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tag:blogger.com,1999:blog-67722598827488928572014-09-27T23:32:44.046+06:00Bangladesh War Crimes TribunalDavid Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-11050783339040754112014-09-20T12:09:00.002+06:002014-09-20T12:37:42.806+06:00Sayedee - 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.

If we assume for now – and this must surely be the assumption of the Attorney General - that the tribunal judges and the appellate division assessed the evidence fairly, then the tribunal judges decision to convict Sayedeee on eight offences, and the subsequent appellate division decision to uphold five of them, cannot be considered as anything other than a success for the investigators and the prosecutors.

How can the investigators and prosecutors be criticized when it was their work that convinced, 'beyond reasonable doubt', two sets of judges that Sayedee had committed five separate offences of crimes against humanity?

Of course, what Alam and others are trying to do is to blame the investigators and prosecutors for the appellate division's decision to commute Sayedee's death penalties.

If that is the case, then he has an inadequate understanding of how sentencing should take place - since following conviction the level of sentence should not concern the adequacy of the evidence, but rather factors that focus on the nature and gravity of the offence, and the accused's role in it.

If Alam really wanted to pin someone with responsibility for the court's decision to commute the death sentence, he should consider blaming himself, since it was his job as Attorney General to persuade the appellate division that the offences were serious enough to justify a death penalty.

But perhaps self flagellation is unwarranted.

It is interesting to compare the offence for which the appellate division decided in December 2013 Abdul Quader Molla should hang, with the offences that the same court in Sayedee's case last week commuted from death sentences to terms of imprisonment.

Again putting to one side the question of the sufficiency of evidence that resulted in the conviction, the offence for which Molla was hung concerned his alleged direct presence and involvement in the massacre of a family comprising six people.

But Sayedee's two death penalty offences were far less grave, concerning his alleged involvement in the murder of one person.

If we ignore the claims made in the media about political influence of the appellate division's decision, it was certainly reasonable for the court to decide that Sayedee should not be hung for these offences. Certainly, had it been the case that the offences for which Sayedee had been convicted been more grave than the offence for which Molla was sentenced to death, then there would have been legitimate questions to be raised. But that was not the case.

There are of course many reasons for the investigators and prosecutors to be severely criticized in Sayedee's case (which this blog will be discussing in subsequent posts.)

But they cannot be blamed for the appellate division's decision to commute the death sentences.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-15614058216653965122014-09-16T21:03:00.004+06:002014-09-20T12:35:57.269+06:00Sayedee 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

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WEDNESDAY 17 SEPTEMBER

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

8.30 am: Off to court
Will update as soon as the order is read out in court

8.00 am: Right of review - a matter of delay
Since it is extremely unlikely that the same judges of the appellate division would agree to overturn a decision on the basis of an application to review its decision (see below), the issue of the right to review really has little impact on the proceedings other than providing Sayedee some additional time before he is hanged. This is assuming of course that the appellate division upholds the tribunal's sentence.

7.45 am: Current Law minister supported right of accused's 'right of review' at time of Molla
Interestingly, at the time of the Molla review application, the current law minister, Anisul Huq, was not part of the government. He was quoted at the time as stating: "Although there is no provision for filing a review petition in the ICT Act, a convicted person's fundamental and Constitutional rights allow him to file a review petition with the apex court."

7.40 am: Do the defence have a 'right of review'?
Assuming the appeal decision does not go the way of the defense, the question arises whether or not Sayedee lawyers have a right to seek a review of the decision.

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 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 (see below at Tuesday 11.25 pm), 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.

7.20 am: Good morning
In less than a couple of hours the appellate division should announce whether or not it has upheld the appeal of Delwar Hossain Sayedee against the decision of the International Crimes Tribunal which sentenced him to death for two offences involving crimes against humanity in the 1971 Independence war of Bangladesh or whether it has upheld the decision.

To see details of the two offenses for which Sayedee is facing a death penalty, see the sequence of posts below from 00:20 am earlier today

01:20 am: Goodnight
This will continue later in the morning .....

01:00 am: The defence arguments on death penalty conviction - charges 8 and 10
Earlier (at 00:30 am), the relevant extracts of the tribunal judgement on charge no 8 and 10 were set out - the ones where Sayedee received a death penalty. So, what is the defence response to these conclusions? Below are the extracts from the defence's appeal petition, filed before the appellate division, which seems to summarise the key arguments.

"In Charge - 8 regarding fire, damaging and looting Manik Poshari and his brothers' houses; abducting and killing Ibrahim Kutti; abducting and torturing Mofiz Uddin and damaging and looting goods in Hindu houses at 3.00 pm on 8th May 1971 in Parerhat Bondor the Tribunal relied upon the evidence of PWs 2, 4, 6, 7, 8, 9, 10, 11 and 12 and DWs 2, 15 and 17 and Defence Exhibit – V & AJ.

But the Tribunal did not at all consider that there is no evidence before the Tribunal on damaging and looting goods in Hindu houses on 8th May 1971. The Tribunal should have considered that though many of the prosecution witnesses claimed to have witnessed part of the alleged incident of Charge - 8, none of them complained about this incident in the last 40 years.

The Tribunal did not consider material contradictions between the statements of the prosecution witnesses and also that these witnesses are sufficiently discredited in cross examination.

The Tribunal also did not consider the inconsistencies in the statements of the prosecution witnesses regarding time, place and manner of the alleged occurrence.

The Tribunal surprisingly did not at all consider the Defence Exhibit No – 'A' which is certified copy of the Complaint filed by wife of Ibrahim Kutti on 16th July 1972 (i.e. immediate after the liberation war) where she complained that Ibrahim Kutti was killed five months later, on 1st October 1971, on a different place by 12 listed persons with Pakistani Army. She did not complain against the Appellant. It is difficult to understand why the Tribunal overlooked Exhibit – A which is the most authentic evidence to adjudicate on Charge 8 and sufficient to show that all the prosecution witnesses supporting Charge 8 were lying.

The Tribunal also did not consider that material contradictions between the evidence of the prosecution witnesses and their previous statements recorded by Judicial Magistrate in the case filed by PW -6 before the Pirojpur (Exhibits – W to W-4).

Though the tribunal considered the evidence of DWs 2, 15 and 17 to find the Appellant of guilty of Charge 8 the Tribunal should have considered that these witnesses vehemently stated that the Appellant was not involved in any such incident. The Tribunal should have considered that Defence Exhibit – V & AJ do not in any way incriminate the Appellant and in fact support his innocence.

It is therefore submitted that in view of the evidence on record the finding of guilt in Charge – 8 is not only absurd but also manifestly perverse and does not sustain in law and fact."

And in relation to charge 10

"In Charge - 10 regarding burning 25 Hindu House of Village Umedpur and killing Bishabali at 10.00 am on 2nd June 1971 the Tribunal relied upon the evidence of PWs 1, 5 and 9. But the Tribunal did not at all consider that the PW-1 is not at all reliable as he claimed that he was informed about arrival of the Pakistani from one Mr. Khalilur Rahman who evidently not even born at that time. It is also evident on record that PWs 1 and 5 were minor at that time. In Charge 9 the Tribunal disbelieved PW 14 for being minor. The Tribunal did not explain why PWs 1 and 5 can be believed though they were minor at the relevant time.

The Tribunal also did not consider that in his earlier report PW-1 stated that Bishabali was killed in Pirojpur in the bank of river Boleshwar which contradicts his evidence.
The Tribunal did not consider material contradictions between the statements of the prosecution witnesses and also that these witnesses are sufficiently discredited in cross examination.

The Tribunal also did not consider that the prosecution witnesses supporting this charge are merely chance witnesses and the prosecution did not bring any witness from Umedpur village though the Investigation Officer (PW28) admitted that many of the victim families are still living there.

The Tribunal should have considered that the victim Bishabali's brother Mr. Shukharanjan Bali was an eye witnesses and the law enforcing agencies abducted him from the tribunal premises so that he cannot give evidence for the Appellant.

The Tribunal did not consider the defence witness and documents which conclusively show that the Appellant was not at all involved in the alleged incident of Charge 10. It is therefore submitted that in view of the evidence on record the finding of guilt in Charge – 10 is not only absurd but also manifestly perverse and does not sustain in law and fact."

00:30 am: Tribunal judgement decision on count 8
The allegation relating to count no 8 (for which Sayedee was given the death penalty, along with count no 10) was set out earlier in this post (see: 00:20 am). Extracted below are the relevant paragraphs from the Tribunal judgement on the evidence supporting the charge. (You can read and download the full trial judgment from here)

Apologies for the length of this extract!

Discussion on evidence 141. P.W. 2 Ruhul Amin Nobin has deposed that on 8th May, 1971, Pakistani Army along with the members of Razakar bahini and Peace Committee looted away goods of 7/8 houses including the houses of Raisuddin Posari, Helaluddin Posari, Saizuddin Posari and Manik Posari of villages Baduria and Chitholia, situated at the eastern side of Parerhat Bandar. He further deposed that after looting those houses were burnt to ashes. He also testified that Peace Committee and Razakar Bahini were formed at Parerhat under the leadership of accused Delwar Hossain Sayeedi and others. He identified the accused in the dock. 142. P.W.2 stated in his cross-examination that on 7th May, 1971 at about 9.00/9.30 a.m. Pakistani Army came to Parerhat and then at about 12.00/1.00 p.m. on that date they set up a camp at Parerhat school. He denied the defence suggestions that accused Delwar Hossain Sayeedi and others did not form Peace Committee at Parerhat and that the accused was not in the area of Parerhat or Pirojpur on May 7, 8 and middle of June, 1971.

