Sunday, June 14, 2015

Geofrey Robertson QC and ICT contempt proceedings

Geofrey Robertson QC is one of Britain's most able and renown barristers, who has written widely on war crimes and who has sat as an international appellate judge at the UN sponsored Special Court for Sierra Leone.

One could not seek a more eminent, independent - or indeed appropriate - person to assess the International Crimes Tribunal, and earlier this year he was asked by one of the lawyers acting for the Jamaat to 'provide an independent opinion on their fairness and on the Tribunal’s proceedings and conduct,' and this was published in 2015

To read about the issue relating to the independence of the report
To read about what the report says about prosecution pakistani military officers

I raise this now, since the Robertson report (which has got almost no media attention in Bangladesh) contains a short section looking at the contempt proceedings against myself in relation to writings on this blog - and since now the Tribunal has given its judgement on the subsequent contempt proceedings against 23 people who signed a statement critical of that particular judgment, it is now possible to share what Robertson said about those contempt proceedings.

However, I will share an edited version for fear that my re-publication of the full version could be the cause of further contempt charges - since it uses choice language about the tribunal that will not be considered appropriate under the current ICT contempt jurisprudence.

So those who want to see, exactly what Robertson has to say about the contempt proceedings, go to p.65/66 of the report. Here is the edited version.

"…. and by 2014 the judges have become even more XXXX and XXX of nationalist assumptions. This is demonstrated by their contempt proceedings against David Bergman, an experienced journalist whose work (notably an award-winning Channel 4 film “War Crimes File”) has helped to draw international attention to the need for justice in respect of the 1971 atrocities, and whose blog has provided reliable information about the course of the trials (see fn 126). He was indicted, simply for questioning whether as many as three million civilians were killed in 1971 (see fn127) 
This figure has become a government shibboleth, but is probably exaggerated, like most estimates of war deaths made in the absence of sound demographic evidence. The original source of the 3 million figure appears to have been a report in Pravda, which at the time was providing propaganda support for the Indian government (which has put the death toll at about one million). Most, if not all, independent studies challenge the 3 million estimate, (see fn128) although the likelihood is that there were at least a million casualties, not all of them were victims of the army and its associates. But even to question XXX that three million died was considered to be a crime. “Why did he create this controversy?” “Why did he write about this issue at this time?” were questions put to Bergman’s counsel by the judges who, when they convicted him in December 2014, showed themselves XXXX of the fundamental rule of free speech which permits questioning of any historical “fact” if done without intent to stir up racial hatred. 
Merely for questioning the ‘official’ death toll of three million, the Tribunal judges ruled that Bergman had “hurt the feelings of the nation’ and XXXX accused him of having “neither good faith nor an issue of public interest”. (See fn 129) This finding, in respect of a journalist of good repute writing on an obvious matter of historic interest, whose calculations are supported by most independent studies, does XXX about the XXX of these judges to make accurate findings of fact when “national honour” is perceived to be at stake. The presiding judge, Obeidal Hassan, went so far as to claim that Bergman “has a perverse mindset about the 1971 war. Let the government carefully scan the matter”. This is language which betrays the court’s XXXXX XXXX. XXXXXXX judiciary bound, under its common law, to suffer the scrutiny of honest critics. (see fn 130) It is fair to say that Bergman was only fined the equivalent of £41, but the case reveals a XXXXX on the part of a Tribunal that XXXX criticism.
It does not, of course, matter whether the casualties were 500,000 or three million – that these judges think it matters sufficiently to convict a respected journalist of a crime for challenging, like other experts, the three million figure, shows XXXX. Bergman’s indictment on a second charge of contempt, for criticizing the Tribunal’s defense of trials in absentia, provides another example of XXXX. The judges had defended the holding in absentia of Abul Kalam Azad’s trial on the ground that the Lebanon Tribunal and certain European countries also permitted such trials. Bergman pointed out, quite rightly, that this was misleading, because in those courts the absent defendant, when captured or voluntarily returning, was entitled to have the verdict put aside and to be tried in his presence – a right which was not vouchsafed by the ICTA. (see fn 131) To be indicted for criminal contempt for pointing out factual errors in its decision is XXXX, and provides a further example of the Tribunal’s XXXX to justified criticism."

Footnotes referred to126: See generally,
127: For the post, see
128: The various estimates of scholars of the genocide are most recently set out by Bass in “The Blood Telegram” (above) p350-1, footnote 6. He too describes the 3 million figure as “inflated”.
129: See The Guardian, 2 December 2014, “Bangladesh court convicts British journalist for doubting war death toll”.
130: Because “Justice is not a cloistered virtue”. See Lord Atkin in Ambard v A.G. for Trinidad & Tobago, (19360 A.C. 322 at 335.
131 For these posts, see, and 

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