that the comments contained in the opposite party’s blogs are carefully calculated to undermine the authority of the Hon’ble Tribunal or obstruct and interfere with the due course of justice, or that they malign the dignity of the Judge of the Hon’ble Tribunal and make the trial process questionable. It is stated that the applicant has posted over 800 blog articles and posts describing and discussing various aspects of the proceedings before the Hon’ble Tribunal, of which the applicant has found only three, written over a year ago, to contain allegedly contemptuous remarks. It is reiterated that each of these three blog posts or articles discusses a specific aspect of the proceedings before the Hon’ble Tribunal in restrained and dispassionate language and upon reference to particular facts, and amount to permissible fair criticism. Merely alleging that such criticism is “reckless” or otherwise detrimental to the proceedings before the Hon’ble Tribunal without stating why this is so and without detailing any alleged inaccuracy in the criticism of the opposite party ought not to be allowed to sustain a charge of contempt.

7. That the statements made in paragraph Nos. 7 and 8 of the reply are false and hence denied. It is denied that that the opposite party has failed to exercise due care and attention or that the comments are reckless or that he has not acted in good faith. The opposite party has not stated that Hon’ble Tribunal has given a “pre-determined judgment”; if seen in its proper context, the blog post/articles in issue states that the placement of certain paragraphs in the judgment, where conclusive remarks about the accused are made before a discussion of the evidence, may give an appearance of pre-determination, suggesting that this should be avoided; it is submitted that this is fair criticism. The opposite party further denies that he made a “deliberate attempt to dispute a historical fact of common knowledge”, thereby inciting unnecessary and unwarranted debate over an issue by giving unsupported and contradictory data, and makes the process questionable. It is submitted that this is a gross a mischaracterisation of the blog article in issue, which appears to be the article referring to the number of dead in 1971; the opposite party reiterates his detailed explanation about the blog/article as contained in his explanation. It is also stated that the indictment order of Delwar Hossain Sayedee, which was the context in which the blog article was written, did not state that the Hon’ble Tribunal was taking judicial notice of any fact regarding the number of deaths; it is grossly unfair for the applicant to now falsely state that this was the case, and then castigate the opposite party for having committed contempt for allegedly disputing such fact. Indeed, the judgment of Abul Kalam Azad, which also refers to the figure of 3 million dead, did not mention that judicial notice was being taken of any such fact, even though judicial notice was expressly stated to have been taken of other facts. Hence, it is submitted that the reference to section 19(3) of the 1973 Act in this context, as has been made by the applicant subsequently in his reply is misconceived. It is also submitted that even had judicial notice been taken of this matter, an article discussing whether the Hon’ble Tribunal was right in so doing is permissible. It is further submitted that even the most cursory reading of the blog articles would reveal that the opposite party exercises due care and attention, and was therefore acting in good faith, inasmuch that the blog articles make detailed and particular references to facts, figures and sources, which have not been specifically disputed or contested by the applicant. Without disputing facts, figures and sources, the applicant ought not to be allowed to baldly assert that the opposite party has not exercise due care and attention.

8. That the statements made in paragraph No. 9 are false and hence denied. In particular, it is denied that the opposite party is a habitual contemner as alleged. It is denied that the articles posted in the blog of the opposite party are contemptuous or are calculated to obstruct and interfere with the course of justice. Rather, it is stated that the comments referred to by the applicant represents permissible fair criticism. Furthermore, the assertion that the number of deaths in 1971 “has become part of the world history, a classic example of historical fact of common knowledge” represents the subjective opinion of the applicant. The opposite party respectfully submits that while the fact that gross atrocities occurred in Bangladesh in 1971 is a matter of common knowledge and cannot reasonably be denied, there are considerable differences of opinion and views held by various credible sources about the exact number of dead in 1971; the blog article of the opposite party merely discussed these different opinions and views upon a reference to such sources.

9. That the statements made in paragraph No. 10 are false, misleading, vague and hence denied. The opposite party denies that he was not acting in good faith. The opposite party further reiterates that his background, which is as a journalist with a background in law who has reported and written about war crimes and related issues for over 20 years as stated in his explanation, warrants him being regarded as a person capable of making fair criticism within the bounds of the observations of the Hon’ble Appellate Division as quoted in the paragraph. Again, the applicant is making a sweeping assertion that the opposite party is not well versed as to the provisions of law and is as such not qualified to make fair criticism is a vague statement, inasmuch that the applicant has failed to set out the reasons why the opposite party should be considered so. The opposite party fails to understand how 3 blog articles, which are among over 800 published by the opposite party since 2010, and which contain fair criticism of certain aspects of the proceedings before the Hon’ble Tribunal in sober and restrained language can be considered to be an “attack on the substratum of the judiciary”.

10. That the statements made in paragraph No. 11 of the reply are matters of record.

11. That the statements made in paragraph No. 12 of the reply are false, misleading, contradictory and hence denied. The explanation of the opposite party was given since it was ordered by the Hon’ble Tribunal. Accordingly, the opposite party made a statement explaining his articles, referring to sources. Now, the applicant is purporting to assert that by giving such an explanation in compliance with the order of the Hon’ble Tribunal, the opposite party has “dared to justify the truthfulness of his comments”. The opposite party reiterates that the criticism contained in his articles were fair, and indeed, if such criticism is not regarded as fair, it would beg the question as to what would be regarded as fair. Again, the applicant is alleging that the criticism was unfair without specifying the reasons for such alleged unfairness; it should be noted that at no point has the applicant alleged that the sources referred or information contained in the blog articles were not authentic or were inaccurate. Furthermore, it is submitted that truthfulness and factual correctness is relevant to the issue of whether contempt has been committed inasmuch that it is germane to the issue of bona fide and good faith, and assessing whether criticism is fair, which is permitted under the law.

12. That the statements made in paragraph Nos. 13 and 14 are misleading and hence denied. The opposite party reiterates and submits that the contents of his blog article do not constitute contempt of court, but rather represents fact based fair criticism expressed in sober and restrained language with a view to critically analyse the proceedings, which is permitted by the law, and are directed at seeking improvements in the trail process.

13. That the statements of fact made hereinabove are true and correct and the rest are submissions before this Hon’ble Tribunal.

Prepared in my office

Mustafizur Rahman Khan