143. P.W.4 Sultan Ahmed Howlader has deposed that perhaps on 8th May at about 2.30 p.m/3.00 p.m. he heard a hue and cry coming from the house of Manik Posari and, he also saw there the flame of fire. He further deposed that he also saw 15/20 houses including the houses of Manik Posari, Nurul Islam Khan, Raisuddin Posari, Saijuddin Posari were burning and, at that time he saw that the Pakistani Army and members of Razakar bahini including accused Delwar Hossain Sayeedi were taking away Mofizuddin and Ibrahim alias Kutti, a cousin and an employee respectively of said Manik Posari, towards Parerhat. He also deposed that Pakistani Army and the Rajakars after having arrived at the thanaghat he noticed that the accused talked something to Pakistani Army and then he (P.W.4) heard heavy gun-shot and outery and, on the following day 69 he heard that Pakistani Army and Rajakars had killed said Ibrahim alias Kutti by gun-shot and his dead body was thrown into water, then said Mofizuddin was taken to Army camp and was tortured therein and at night Mofizuddin managed to flee away from the said camp. He identified the accused in the dock.

144. P.W.4 in his cross-examination, denied the defence suggestion that he has deposed falsely that accused Delwar Hossain Sayeedi and other members of Razakar bahini took away Mofiz, and Ibrahim alias Kutti, to thanaghat and thereafter the accused talked to Pakistani Army and heard a gun-shot. He stated in cross-examination that he met Mofiz when he came back on being escaped from the camp but he saw mark of injuries on his person.

145. P.W. 6 Manik Posari has deposed that during Liberation War, 1971, accused Delwar Hossain Sayeedi formed Peace Committee at Parerhat with anti-Liberation persons and similarly Razakar Bahini was also formed with them. He further deposed that on 8th May, 1971, Pakistani Army along with the accused and other Rajakars came to their house and caught hold of his cousin Mofizuddin and domestic help Ibrahim alias Kutti and thereafter they looted away valuables from their house. He also saw the accused at whose instruction Razakars by pouring kerosene oil burnt their five houses to ashes; thereafter they took away said Mofizuddin and Ibrahim alias Kutti tied with ropes towards the Army camp at Parerhat and then Pakistani Army having been instigated by the accused one Shekander Sikder killed said Ibrahim alias Kutti by gun-shot at the bottom of a bridge and then threw his dead body into the 70 river. He also deposed that thereafter they took said Mofizuddin to Army camp and tortured him therein and in the night Mofizuddin managed to flee away from the Army camp to his house having marks of torture on his person. He identified the accused in the dock.

146. P.W.6 stated in his cross-examination that Ibrahim alias Kutti had been working in his house since 3/4 years before he was caught hold of by Pakistani Army and his father's name was Gafur Sheikh who belongs to village Baduria. He further stated that said Kutti was married and perhaps he had 2/1 children. He denied the defence suggestion that he has deposed falsely that accused Delwar Hossain Sayeedi along with members of Peace Committee and Rajakars looted his house and burnt five houses after pouring kerosene oil.

147. P.W.7 Md. Mofizuddin Posari has deposed that on 8th May, 1971, at around 10.00/11.00 a.m., he and Ibrahim alias Kutti saw that 12/14 Pakistani Army along with 20/22 Razakars including accused Delwar Hossain Sayeedi were coming towards the house of one Saijuddin Posari and then he and Kutti tried to flee away but Pakistani Army and Rajakars caught hold of them and then by pouring kerosene oil burnt five houses to ashes and they also looted the goods of those houses. He further testified that Pakistani Army and said Rajakars tied them with rope and then they proceeded towards Parerhat camp and on the way they killed Ibrahim alias Kutti by gun-shot; thereafter they took him to Parerhat camp and tortured him therein. He also testified that in the night he managed to escape from the camp to his house and narrated the occurrence to Manik Posari and others. He claimed to be an eye witness of the said occurrence. He identified the accused in the dock.

148. P.W.7 stated in his cross-examination that before independence of the country, he used to work and stay in the house of his cousin Manik Posari. He further stated that Ibrahim alias Kutti had been working in the house of Manik Posari before he started working therein and he and Ibrahim alias Kutti belonged to same village and Ibrahim alias Kutti was married. He denied the defence suggestions that he was not a worker of the house of Manik Posari and he has deposed falsely as being tutored.

149. P.W.8 Md. Mostafa Howlader has deposed that on 8th May, 1971, 15/16 Pakistani Army along with 30/35 Rajakars including accused Delwar Hossain Sayeedi went to the house of Saijuddin and burnt his five houses after having looted the goods of those houses and then they caught hold of Mofizuddin Posari and Ibrahim alias Kutti therefrom and tied them with a rope and then they killed Kutti by gun-shot and dumped his dead body near a bridge and thereafter they took Mofizuddin to Rajakar camp. He identified the accused in the dock.

150. P.W.8 stated in his cross-examination that he knew Ibrahim alias Kutti since 2/1 year before the occurrence of his killing and he heard that said Kutti was a worker of the house of Saijuddin Posari (father of Manik Posari) and his father's name was Gafur Sheikh and his dead body was not found. He further stated that he knew Mofizuddin Posari since 2/1 year before 1971 and he also worked in the house of Saijuddin Posari. He also stated in his cross72 examination that he knew accused Delwar Hossain Sayeedi since 2/3 years before 1971. He denied the defence suggestion that he has deposed falsely that Ibrahim alias Kutti after having been taken from the house of Manik Posari he was killed by gun-shot and his dead body was thrown into a 'Khal'.

151. P.W. 9 Md. Altaf Hossain has deposed that on 7th May, 1971, Pakistani Army came to Parerhat and, 6/7 days prior to their arrival, a Peace Committee was formed at Parerhat with accused Delwar Hossain Sayeedi and others and thereafter the accused himself also formed there a Razakar bahini with the members of the Peace Committee. He further testified that after having been formed the said Peace Committee and Razakar bahini, about 30/35 shops and houses of Parerhat were looted. He also deposed that all the offences e.g. arson, looting, rape, etc. were committed at Parerhat and nearby places under the leadership of the accused. He identified the accused in the dock.

152. P.W.9 stated in his cross-examination that Razakar bahini was formed 2/3 days after the Peace Committee had been formed and that about 30/35 houses and shops were looted. He denied the defence suggestion that he has deposed falsely that looting, arson and rape were committed in Hindus' houses of Parerhat and nearby places under the leadership of accused Delwar Hossain Sayeedi. He also denied the defence suggestion that accused Delwar Hossain Sayeedi was not in the area of Pirojpur since before starting of Liberation War upto middle of July, 1971.

153. P.W. 10 Basudev Mistri has testified that during Liberation War, 1971 he along with his father used to work as labourers in the house of Manik Posari that accused Delwar Hossain Sayeedi and others formed a Razakar bahini and that on 8th May, 1971 he saw that Pakistani Army and Rajakar bahini came to the house of Manik Posari (P.W.6) and caught hold of Ibrahim alias Kutti and Mofizuddin therefrom and then looted away the goods of the house of Manik Posari and thereafter the accused and other Rajakars burnt that house. He also saw that Pakistani Army and Rajakars took Ibrahim alias Kutti and Mofizuddin to a bridge and killed Ibrahim alias Kutti there. He further deposed that they tortured Mofizuddin in the Rajakar camp after having taken him there but he managed to flee away from Razakar camp and narrated the occurrence to others. He identified the accused in the dock.

154. P.W.10 stated in his cross-examination that on the date of occurrence Razakars burnt the house of Manik Posari and they caught hold of Ibrahim alias Kutti and Mofizuddin from the house of Manik Posari. He denied the defence suggestion that he has deposed falsely against accused Delwar Hossain Sayeedi.

155. P.W. 11 Abdul Jalil Sheikh has testified that on 8th May, 1971 he saw that some Rajakars including accused Delwar Hossain Sayeedi along with 10/15 Pakistani Army having come to their village Chitholia went to the house of Manik Posari and then the accused along with two other Rajakars caught hold of Kutti and Mofizuddin therefrom and tied them with rope and then they looted the valuables of that house and, thereafter they having poured kerosene oil burnt that house. He further stated that the said Razakars and Pakistani Army having taken Kutti and Mofizuddin with them left for bazar and after 74 crossing the bridge Pakistani Army killed Kutti by gun-shot at the thanaghat. He further deposed that the Razakars and Pakistani Army along with Mofizuddin went towards the camp through the bazar. He identified the accused in the dock.

156. P.W.11 stated in his cross-examination that Manik Posari is his cousin and Mofizuddin Posari is the husband of his cousin (sister). He further stated in cross-examination that Ibrahim alias Kutti came to the house of Manik Posari one year before Liberation War and since then he knew him. He denied the defence suggestions that accused Delwar Hossain Sayeedi was never a Razakar and he deposed falsely against the accused.

157. P.W. 12 Alhaj A.K.M.A. Awal alias Saidur Rahman (M.P) has deposed that at the time of Liberation War, 1971, Pakistani Army and Rajakars burnt houses of village Baduria and the houses of Nurul Islam, Raisuddin Posari, Saijuddin Posari and Manik Posari of village Chitholia including the houses of Hindu community. He further deposed that at the time of said occurrence accused Delwar Hossain Sayeedi was present as one of the members of the Razakar team. He identified the accused in the dock.

