1971's war time death numbers: further thoughts

How many people died during the 1971 war?

Over two years ago, in the context of the first indictment in the International Crimes Tribunal, I wrote a   a long article on this question, which can be seen here.

Since then, some more information that can be added to the analysis.

The 'official' government figure is that 3 million were 'killed' in the war at the hands of the Pakistani military and their collaborators.

It is significant that the word 'killed' is usually used - since this does not include those who died from war-related diseases.

Presumably therefore, those who argue that 3 million were 'killed' in the war also consider that many more also died from other war-related causes making the figure of those who died in the war higher than 3 million.

Tribunal judgements and the death toll in the 1971 war

An application was made last week to the international crimes tribunal claiming focusing on an article/post written on this blog which was written in 2011, over two and a half years ago, concerning the number of people killed in 1971 and claiming that it is contemptuous. 

The article was written in the context of a statement contained in the historical introduction of the charge-framing order (i.e indictment) delivered by tribunal-1 against Delwar Hosain Sayedee on 3 October 2011. It stated:

'As a result [of the actions of the Pakistan military, and the role of the collaborators] '3 million (thirty lacs) people were killed more than 200,000 (two lacs) woman raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced...'.

See here some my response to this contempt application

I thought it would be interesting to see how the nine subsequent final tribunal judgements, all delivered in 2013,  have dealt with the issue of the 1971 death toll.

Please note that this is simply a factual analysis of the judgements. Nothing more

Bangladesh ICT Witness abduction: a rejoinder

David Bergman                                                                    A bangla version of this article can be accessed here

In a judicial system which worked, the article written by Omor Shehab on bdnews24.com concerning my blog reports on the alleged abduction by law enforcement officers of a prosecution-turned-defence witness at the international crimes tribunal would have been the source of an apology and a pay out for me in defamation damages.

Unfortunately, in Bangladesh, I don’t think anyone has ever won such a legal action in the courts. So I shall instead respond here to Omor’s article which apart from defaming me through it’s claim that I helped ‘fabricate’ the story of the witness abduction, contains many inaccuracies and omissions and is generally highly misleading.

Omor Shaheb’s basic position is pretty clear. Sukhranjan Bali, a witness in the Delwar Hossain Sayedee trial, was not kidnapped outside the international tribunal from a defence lawyer’s car; the Jamaat-e-Islami was involved in a conspiracy to pretend that he was abducted; and I was a party to that conspiracy.

What does Bali himself say?
Bali has himself stated clearly he was abducted by Bangladesh law enforcement agencies from outside the tribunal.

Ten key things to know about the contempt application

These are main points relating to the application

1. On 19 February 2014, an application was filed with the International Crimes Tribunal 2 by a lawyer, claiming that three posts on this blog (which contains  a total of over 840 posts in total) were in 'contempt' of court. On 20 February, the tribunal passed an order stating:

'The applicant appears to have brought the application contending that the opposite party, Mr Bergman, made criticism on sub-judice proceedings and also he did post judgement criticism intending to create controversy and malign the authority and jurisdiction of the tribunal. 

Having regard to submission and essence and contents of the alleged criticism circulated by the opposite party in his own blog, we consider it expedient to ask David Bergman to explain the criticism allegedly he made in his personal blog on 11.11.2011 and 28.1.2013. 

Therefore Mr Bergman is directed to explain the criticism he circulated in his own blog, either in person or through his lawyer on 06..03.2014'

It should be noted that this is not a conventional 'show cause notice' where a person is asked to explain why particular action should not be taken against him or her in relation to a particular matter. It is simply an order asking for explanation. Presumably, the tribunal could subsequently issue a show cause notice.

2. One of the posts alleged to be contemptuous was published on 11 November 2011, over two years ago. The other two posts were published in January 2013, over one year ago. Since the publication of the January 2013 posts, there have been over 200 posts published on this blog, none of which were subject to criticism in the application.

3. The application is made under section 14(4) of the International Crimes Tribunal which states:

A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both. 

4. The application seeks my punishment for contempt, as well as more worryingly an order to close the blog and to stop me writing about the tribunal in any 'worldwide website'. So it seeks the following order:

'To pass an order of stay or injunction restraining the opposite party to further display, publish, circulate any articles/comments in his personal blog in respect of war crimes tribunal and its preceding or in any other electronic of print media or in any worldwide website.' 

It should be noted that this order is being sought on the basis of the applicant's claim that only 3 out of the 840 posts are contemptuous, with the most recent post which it criticises published over one year ago. The applicant has not criticised any one of the over 200 posts in the last year. Nonetheless, the applicant seeks to stop the blog and my writing on the ICT.

An attempt to clamp down on critical commentary

An application has been made before the international crimes tribunal, seeking my conviction on grounds of contempt of court and the closure of this blog. It also seeks an order preventing me from writing anywhere in the world about the international crimes tribunal.

