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."

The Title
About the ‘title’ of the article, the judgement states that:

 "David Bergman intended to term the ‘trial processes’ of the Tribunals as ‘one-sided trials’. The article...  visibly reflects his tendency that imbued him continuing in
making disparaging criticism on Tribunal and its judicial process (para 117)

However, the responsibility for the title of the article are the publisher.

Moreover, the title does not refer to the trials being one-sided towards the prosecution (which the Tribunal is perhaps suggesting that it is) but 'one-sided' in that other categories of people also responsible for atrocities are not being prosecuted at the tribunal - namely the Pakistani military and those responsible for the Bihari killings. (Nb: It should  be noted that the article quotes the US Ambassador Rapp stating that the failure to prosecute those responsible for the Bihari killings "does not lessen the legitimacy of the wider trial process".)

The article itself a balanced reports on the tribunals - containing the views of different parties. For example it quotes the the National Human Rights Commission chairman as stating: “No other court in the world provides more rights to the war criminals than this one.”

Historical description
The judgement then argues that

David Bergman has attempted to term the nation’s 'war of liberation' as 'the force used to prevent Awami League in East Pakistan from coming to power'. The war of liberation in 1971 was for self determination of 'Bengali nation'. But David Bergman further commented that the 'war was 'between Pakistan army and Awami League supporters'. Distorting settled history, in respect of the glorified 'war of liberation', by providing above 'perverse view' that David Bergman made long before posting the alleged articles in his personal blog lends assurance as to his 'mindset' which is compatible to the 'malicious intent' he has shown even in making alleged criticism in the three articles. Such view touching the glory of our 'war of liberation' he made in the above article
[2012], in other words, has demeaned the nation's pride. (para 118)

It then goes onto say that:

"We are surprised indeed how and on what basis David Bergman the contemnor who is a foreign national has been working in Bangladesh carrying such perverse mind set towards our ‘war of liberation’ and the trial process being held in the Tribunals. It is not yet clear to us. However, we are not concerned with this matter. Let the government’s concerned authority make a lawful scan on this matter. (para 119)

The judgement goes onto explain that my supposed mistake was in failing to state that the Pakistan army's military efforts were to stop the fulfillment of the proclamation of Independence on 25 March 1971 rather than to stop the Awami League coming to power, and that the war was between the Pakistan military and the whole Bengali nation. It then states.

But David Bergman has indeed gone too far by spreading his unfounded, distorted view that is slanderous to the glorious history of our war of liberation. Is he ignorant of the history of our independence? Or does he deliberately intend to taint our pride we achieved through the bloody war of liberation? The view David Bergman has placed in the article as discussed above inevitably proves his 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’. David Bergman has shown patent disrespect to our ‘proclamation of independence ‘ by uttering that ‘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’. It was the Bengali nation who fought for their independence and self determination. Nobody living in the land of our motherland Bangladesh should have license to disrespect the sacrifice the nation paid in achieving independent Bangladesh, by expressing such unfounded, purposeful and prejudicial view. (para 126)

The following points can be made about this

1. The article subject to this scrutiny is not about the history of the 1971 war. The Tribunal is simply examining a short introduction to an article on a different subject.

2. The judgement misquotes the article itself. It states:

"But David Bergman further commented that the war was 'between Pakistan army and Awami League supporters".

When in fact the article states:

"The war between the Pakistan army and Awami League supporters and others"

The term 'and others' is important in the context of the criticism which the Tribunal is making.

4. Whilst there may well be an alternative way of writing the article, It is unclear how this introduction to this 2012 article can support a view 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."