158. D.W.2 Abdur Razzak Akand has stated in cross-examination that during War of Liberation Razakars used to plunder goods and he heard that Razakars set fire in the village of Hoglabunia mainly on the houses of Hindu Community, and freedom-fighters, and accordingly set fire on the house of freedom-fighter Khasru of Shankarpasha and another house besides it. He alsostated in cross-examination that there was a camp of Rajakars at Parerhat and Pakistani Army used to come there.

159. D.W.13 Masood Sayeedi has stated that he is a son of accused Delwar Hossain Sayeedi. He exhibited before the Tribunal the photo copy of the 8th volume of the book "XXX" edited by Hasan Hafizur Rahman which was marked as Ext. V. 160.

D.W.13 stated in his cross-examination that it has been described in Ext.V that during Liberation War many men and women became the victims of killing, rape, looting, etc. committed by Pakistani Army, Peace Committee and Razakars. He also stated that it has also been described in the book, Ext. AJ (exhibited by the defence) "XXX" that during Liberation War, killing of people, rape, looting, arson, etc. were committed by Pakistan Army, Peace Committee and Razakars in the district of Pirojpur.

161. D.W.15 Abdus Salam Hawlader has stated that Pakistani Army with the co-operation of those people burnt the house of his uncle Nuru Khan (Nurul Islam Khan) and his said uncle was a leader of Awami League and, after 15/20 minutes Pakistani Army went to village of Chitholia and after sometime they came to know that the houses of Saijuddin and Raisuddin of village Chitholia were set on fire.

162. D.W.17 Gonesh Chandra Shaha has stated in his cross-examination that he heard that Rajakars used to assist Pakistani Army by catching hold of people and killed them.

Evaluation of Evidence and findings:

163. The prosecution has examined as many as 9 witnesses to prove the charge No. 8 relating to killing of Kutti and setting fire on the houses of Hindu Community of Parerhart areas under Pirojpur police station made by Pakistani Army and local Razakers headed by accused Delowar Hossain Sayeedi. Upon critical analysis of the evidence adduced by P.W Nos.2,4,6,7,8,9,10,11 and 12 it is found that on 8 May,1971, the Pakistani Army along with a good number of Razakars including accused Delowar Hossain Sayeedi came to the house of Manik Posari from where they caught victim Ibrahim alias Kutti, and Mofizuddin Posari. It is evident that on that day Pak-Army and local Razakars looted goods from different houses and set fire on the houses of Raisuddin Posari, Helaluddin Posari, Saizuddin Posari and Manik Posari, Nurul Islam Khan and others of village Baduria and Chitholia adjacent to Parerhat Bandar. It is evident from the evidence educed by aforesaid 9 witnesses that on seeding Pakistani Army and Razakers while Ibrahim alias Kutti and Mofizuddin Posari (P.W-7) tried to flee away then the Razakars caught hold of them and fastened their hands by a rope and dragged them towards Parerhat Razakars Camp, on the way, near a bridge, Pakistani Army killed Ibrahim Kutti by gun shot and taking Mofizuddin to the Camp tortured upon him but in the night he managed to escape from the clutches of Razakars. P.W-7 Mofizuddin Posari is the eye witness of the killing of Ibrahim Kutti and he luckily saved his life by escaping from Razakar Camp. He categorically testified that accused Delowar Hossain Sayeedi as a member of Razakar Bahini caught them at crime site and ultimately 77 Ibrahim was killed by Pak-Army, under the above circumstances, we find no reason to disbelieve evidence of P.W-7 as to murder of Kutti, destruction of houses of civilians in a large scale by setting fire which constitute crimes against Humanity.

00:30 am: Tribunal Judgement decision on count 10
The allegation relating to count no 10 (for which Sayedee was given the death penalty, along with count no 8) was set out earlier in this post (see: 00:20 am). Extracted below are the relevant paragraphs from the Tribunal judgement on the evidence supporting the charge.

Discussion on evidence:
 169. P.W. 1 Md. Mahbubul Alam Howlader has deposed that he heard from people that on 2nd June, 1971 at about 10.00 a.m. accused Delwar Hossain Sayeedi along with some other members of Peace Committee and Razakar bahini and also Pakistani Army raided the Hindu para of his village Umedpur and looted the valuables of 25/30 houses of that para and then burnt those houses to ashes. He further deposed that house owners namely, Chittarangan Talukder, Johon Talukder, Bisabali , Sukub Ali, Onil Mondal and others sustained loss of about 50 lac taka for complete destruction of their houses. He stated that Bisabali was caught and tortured and after fastening him with a coconut tree, he was shot dead by a Razakar at the insistence of accused Delowar Hossain Sayeedi. He identified the accused in the dock.

170. P.W.1 in his cross-examination denied the defence suggestions that Bisabali was not tortured after having been tied with a coconut tree and that Bisabali was not shot dead while he was tied with coconut tree and that Pakistani Army having abducted Bisabali took him to the bank of Baleshwar 80 river and killed him there by gun-shot. He also denied the defence suggestions that accused Delwar Hossain Sayeedi was not present at the time of looting and arson of 25/30 houses of Hindu Para and killing of Bisabali and was not involved in any way with the alleged occurrence.

171. P.W. 5 Md. Mahtabuddin Howlader has deposed that on 2nd June, 1971, at about 10.00/10.30 a.m. while he was going to Parerhat he saw that Pakistani Army along with some members of Peace Committee including accused Delwar Hossain Sayeedi and armed Razakars raided the Hindu para of village Umedpur and looted goods from the houses of that para and burnt 20/22 houses and after having tied one Bisabali with a coconut tree tortured him and thereafter Bisabali was killed by Rajakars at the instigation of the accused. He identified the accused in the dock.

172. P.W.5 in his cross-examination denied the defence suggestions that he has deposed falsely that on 2nd June, 1971 at about 10.00/10.30 a.m.while was going to Parerhat he saw Pakistani Army along with accused Delwar Hossain Sayeedi, members of Peace Committee and armed Rajakars to enter into Hindu para of Umedpur and then he having hidden himself in a jungle, situated at southern side of Hindu para, saw them to loot goods of the houses of Anil Mondol, Nolita Bali, Horendra Nath Chowkrabarti, Mukem Chowkrabarti, Satish Bala, Chitta Talukder, Robi Talukder and then to set fire on 20/22 houses of that Hindu para. He also denied the defence suggestion that he has deposed falsely that accused Delwar Hossain Sayeedi after saying something in 81 Urdu one Rajakar killed Bisabali by gun-shot when he was tied with a coconut tree.

173. P.W. 9 Md. Altaf Hossain Howlader has deposed that on 2nd June, 1971 he went to his maternal uncle's house at village Umedpur and on that date at about 10.00/10.30 a.m. he saw from a hidden place that Pakistani Army along with accused Delwar Hossain Sayeedi and some other Razakars raided the Hindu para of village Umedpur and looted goods from the houses of that para and burnt 18/20 houses and after having tied one Bisabali with a coconut tree tortured him and thereafter one Rajakar killed him by gun-shot at the direction of the accused. He identified the accused in the dock.

174. P.W.9 in his cross-examination denied the defence suggestions that he has deposed falsely that on 2nd June he went to his maternal uncle's house and on the way he saw accused Delwar Hossain Sayeedi along with Rajakars to enter into Hindu para of Umedpur and to set fire on 18/20 houses of that para. He also denied the defence suggestions that he has deposed falsely that Razakars tortured one Bisabali while he was tied with a tree, then by the order of the accused one Razakar killed him by gun-shot.

Evaluation of evidence and findings:

175. The prosecution has examined 3 witnesses to prove charge No.10 relating to killing of Bisabali and burning of 25 houses of Hindu para of village Umedpur by Pakistani Army wtih the assistance of accused Delowar Hossain Sayeedi and his associates. Upon critical analysis of the evidence adduced by P.W. Nos.1,5 and9 it is found that on 02.06.1971, Pakistani Army accompanied 82 with local Razakars including accused Delowar Hossain Sayeedi attacked Hindu para of village Umedpur and after looting away valuables therefrom, they set fire on about 25 dwelling houses of unarmed civilians. It is evident that one civilian named Bisabali was caught and tortured by Razakars, thereafter victim Basabali was fastened with a co-conut tree and he was shot dead by a Razakar at the insistence of accused Delowar Hossain Sayeedi, P.W-5 Mahtabuddin Howlader and P.W-9 Altab Hossain Howlader have proved the occurrance of burning dwelling houses of unarmed vivilians of Hindu para as well as killing of Bisabali at the insistence of the accused as eye witness of the occurrances. The manner of setting fire on the houses of unarmed civilians gives sufficient indication that the perpetrators in a planned way burnt a Hindu para with intent to cause large scale devestation. It is also evidently revealed that the accused knowingly contributed and facilitated in the commission of killling of Biasbali and the act of burning huge number of dwelling houses by his presence and participation is considered as persecutioin. It is well proved that the accused was involved with the commission of murder and persecution within the purview of crimes against Humanity.
00:20 am: The two death penalty counts
As noted below, Sayedee was sentenced to death on two counts - though he was convicted in total of 6 other offenses (for which the judgement gave no sentence). Below are the allegations for the two counts, as set out in the judgment, for which he was given the death penalty

Count 8: 'Killing of Kutti and setting fire on the houses of Hindu Community of Parerhat area)'

'140: That on 8th May, 1971 at about 3.00 p.m. under the leadership of accused Delowar Hossain Sayeedi and his accomplices accompanied with Pakistani Army raided the house of Manik Posari of village-Chitholia under Pirojpur Sadar Police Station and caught his brother Mofizuddin and one Ibrahim @ Kutti therefrom. At his instance other accomplices after pouring kerosene oil on five houses, those were burnt to ashes causing a great havoc. On the way to Army Camp, the accused instigated Pakistani Army who killed Ibrahim @ Kutti by gun-shot and the dead body was dumped near a bridge, then Mofiz was taken to Army Camp and was tortured. Thereafter, the accused and others set fire on the houses of Hindu Community at Parerhat Bandar causing huge devastations. The acts of looting goods and setting fire on dwelling houses are considered as persecution as crimes against Humanity on religious ground. The accused directly participated in the occurrences of abduction, murder and persecution which are identified as crimes against Humanity.'