This is the key prayer to the tribunal

'To pass an order of stay or injunction restraining the opposite party to further display, publish, circulate any articles/comments in his personal blog in respect of war crimes tribunal and its preceding or in any other electronic of print media or in any worldwide website.'

The application is a serious attempt to clamp down on any critical commentary about the international crimes tribunal - even if it is polite, thoughtful, constructive and fair.

Out of over 840 posts on this blog, the application only criticises three - the most recent one of which was published over one year ago after which I have published over 200 further posts, none of which are criticized.

One of the posts criticized was published over two years ago!

I do hope that all those concerned about freedom of speech in Bangladesh - even if they do not necessarily agree with my commentary in the blog - do protest against the filing of this application, which seems simply to be a form of harassment. It is important that constructive and fair criticism of the tribunal is allowed to be published.

See the following discussion of the application against me in three previous blog posts
1. Initial thoughts on the contempt application - and what Bangladesh law says about right to criticise judicial rulings

2. A consideration of the substantive issues in the application: The numbers of 1971 war dead

3. A consideration of the substantive issues in the application: The trial of Kalam Azad

Fair comment on judicial proceedings 3

This post continues with an examination of the contempt application against me which is to be considered by the International Crimes Tribunal later this afternoon.

As already mentioned, the application only refers to 3 out of over 840 posts as being contemptuous, with the most recent post that it criticises published over one year ago - since which I have published over 200 posts, none of which are criticized. Nonetheless the application seeks the closure of the blog and an order preventing me from writing about the tribunal anywhere in the world.

I have already written why there is no justification to argue that one of three of the posts, written over two years ago concerning the number of dead in 1971 is not contemptuous.

Here I will look at the other two posts. I encourage you to read them in full, as by doing so it is clear that they are fair an constructive comment of a judicial order which is permitted in Bangladesh law.

Fair comment on judicial proceedings 2

I have already made some initial comments about the contempt application filed against me, but the  hard copy of the application has now been kindly provided to me by Barrister Mizan Sayeed on the instruction of the plaintiff in the application, Abul Kalam Azad who is another High Court lawyer.* 

Key prayer: closing down website, stop writing
Before looking at the substance of the application, it is important to note that - other than seeking my punishment - the plaintiff has this 'prayer' to the court.

'To pass an order of stay or injunction restraining the opposite party to further display, publish, circulate any articles/comments in his personal blog in respect of war crimes tribunal and its preceding or in any other electronic of print media or in any worldwide website.'

It is this prayer which suggests the real motive behind this application - to stop any kind of commentary about the tribunal from a critical perspective. People may not agree with the commentary in the blog - and in some parts it is certainly quite trenchant - but when it does include critical comment, it comes within the fair criticism of judicial orders which Bangladesh law provides. As stated in my earlier post, the appellate division stated in two related 2010 cases that:

 ‘A fair criticism of judicial proceedings or courts is no doubt permissible so as to enable the court to look inward into the correctness of the proceedings and the legality of the order'

Fair comment on judicial proceedings

See also the subsequent posts on the written contempt application:
- Ten things to know about the contempt application

- Fair comment on judicial proceedings 2

- Fair comment on judicial proceedings 3

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Although I have not written directly about the proceedings of the International Crimes Tribunal for quite some time, a High Court lawyer, Abul Kalam Azad is reported to have filed an application with the International Crimes Tribunal asking the tribunal to issue a 'show cause' notice relating to some of the content of this blog.

The ex parte hearing (i.e one in which I have no right to appear) on whether or not the court will issue a show cause notice against me is taking place tomorrow (thursday) morning.

The application was first reported in the Dhaka Tribune where it is stated:

A High Court lawyer has filed a petition with the International Crimes Tribunal seeking a ruling as to why a show-cause notice should not be issued against British journalist David Bergman for making “derogatory” comments about the tribunal in a blog. 

HC practitioner Abul Kalam Azad filed the petition with Arunabha Chakrabarty, deputy registrar of the second war crimes tribunal, late yesterday afternoon.

Further on BBC and the Bali abduction story

I have been meaning to put this correspondence up on the website for some time, and am now doing so - over six months after recieving it - due to a recent article on bdnews24.com which references the BBC article in order to try and discredit my work.
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In May 2012, New Age published an article which provided details of a statement given by Sukhranjan Bali, a witness at the International Crimes Tribunal, which confirmed that he had been abducted by the law enforcement agents from outside the tribunal.

Subsequent to that, the BBC ran an article which inter alia suggested on the words of an anonymous intelligence agency person, quoting an unnamed prison officer, that on being bribed, a prison officer smuggled the statement from Bali out of the jail. I wrote an article about this, which can be found here