Count 10: 'Killing of Bisabali and burning 24 houses of Hindu para of village Umedpur'

168. That on the same day i.e. 02.06.1971 at about 10.00 a.m. under the leadership of accused Delowar Hossain Sayeedi with his armed associates accompanied with Pakistani Army raided the Hindu Para of village-Umedpur under Indurkani Police Station the accused burnt 25 houses including houses 79 of Chitta Ranjan Talukder, Jahar Talukder, Horen Tagore, Anil Mondol, Bisabali, Sukabali, Satish Bala and others. At one stage Bisabali was tied to a coconut tree and at his insistence Bisabali was shot to dead by his accomplice. The act of burning dwelling houses of unarmed civilians is considered as persecution. The accused directly participated in the acts of burning houses and killing of Bisabali which is persecution and murder within the purview of crimes against Humanity.

TUESDAY 16 SEPTEMBER

11.35 pm: Judgement delivered on 28 February 2013
You can read and download the full trial judgment from here

11.25 pm: What happened in the case of Abdul Quader Molla
Tomorrow's judgment by the appellate division will be its second regarding an appeal from the International Crimes Tribunal. The first one involved Abdul Quader Mollah - and it might be worthwhile looking at what happened in that case.

- On 5 February 2013, Molla was convicted by the International Crimes Tribunal of five out of six charges involving crimes against humanity and was sentenced to life imprisonment.
- Following large protests at Shahbag in Dhaka against the failure of the court to impose a death sentence, the government changed the law allowed the prosecution to appeal against a lenient sentence,
- On 17 September, the appellate division passed a 'short order' in which it ruled that, in relation to one offence, Molla should be given the death penalty.
- On 5 December, the appellate division judges signed the full written judgement.
- In the evening of 10 December, the family of Molla was brought to the jail to say goodbye to him for the last time, but the defence lawyers managed to stay the hanging until the morning when a bench of the appellate division would hear arguments
- On 11/12 December, the defence argued that the accused had a right to seek a review of the judgment, and set out why the appeal judgement should be put to one side. The appellate division dismissed the arguments, without passing any reasoned order.
- On 12 December, the execution took place.

You can read about the detail of events on 10/11/12 of December 2013 on this rolling blog published at the time

10.25 pm: What will happen tomorrow
It is likely that the court will pass a 'short' order - that is to say it will read out the operative part of its decision.

The short order could either:
(a) allow the defence appeal - in which case Sayedee would be wholly acquitted on all charges
(b) dismiss the defence appeal - in which case Sayedee's death sentence on two charges would be upheld.
(c) partly allow the defence appeal, and set out, those charges where the appeal has been allowed.

The court may also, possibly have a written judgment ready, in which case this would be made available (though unlikely to be read out).

Assuming the defence lose the appeal at least in relation to one of the two charges on which Sayedee has been sentenced to death (so that the death penalty stands), what happens next?

If the court has a written judgement ready, then the jail authorities have the power to put Sayedee to death - though this is possibly subject to the right of the defence to seek a review application of the judgement (more about this later). If the court does not allow a review application to be filed, then Sayedee can could be hung within a few days (assuming the jail code does not apply).

If there is no written judgement, it seems to be the case that no death penalty could be imposed until this had been completed.

9.45 pm: Index of proceedings
The trial of Delwar Hossain Sayedee was the first to start at the International Crimes Tribunal, and this blog covered it closely. In the course of the next 24 hours different parts of the proceedings are likely to be referred to, but for those who want to read about the pre-trial proceedings, the witness evidence etc in detail, you can look at these two pages which provide indexes of the proceedings, and links to all the relevant pages

- Pre-trial and trial proceedings (witnesses etc)

- Post-witness trial proceedings (closing arguments, re-trial applications, Skype scandal etc)

9.30 pm: Cause list
Item number 1 on Wednesdays' cause list for one of the benches of Appellate Division is the matter of the appeal regarding Delwar Hossain Sayedee's conviction for crimes against humanity during the 1971 war.

The court begins around 9 am, and this will be the first matter dealt with.

Sayedee was convicted by the International Crimes Tribunal for 8 out of the 20 offenses for which he was originally charged. In relation to two of these convictions, he received a death penalty; the court did not impose any sentence for the other six convictions.

The court will decide on:
(a) the defence appeal that Sayedee should be acquitted on all charges
(b) the prosecution appeal that the tribunal should have sentenced Sayedee in relation to all the convictions imposing a death penalty for all counts.

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-50245894960864561722014-07-08T14:57:00.002+06:002014-07-21T06:30:10.407+06:00Adjournment
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.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-66493510788440158422014-07-06T11:34:00.001+06:002014-07-06T11:34:49.131+06:00Hearing 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

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-86096148697552047322014-06-25T11:55:00.003+06:002014-06-25T13:51:23.845+06:00The 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.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-67599940172348341842014-06-06T15:43:00.000+06:002014-06-07T02:25:56.212+06:00Bangla 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.

The 'story'!
So what is the Bangla Tribune's story? It is titled, 'Bergman is not the Director of the War Crimes Files.'

For those who don't know, the War Crimes Files is a one hour documentary broadcast on British television in 1995 which alleged that three men, then living in the UK, were as members of the Jamaat-e-Islami or its student wing, involved in war crimes during the 1971 independence war of Bangladesh.

The Bangla Tribune article goes onto say that the credits at the end of the documentary show that Howard Bradburn is the 'director', and I am the 'reporter'. The article adds that I failed to mention Bradburn's name when I was interviewed on the BBC Bengali service and when I wrote an article for New Age about the research for the film. It also says that a number of websites state incorrectly that I am the Director of the film.

Yes, that is it guys – the extent of the exclusive investigation by Bangla Tribune.

In this slightest of slight articles, there is of course included – which is no doubt the only reason why Bangla Tribune decided to publish this absurd piece in the first place - various nasty insinuations about me.

First that my role in the making of the film was not that significant;

Secondly that I have misled people into thinking that I was the director of the film, and failed to publicise Howard's role as Director.

And thirdly suggesting that my views about accountability for those who committed crimes during the 1971 war have changed entirely from the time when I made the film

My role in the film

It is embarrassing that I have to respond to this nonsense - but since there will be people out there who may believe these nasty insinuations, I suppose it is best to set the record straight.

First, what was my role in the making of the film? I describe a little about the background to the researching of the film in this article. Gita Sahgal (who became the producer of the film) and myself came up with the idea to make a film, and then over a nine month period, I was responsible for undertaking the research and investigation, and supervising a team of local journalists who worked with us. Howard Bradburn, the director was brought in after the journalism was completed to direct the filming, and to work on its editing. When the film won a Royal Television Society Award in London, Twenty Twenty Television (the production company that made the film) asked myself and Gita to go up to collect the award.

There were of course a lot of significant roles played by people other than myself, Gita and Howard in the making this film – as the film credits make clear. These include the camera men Ranjan Palit and Mishuk Munir, the sound man Tim White, the editor Tony Robinson, and the Executive Producer Claudia Milne, and of course ten Bangladesh researchers.

Anyone can see the names of these people by looking at the end credits of the film – and of course the film is widely available in Bangladesh. Someone has put it up on YouTube, it gets broadcast on Desh TV quite regularly, it has been aired on BTV, and it is sold at some video shops in Dhaka, as well as at the Liberation War Museum. Nothing is secret or hidden.

There is of course nothing that I have ever written or ever said which could in any way suggest I have misled anyone about my role in the film. And for or all its nasty insinuations, the Bangla Tribune article can't find one instance.

Howard Bradburn, the Director
Secondly, there is my supposed failure not to mention Howard's name. That is of course not true. Anyone who talked with my about the actual process of making of the film, rather than the researching of the documentary, would have heard me talk about Howard Bradburn. His role as director was very public, there was no secret about it. He did an excellent job. The ultimate product was a team effort.

The article points out that I did not mention Howard's name when the BBC Bangla service did a profile interview about me. It is correct when asked at one point in the interview about how the film came about, I did not mention any other person's name. Well, it would have been very odd had I mentioned the names of different people involved in the film - and I am sure if I had done so, the BBC would have edited it out. I was not asked, 'Who did you make the film with?', in which case I would have mentioned Howard's name. I was not collecting an award where I was supposed to thank people!

The Bangla Tribune also said that I did not mention Howard's name in an article I wrote for New Age. Again, it would have been rather odd if I had. This was an article about the research and investigation behind the film - how the journalism was put together. And, as I said, Howard was not involved in this part of the film-making.

Support for War crimes trials and accountability
The article contains a quote by Sharier Kabir – that appears unrelated to the rest of the article – stating that I had once 'talked strongly on behalf of war crime trials' but now my 'position has changed.'

This is totally untrue. It is completely wrong to suggest that, since the making of the war crimes trial, I have changed my views about the necessity of holding trials of those alleged to have committed crimes during the 1971 war. Nowhere will Sharier or anyone else find in any of my writings or my public comments about the trials anything other that support for criminal accountability for crimes committed.

More to come?
Anyway, I think we can expect more slimy articles from the Bangla Tribune about me.

When Faisal Abdullah first e-mailed me with questions, he included, can you believe it, a whole lot of questions about my life 30 years ago! So, lets see what is next on the horizon

However, any more of these kinds of articles will simply act to discredit this news website.

The article ends by saying:

'The documentary 'War Crimes File' which has now became a part of Bangladesh's history could be viewed as an important document for the war crimes trial.'

Yes, that is right. What Bangla Tribune appears not to want to acknowledge, however, is that I was the person who was in charge of the research and journalism, standing up the allegations against the three men, and asking the questions to interviewees throughout the filming. I suggest that they need to come to terms with that.

-------------------

Below is a scratch translation of the article

 Bergman is not the Director of War Crimes File!

The Bangla Tribune Report

David Bergman became a topic of discussion in Bangladesh by creating the documentary 'War Crimes File', which was published in the year 1995. It has been mentioned in many online sources that, David Bergman is the director of this documentary. It has been found by the investigation of The Bangla Tribune that, Howard Bradburn was the director of the documentary "War Crimes File" and David Bergman worked as a reporter in it. Was Bergman a director or reporter? This question comes up after seeing the information in his personal blog profile. Bergman mentioned in his personal blog that he was 'involved' with this documentary. He mentions in his profile that, (in English) "In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Independence"

War Crimes File
 Most of those who were involved in war crimes in the year 1771 were living in the United Kingdom. On this issue, with the help of London based channel Four and Twenty Twenty Television, the documentary 'War Crimes File' was made. The documentary, which was made by collecting different information against the accused war criminal Chowdhury Moinuddin, was telecasted on Channel Four on 3rd May 1995.

During that time by the lead of Shaheed Janani (mother of martyrs) Jahanara Imam, the people of Bangladesh was becoming aware about war crimes. It is assumed that due to this reason the documentary 'War Crimes File' created a different feeling among the supporters of Liberation War. During that time David Bergman became a topic of discussion. He came to Bangladesh to create this documentary. He took help from the young journalists of that time to assist the research work.

Information on Director Bergman
 David Bergman is identified as the director of the documentary in the online archive of the website 'Genocide Bangladesh' (http://www.genocidebangladesh.org/?p=542) ,which is on the Liberation War of Bangladesh.

On such kind of misinformation Bergman told The Bangla Tribune that, 'You can ask the authority of the website genocidebangladesh.org, why they published this information. I never said that I was the director of that documentary'. 'Though Howard played a very important role in filming and editing the documentary, but he was not related to the research, investigation, publicity, and making of the documentary. Maybe for this reason his relation with the documentary didn't get recognized. It is very sad, because his role was really important.

Why is there wrong information in such an important website that contains the information about the Liberation War? On this issue Salim Samad, the advisor of the website Bangladesh Genocide, informed The Bangla Tribune that, everyone tries to uphold the right information. It is an archive. Many people take information from it. In that case, such faults should not be left out. Shushanto Dash Gupta, one of the entrepreneurs of Bangladesh Genocide Website told Bangla Tribune that, we came to know from another source that David Bergman was the director of this documentary. If the information is wrong, then after proper verification it will soon be corrected. Not only the website Genocide Bangladesh, but also in Wikipedia; which is a popular online search engine; it is included in the biography of David Bergman that he was the director of the documentary "War Crimes File". Also, in a video uploaded in YouTube by the 'War crime BD' channel, Bergman was mentioned to be the director.

In the end of the documentary 'War Crimes File' in the credit lines, along with the ones who were involved, it was included that Bergman worked as a reporter. And Howard Bradbun was mentioned as the director. Yet, the name Bradburn remains unknown to the people of Bangladesh. It was not heard that David Burgmen ever mentioned the name of the director anywhere.

Even, on 23rd December 2013, in an interview of BBC Bangla, Bergmen replied to a question related with the issue that, 'once while talking to a friend, I came to know that someone from the East London Mosque was involved with the war crimes of Bangladesh. I did not know about Bangladesh that much ……… I began to gather information about the matter. After researching for a while I thought that it might turn out to be a good report. Right at that time I got a fund from Channel Four to make a documentary. That's how I came to Bangladesh. I made this documentary with the help of the local Bangladeshi journalists. I was here for six months then."

Even here, Bergman did not mention the name of Howard Bradburn.

Other than that, The Bangla Tribune made contact with Bergman through e-mail. In reply to a question in the e-mail, he sent a link of his own article "Tracking down the killers", which was published in the Daily New Age on 8th November 2013. In that write up, though many people were mentioned, he did not mention Howard Bradburn anywhere.

But Bergman told The Bangla Tribune that,

"Howard Bradburn was the director of the film ['The War Crimes File'], meaning that he was in charge of directing the filming and the editing of the film. Howard was at that time an experienced film maker, and I am sure he subsequently became an even more experienced one..

Then who is this Bradburn? When asked about Bradburn, Bergman kind of avoided the information and replied that, you can search Howards name in Google. You will find information about him and his films.

The journalist Julfikar Ali Manik was questioned about the misinformation in all the important sources regarding 'War Crimes File'. He worked as an assistant along with the research team in this movie. According to Manik, the name that has been mentioned in the credit line is the actual director. Bergman worked as a reporter there. Other than, as far as I know, Bergman never claimed himself to be the director.

Manik also added that, it is their fault who introduced Bergman as the director of the documentary to the media.

On this issue the chairmen of Ghatak-Dalal Nirmul Committee Shahriar Kabir said that, Bergman was in the lead role behind making this documentary. Though he was a reporter his contribution cannot be denied. But later on he turned 180 degrees around.

Shahriar Kabir added more about Bergman that, 'we took interview of Bergman in the documentary 'War Crime 71'. Then he talked strongly on behalf of war crime trials. But now his position has changed.'

There was an allegation that, the outlook that he had on the trial and accountability of those who committed war crimes in 1971, has changed. Denying this, David Bergman informed that, he supported their accountability when the documentary was being made and he still does.

After the investigation of Bangla Tribune the wrong information became visible which was never taken for correction. The documentary 'War Crimes File' which now became a part of Bangladesh's history could be marked as an important document for the war crimes trial. So, everyone feels the importance of presenting Howard Bradburn as the director of the documentary "War Crimes Files" in all the references and sources"

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-39228151458688893332014-04-25T20:29:00.001+06:002014-04-26T17:45:55.643+06:00Tribunal's written order: 'Contempt proceedings commenced'

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

To see the statement given immediately after the oral order was given in court, see here

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.

The opposite party entered his appearance by engaging Mr Mustafizur Rahman Khan, the learned counsel who in his turn submitted explanation detailing his position and countered with the allegation so made by the applicant. He submits that post judgment criticism is permissible if it is done fairly, in the interest of public and in sober language. On the issue of 'death figure in 1971' as focused in his first article the opposite party simply portrayed some sources and thus insisted an ending of debate on this issue. This article was circulated on 11.11.2011 after the indictment order on Sayedee's case was passed. However the opposite party expressed regret as the issue touches the emotion of the nation. The opposite party has just endeavored by his criticism to enable the Tribunal in developing its jurisprudence. The learned advocate for the opposite party also submits that the two other articles reflect merely academic and fair criticism on judgment delivered. Besides, the comment so made questioning the 'judicial manner' in one of alleged articles has already been deleted from the blog.

Though not asked for, the applicant has also come up with a reply against the said explanation of the opposite party. Mr Mizan Sayeed, the learned advocate for the applicant submitted that the way the opposite party criticized the judgment of the Tribunal-2 was not fair. Again creating controversy by questioning the 'death figure in 1971', the opposite party has caused grave hurt to the emotion of the nation and also belittled the authority of a court of law in penning its criticism on this historically settled issue. It has been further submitted by the learned advocate for the applicant that in addition to making deliberate criticism on sub judice matter the opposite party exceeds limit in making post judgment criticism by undermining the lawful authority of the tribunal. Moreover, mere subsequent deletion of a comment made in the third article does not absolve the opposite party of being prosecuted for his contempible acts, for upholding the image, authority and dignity of the Tribunal and its affairs.

We have heard the parties at length, perused the material on record and considered the submissions so advanced by the learned counsefs of the contending parties.

We have also meticulously perused the contents of the comments/criticism so annexed by the applicant in its application that posted in the personal blog of the opposite party on 11.11.2011 and 28.01.2013, his explanation supported by annexure thereof to which we have given our anxious thought. However, we are not convinced with the explanation so set out by the opposite party. Rather we are in agreement that the conduct and attitude of the opposite party by making above comments prima facie appear to have tended to bring the authority of the Tribunal and administration of the law into disrespect or disregard that have the potential effect of lowering the Tribunal's repute and thereby undermining public confidence in the administration of justice.

We are 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. Thus the proceeding under section 11(4) of the Act is hereby commenced against Mr David Bergman, the contemnor.

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 and judgment of the Tribunal by circulating/posting criticism in his personal blog namely bangladeshwarcrimes.blogspot.com on 11.11.2011 and 28.01.2013 that constitute contempt of the Tribunal.

Let the matter by fixed for further order on 11.05.2014

Since both the parties are present in the Tribunal and the order has been passed in their presence no separate notice is required to be be served upon the contemnor.

Justice Obaidul Hasasn, Chairman
Justice Md Mozibur Rahman Miah,Member
Justice Md Shahinur Islam, Member

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-28494896554078800592014-04-17T17:38:00.000+06:002014-04-25T22:06:14.411+06:00Statement 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)

The applicant who brought this matter to the attention of the tribunal nowhere stated in his application what inaccuracies he claims I have been made in these articles, and has simply made wide and general allegations. The court in its order today has also not identified which particular parts of the articles they consider to be 'prima facie' in contempt.

I will be vigorously contesting the claim by the tribunal that these articles are in contempt of court - though without any specificity to the allegations, defending oneself is difficult.

I am also very concerned that I will have no right to appeal against any conviction for contempt, as the International Crimes Tribunal does not provide any right to appeal in such cases. This is a breach of ordinary standards of justice, where a right of appeal is required.

To see full written order made available on 23 April, see here

Please also see:
Explanation to tribunal
Further response to tribunal
David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-41892793453981781222014-04-16T08:43:00.000+06:002014-04-20T14:24:44.437+06:00Further 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,

-  The written 'explanation' of alleged criticism filed with the tribunal

- Summary of notes of the proceedings that took place on 31 March 2014

(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).

THE OPPOSITE PARTY'S REJOINDER TO THE REPLY OF THE APPLICANT

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
___________________

D E P O N E N T
Mustafizur Rahman Khan
Advocate

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-40020626099749428992014-04-16T00:26:00.000+06:002014-04-20T14:25:06.367+06:00Hearing on 'explanation of criticism' - 31 Mar 2014
This is a summary of the proceedings which took place on 31 March 2014 in Tribunal 2 following the tribunal's earlier order which sought an explanation from me for alleged 'criticisms' in three articles contained in this blog some years ago. The relevant articles are here:

Sayedee Indictment - 1971 deaths (published on 11 November 2011),

Azad judgement analysis 1: in absentia trials and defence inadequacy (published on 26 January 2013) Azad judgement analysis 2: Tribunal assumptions (published on 26 January 2013).

The background to the proceedings can be seen here.

This hearing took place after the filing of a detailed 'explanation' of the criticisms contained in three articles. The written explanation, can be seen here – with an index to the key parts. Subsequent to this hearing, a rejoinder to the applicant's written response was also filed with the international crimes tribunal

At the end of the hearing, the court said that it would give judgment on 17 April.

Mustafizur Rahman Khan, counsel for Bergman, started the proceedings.

'Let me begin by expressing gratitude to this Hon'ble Court for seeking an explanation of the "criticisms", asking my client to provide an explanation before initiating any proceedings.

At the outset, before going into the details of the explanation, I would like to take this opportunity to set out certain issues.

First, the application refers to three blogs. One published on November 11 2011, which is more than two and half year ago. And the other two published in January 2013.

The point that I would like to make is that that these pieces were published a long time ago – one two and half years, the other over a year ago. During that period these three blogs have been widely read including by the investigators and the prosecutor – since links to these blogs are sent to them.

During this period, until this applicant filed this case, he has not contacted Mr Bergman at all about any reservations or objections he has about the content of these blogs.

Mr Bergman is open to criticism, and if you have a look at the blog relating to the 1971 deaths you will see that it notes that it was amended on 20 March 2013 which was done in response and respect to comments that he received.

However, I would reiterate this applicant has not made any contact with the opposite party – before filing a contempt application.

I say this into order to note that there appears to be an extraneous motive behind this applicant filing this application. If his concern were solely with what he sees as objectionable comments, he had ample opportunity to first seek correction, which he did not take.
Mustafiz then went to read out parts of the 'explanation' and started to read out parts. He read out paras 6, 7 and 8.

6. That the opposite party reaffirms that any comments or criticisms he has made about the on-going trial process in his articles and blogs have been made bona fide and in good faith, and are directed at seeking improvements in the trial process, understanding that if the process was not above reproach, and did not meet the standards which the Government of Bangladesh and the Hon'ble Tribunal have themselves asserted and sought for the process, they would be vulnerable to attack by those who deny and obstruct the process of accountability, and that it would not be healthy for a living breathing criminal justice system seeking popular support and legitimacy to be put beyond any comment.

7. That the opposite party earnestly and respectfully prays that, bearing in mind the allowances of fair criticism permitted by the law, the Hon'ble Tribunal will view the blogs in the above context and will also appreciate that permitting third party applicants with no interest or involvement in the trial process to seek orders to stifle legitimate and fair comment made in good faith about the Hon'bleTribunal's proceedings and with no intention of disrespecting the Hon'ble Tribunals, will be detrimental to the trial process.

8. That on the basis of reported judgments of the Hon'ble Appellate Division of the Supreme Court it is submitted that it is relevant to consider the background of any person who makes comment on judicial proceedings in order to assess the fairness of such comment ...
He said that para 7 set out the gist of the substance of the response.

After reading out para 8, concerning David Bergman's background in particular his involvement in investigation and documentation through research for the War Crimes File, which was part of the evidence in the case against Chowdhury Mueenuddin and was relied upon by this Honb'le Court, Mustafiz said:

We will consider the Mahmudur Rahman case later, in which the Hon'ble Appellate Division has clearly stated that fair criticism is allowed and is a defence to an allegation of contempt and that in considering this, one should take into account the background of the person who made the comments. In the application, it was stated that Bergman had 'no background in law' which we will show is in fact not correct. In fact, it is stated in a previous tribunal order of 19 Feb 2012 (involving a previous contempt case) that Bergman does have a background in law.

I also want to bring to the Court's attention, another part of the earlier Tribunal [No. 1] order which stated that: 'We believe he will be more careful in future and try to help the Tribunal in reaching to its goal of holding fair trial by his valuable reports and comments.' This shows that the tribunal was confortable with criticism and comment about the the proceedings
Mostafizur Rahman Khan then read out para 9 which sets out Bergman's relevant academic and professional background.

He went on:

The allegation is that these three articles are contemptuous – however the applicant has not said which specific statements in these articles are contemptuous. He has not shown how any specific part of the articles is in breach of article 11(4) of the International Crimes Tribunal Act.

In the absence of any specificity in the application, we have set out an explanation of all alleged criticism contained in the blogs.
He then began to read out the explanation relating to the first blog concerning the number of deaths in 1971 set out in the written application. See para 11 of the written application here

He noted that Bergman used the mention of 3 million dead in the Tribunal order to allow for a discussion of the basis on which the figure was arrived at and the different academic commentary on this.

The Judges then asked several questions including the following: 'What prompted him to write this blog?'; 'Why did he create this controversy?'; 'Why did he write this in the name of fair criticism, in light of the previous order against him'. 'Why did he write about this issue at this time, after the Sayedee judgment'?

Mustafiz made the following points:

- that the date of this blog was 11 Nov 2011, which was before the date of the Hon'ble Tribunal's previous order (Feb 2012) relating to the previous contempt application.

- The trial had not started – in fact the order which was being commented on was the charge-framing order,

- This article represents a legitimate academic discussion

- The law allows fair criticism, and criticism assumes a note of disapproval and whether it is fair or not depends on a number of issues, including the accuracy of the content, the kind of language used, the background of the person who wrote it – and that in this context, the article did not contain any factual inaccuracy and used sober language
One of the judges then said, 'Is it not uncalled for' . Mostafiz disagreed with this noting that the article was a discussion of a legitimate issue.

One of the judges referred to the use of the words 'like a mantra' by Bergman in referring to the use of the '3 million dead' in another of the three blogs about the 1971 war death figures. The lawyer said that Bergman has since amended this phrase, noting that he regrets its use.

In relation to the 3 million figures, Mostafiz said that Bergman understands that the 3 million figure is sensitive – and that he indeed mentioned this in his blog – but that does not mean that it cannot or should not be discussed. It is an 'issue of debate' and discussing this does not involve contesting it or denying the enormity of the crimes committed during the liberation war, or the sufferings experienced by those who were victims of these atrocities.

The lawyer further stated that the blog does not go beyond the limits of fair criticism and may be considered to be nothing more than fair criticism of one or two statements of the Tribunal.

He said that the applicants were responding to the issue of 3 million in an emotional manner. And that he understood this since the number has become part of Bangladesh history and culture – but nonetheless emotion should not get in the way of legitimate discussion of the accuracy of the number.

The Hon'ble Tribunal then said that the figure of three million had now been settled by the Appellate Division in the Quader Molla case, and Mostafiz pointed out that this blog was in fact written before that judgment. If raising questions about the figure of three million dead is 'contemptuous' following the Appellate Division's judgment in the Kader Molla case, then all the other books, such as that by Bangladesh's first Foreign Secretary, his biography of Bangabandhu, that criticize or question the 3 million figure should also be considered in the same way, and be subject to contempt proceedings, he said.

The presiding Judge then asked to hear the other side.

Mostafiz asked however if the Court would hear submissions about the issues in the other two blogs that the applicant had claimed were contemptuous. The Presiding Judge asked what those issues were, and Mustafiz summarized the matters.

He said that one criticism related to the way in which the Hon'ble Tribunal had referred to the issued of holding in absentia trials in the context of international standards. He said that in its judgment the Hon'ble Tribunal referred to the Statute relating to the Court in Lebanon which allowed in absentia trials – but did not mention that the Lebanon Statute allowed in absentia trials only if the accused can subsequently seek a re-trial – which is not the case in the Bangladesh International Crimes Tribunal.

The lawyer said that another criticism made by Bergman involved the the placing of findings in the judgment which were placed before the discussion of the evidence). The presiding Judge stated that such comments could be made.

One of the judges then asked Mostafiz to clarify the status of Bergman in Bangladesh, and the lawyer said that he would have to seek instructions on that matter. Subsequently the court was told that he was in Bangladesh on a no-visa required status, and was employed at New Age newspaper

Applicant's lawyer
One of the applicant's lawyers, Mizan Syeed, then responded.

Mizan Syeed first of all read out Article 11(4) of the ICT Act. He then pointed to particular case law and said that these blogs reduced the 'dignity and honour' of the Hon'ble Tribunal.

He said that that the case law says that you need to look at the articles as a whole to determine whether they are in contempt.

He then referred to section 19(3) of the ICT Act which states that: '(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.'

He said 'evidence in these situation was therefore not required.' He said that the Tribunal had taken judicial notice of three million dead and therefore no evidence to prove it was required.

He said that the fact of 'three million dead was a settled matter'

He argued that 'the criticism was not fair as it failed to take into account this provision. It is part of world history.'

One of the judges asked how this dishonours the Tribunal and the lawyer said that this it did and was contemptuous. He said that Bergman repeatedly said that this was not a fair trial.

One of the judges said, 'Fair criticism is also welcome'.

The lawyer than pointed to one of the blogs with a subtitle, 'making judgments without evidence', and said that Bergman was a 'habitual contemnor – this is not the first time.'

'This man from a foreign country is teaching us jurisprudence. Criticism, criticism, criticism. He is not impartial.'

He then referred to a part of one of the blog which stated that, 'It is very odd to position these two paragraphs in the introduction of the judgment and prior to a discussion of the adjudication of the evidence. Unfortunately, it gives the appearance that the tribunal has pre-judged the accused.'

Is this fair critcism or not? the lawyer asked.

He then read out a section from the Tribunal-1's earlier decision relating to contempt, and said that that the first time he was accused of contempt, Bergman was not punished but seriously cautioned.

The Court fixed 17 April for delivering its order.

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-29077530058043092602014-03-27T09:48:00.000+06:002014-04-20T14:25:23.949+06:00Explanation to the tribunal over alleged criticism
On 23 February 2014, the International Crimes Tribunal 2 issued an order seeking an 'explanation' about criticism of the tribunal contained in three posts in these blogs. The particular blog posts are as follows: Sayedee Indictment - 1971 deaths (published on 11 November 2011), Azad judgement analysis 1: in absentia trials and defence inadequacy (published on 26 January 2013) and Azad judgement analysis 2: Tribunal assumptions (published on 26 January 2013).

This notice was issued following an application made by a lawyer seeking punishment for contempt, and closure of the blog.

On 18 March 2013, an explanation was filed, and the court then set 27 March (today) as a date for a hearing on the explanation to take place. This has now been adjourned until 31 March (Monday)

Below is text of the explanation which was filed with the court one week ago, and about which there will be an oral hearing today.

To read section explaining article on 1971 deaths (para 11)
To read section explaining first article on Azad judgement (para 12)
To read section explaining section article on Azad judgement (para 13)
To read concluding section (para 14)

BEFORE THE INTERNATIONAL CRIMES TRIBUNAL NO. 2, DHAKA
ICT-BD MISC. CASE NO. 01 OF 2014
IN THE MATTER OF:
Abul Kalam Azad … APPLICANT
-V E R S U S-
David Bergman … OPPOSITE PARTY

THE OPPOSITE PARTY'S EXPLANATION AS REQUIRED BY THE HON'BLE TRIBUNAL'S ORDER DATED 20.02.2014

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 and therefore, being conversant with the facts and circumstances of the case, I am competent to make this statement.

2. That I have received a copy of order No. 2 dated 20.02.2014 passed by the Hon'ble Tribunal on 23.02.2014 together with a copy of the Application and annexures thereto (collectively 'the Application') filedby the Applicant in the above case. I have gone through the contents of the said order and understand that it directs me, the opposite party, to "explain the criticism allegedly .. made in [my] blog on 11.11.2011 and 28.01.2013".

3. That the opposite party is hereby submitting this explanation in compliance with the said order dated 23.02.2014 in order to explain the alleged criticism of the Hon'ble Tribunal contained in three posts/articles published by the opposite party in his blog titled "Bangladesh War Crimes", one on 11.11.2011 and two on 28.01.2013.

4. That the opposite party, by way of this affidavit, is setting out this explanation under reference as directed by the Hon'ble Tribunal. This explanation is not intended to be, and it is respectfully submitted that it may not be construed either, as a statement controverting the application filed by the Applicant or as a reply purporting to show cause as to why contempt proceedings should not be drawn against the opposite party, as the Hon'ble Tribunal has not required any such statement or reply but has simply directed that an explanation be made.

5. That at the outset, the opposite party would like to assert clearly that he is deeply and fully conscious of the widespread nature of the international crimes and atrocities committed by the Pakistan military and their collaborators during the 1971 war of liberation, and the terrible grief and suffering faced by the families of those who died, and that he is on the record throughout the last twenty years as having fully supported the process of seeking legal accountability for these crimes through a trial process.

6. That the opposite party reaffirms that any comments or criticisms he has made about the on-going trial process in his articles and blogs have been made bona fide and in good faith, and are directed at seeking improvements in the trial process, understanding that if the process was not above reproach, and did not meet the standards which the Government of Bangladesh and the Hon'ble Tribunal have themselves asserted and sought for the process, they would be vulnerable to attack by those who deny and obstruct the process of accountability, and that it would not be healthy for a living breathing criminal justice system seeking popular support and legitimacy to be put beyond any comment.

7. That the opposite party earnestly and respectfully prays that, bearing in mind the allowances of fair criticism permitted by the law, the Hon'ble Tribunal will view the blogs in the above context and will also appreciate that permitting third party applicants with no interest or involvement in the trial process to seek orders to stifle legitimate and fair comment made in good faith about the Hon'bleTribunal's proceedings and with no intention of disrespecting the Hon'ble Tribunals, will be detrimental to the trial process.

8. That on the basis of reported judgments of the Hon'ble Appellate Division of the Supreme Court it is submitted that it is relevant to consider the background of any person who makes comment on judicial proceedings in order to assess the fairness of such comment and hence the opposite party states as follows:

9. (a) The opposite party obtained an LL.B degree in Law and Politics in 1986 from Birmingham University, and an LL.M. Degree with Merit in 1990 from the London School of Economics in the United Kingdom where he took course in amongst other, International Human Rights Law, and Law and Society in South Asia..

(b) The opposite party was professionally engaged in journalism and writing and published occasional articles on legal issues focusing on workers' rights in the British press including the reputed daily newspapers,The Guardian and The Independent, as well as The New Statesman, New Law Journal and Legal Action.

(c) The opposite party also worked as a researcher, and then producer, at Twenty Twenty Television, a production company producing documentaries for British Television including ITV and Channel Four. During this period he undertook research investigation for a documentary "The War Crimes File", broadcast on Channel Four in May, 1995. The documentary investigated three British-Bangladeshis, who were erstwhile members of the Jamaat-E-Islami and/or its student wing, against whom there were allegations of committing war crimes during the 1971 War of Independence. The documentary won a Royal Television Society Award ('Special Commendation') in 1996 in the Current Affairs Documentary category. Evidence and testimony obtained in the film was later used as evidence by the prosecution in its case before the Hon'ble International Crimes Tribunal No. 1 against Chowdhury Mueen Uddin, with interviews in the film mentioned a number of times in the Hon'ble Tribunal's judgment.

(d) From 1999 till 2009, the opposite party served as the Executive Director of the Centre for Corporate Accountability in UK, promoting workplace safety issues, during which time he wrote numerous official reports, including for the International Labour Organisation (ILO) on Bangladesh's Compliance with the Labour Inspection Convention.

(e) Since moving with his family to Bangladesh in 2004, he worked with a number of leading Bangladeshi media, including as Head of the Investigations Unit of the Daily Star; an Editor at bdnews24.com, and is currently Editor, Special Reports at The New Age and also makes freelance contributions to various international news media.

(f) For the past 18 years, the opposite party has had a continuing interest in issues involving the 1971 War of Liberation, beginning with his involvement in the making of "The War Crimes File" in 1995. The research by the opposite party for the documentary represented one of the first examples in Bangladesh of a detailed and objective scrutiny of specific instances of alleged culpability of particular individuals with war crimes during the 1971 War of Liberation. Dr. Meghna Guhathakurta, the daughter of Professor Jyotirmoy Guhathakurta killed on the night of the 25th of March, 1971, traveled to London specifically for the launch of the film. The film revived international attention and interest for the prosecution of individuals against whom there were allegations of perpetrating atrocities during the 1971 War of Independence, which were almost forgotten internationally at that time. The film was then launched in Dhaka by Projonmo Ekattor, the organisation of the children of those killed in 1971, at an event attended by a wide cross section ofindividuals, including writers, lawyers, journalists and human rights activists. The opposite party later returned to Bangladesh to produce a Bengali version of the documentary with the assistance of Mr. M. Hamid, later the Director General of Bangladesh Television. The documentary was shown on Bangladesh Television and VCDs/DVDs of it were widely distributed in Bangladesh. A range of organisations, including the Ekattorer Ghatok Dalal Nirmul Committee, used the film as part of their campaign to seek the establishment of a Tribunal for the trial of those accused of war crimes in 1971, and formally recognized the contribution of the opposite party in this regard through an award issued to him.

(g) While in Bangladesh subsequent to the launch of the film, the opposite party assisted Projonmo Ekattor in the collection of affidavit evidence from key witnesses to alleged war crimes, which were then sent to Scotland Yard for possible prosecution of the persons who were the subject matter of the film. Scotland Yard passed these affidavits on to the Government of Bangladesh through the Bangladesh High Commission in the late 1990s. During this period, the opposite party on a number of occasions met with the present Head of the Investigation Agency of the Hon'ble Tribunal, who at the time was senior official of the CID of the Bangladesh Police, to assist him in his inquiries.

(h) It is respectfully submitted that the above shows that the opposite party has continuously supported endeavours to ensure justice for victims of war crimes perpetrated in 1971. After the December 2008 elections, when the Government first considered steps to establish the Hon'ble Tribunal, the Bangladesh Law Commission carried out a consultation on proposed amendments to the International Crimes (Tribunal) Act, 1973. Given his interest in the issue, the opposite party was amongst only four individuals who responded to the request of the Commission in making suggestions for amendments. Following considerable comparative research, the opposite party made a submission to the Law Commission, which expressly acknowledged this in its final report.

(i) After the establishment of the Hon'ble International Crimes Tribunal ('the ICT'), the opposite party had personally attended proceedings of the ICT on a regular basis and also wrote a blog on the internet, containing neutral summaries of the day-to-day proceedings. Following the beginning of the actual trial of Delwar Hossain Sayedee he hired researchers to provide notes on the proceedings which were posted on his blog. In the absence of publicly available transcripts of the proceedings, his blog, along with notes taken for another organization, the War Crimes Study Centre at the University of California in Berkley, in the United States of America, are as far as the opposite party is aware, the only publicly available accurate and detailed summary of the proceedings in a number of the cases, setting outthe arguments of parties, and enabling all interested members of the public who are unable to attend the proceedings to follow developments in detail. As well as the neutral daily summaries the blog also contains commentary on the process, the blog contains a total of 840 articles/post relating to the proceedings at the Hon'ble Tribunal.

10. That the application refers to the following articles/posts published by the opposite party in his blog:

(a) The article/post entitled "Sayedee indictment-1971 deaths", published in the said blog on 11.11.2011 a copy of which has been annexed as Annexure-"A" (pages 46 to 52) to the application.

(b) The article/post entitled "Azad judgment analysis 1; 'in-absentia' trials and defense inadequacy", which was published in the said blog on 26.01.2013 a copy of which has been annexed as part of Annexure-"A-1"(pages 58 to 63) of the application.

(c) The article/post entitled "Azad judgment analysis 2; Tribunal assumptions", which was published in the said blog on 26.01.2013 a copy of which has been annexed as part of Annexure-"A-1"( pages 58 to 63) of the application.

11. That in explanation of the criticism of the article/post entitled "Sayedee indictment-1971 deaths", which was published in the blog of the opposite party on 11.11.2011, the opposite party states as follows:

(a) The article looks at, among others, the available evidence about how many people were killed by the Pakistan Army and its collaborating forces during the Liberation War of Bangladesh in 1971.

(b) The article begins by referring to the order of indictment dated 03.10.2011 passed by the Hon'ble International Crimes Tribunal No. 1 regarding Delwar Hossain Sayedee, wherein it is stated that as a result of the actions of the Pakistan military and its collaborators, thirty lacs of people were killed, two lacs of women were raped and about one crore women, men and children had to take refuge in India whileten lacs of people were internally displaced.

(c) The article clearly acknowledges that raising any questions about the figure of thirty lacs of people killed in the War could provoke strong emotions.

(d) The article states that the Hon'ble Tribunal did not refer to any evidence or material to support the thirty lac figure, treating it as a historical fact.

(e) The article then states that though the thirty lac figure was treated as an "official" government figure, there was little evidence to support this, and reviews in significant detail some available information and material including interviews of well known writers/researchers who have been campaigning for war crimes trials, as well as other academics in the field of health, and demography.

(f) First, the article states that the figure became "official" after Bangabandhu Sheikh Mujibur Rahman, first President of Bangladesh, had announced it in a number of interviews soon after his release from Pakistan. It then refers to number of explanations given by others about how Bangabandhu came to mention this particular figure, including the view that he meant to say three lacs but mistakenly said three million (that is thirty lacs). In this regard, the opposite party referred to a letter published on 24.05.2011 in the British daily newspaper The Guardian by Mr Serajur Rahman, the retired Deputy Head of the Bengali Service of the British Broadcasting Corporation, a true copy of which as downloaded from the internet is annexed hereto and marked Annexure-"1".

(g) In this regard, it maybe noted that Mr.Serajur Rahman, who apparently differs with the Hon'ble Tribunal No. 1 regarding the figure of those killed in the 1971 War, is a recipient of the Ekushey Padak, the second highest National Award given by the Government of Bangladesh.

(h) The article also quotes from a biography of Bangabandhu, 'Sheikh Mujib: Triumph and Tragedy' published in 2005 by UPL written by the first Foreign Secretary of Bangladesh, Mr Sayyid A. Karim. At page 297, he writes that "Mujib claimed shortly after becoming head of government that as many as three million Bengalis had been killed by Pakistani occupying forces during the liberation was. This was no doubt a gross exaggeration; the correct figure is likely to be around a million". In a footnote at page 302, he writes "Curious as to how the figure of three million dead had been arrived at, I asked someone in the Prime Minister's office about this. I was told that this figure was taken from Pravda, the organ of the Communist Party of the Soviet Union." A true copy of the relevant pages of the book by Mr Sayyid Karim, is annexed hereto and marked as Annexure-"2".

(i) In this regard, it appears that Mr Karim may have been referring to news agency articles quoting the Pravda report which were re-published in a number of newspapers in Bangladesh including The Bangladesh Observer which on 5 January 1972, under a headline titled 'Pak Army killed over 30 lakh people', referred to the Pravda report, which was quoted on para 82 of the judgment in the Golam Azam case. It should be noted that the Pravda article does not provide any basis for its estimate of 30 lacs and that it also stated that the Pakistani military forces 'immediately before their surrender to Mukti Bahinis and the Allied forces had killed about 8oo intellectuals in the capital city of Bangladesh alone' although the judgment of the Hon'ble Tribunal in the Chowdhury Mueen Uddin and Ashrafuzzaman case suggests that around 18 intellectuals were killed in Dhaka at that time.

(j) The article then mentions that Bangabandhu subsequently ordered an inquiry to get further information on the matter of the numbers of people killed in 1971, but nothing was published in this regard.

(k) The article also noted varying estimates about the numbers of persons killed in 1971. Referring to research by the Peace Research Institute of Norway published in 2002 which estimated the figure at 58,000, the blog noted that it has proven difficult to clarify the methodology for this research and it was unclear whether this low figure of 58,000 had any more basis in truth than the high figure of 3 million.

(l) The opposite party then referred to research by the Institute for Health Metrics and Evaluation at the University of Washington in Seattle and the Harvard Medical School (published in an article in the renowned British Medical Journal in 2008, titled, '50 years of violent war death from Vietnam to Bosnia: analysis of data from the World Health Survey Programme' which estimated that the number of dead in 1971 in Bangladesh was closer to 269,000, with figures ranging from 125,000 to 505,000, citing an analysis of World Health Organisation population surveys, and looking at sibling deaths. True copies of the relevant pages of the British Medical Journal report are annexed hereto and marked as Annexure-"3".

(m) The opposite party then referred to research by the Cholera Hospital (now ICDDRB) undertaken by George T Curlin, the noted public heath academic Lincoln C. Chenand Sayed Babur Hussain which was published in another renowned international journal "Population Studies" in March 1976 titled "Demographic Crisis: The Impact of the Bangladesh Civil War (1971) on Births and Deaths in a Rural Area in Bangladesh". The research involved determining the number of people who died in one area, namely Matlab, Comilla, in 1971 by comparing detailed survey data on this population taken by the Cholera Hospital in the years before the war as well as the year after. This research found that in Matlab, with a population of around 120,000 people, there were 868 "excess" deaths in 1971, with many resulting from war-related malnutrition and disease, rather than from killing. Extrapolating this data to the whole country, the research estimated that there would have been about 500,000 war-related deaths throughout the country. The article states that, "(t)he conflict undoubtedly had different impacts on different geographical areas within Bangladesh. Indigenous food production and the distribution of imported foods varied between one locality and another. Moreover, those areas containing large numbers of Hindus, the religious minority, or those in which fighting actually took place were more severely affected. Matlab Bazar thana was not at the extreme on any of these factors. However, it is unique in that the population was served by a diarrhoea treatment unit; this unit provided care to about 2,500 in-patients a year. The base crude death rate in Matlab Bazar of 15.3 per 1,000 is thus probably lower than in the nation as a whole, commonly estimated at 17.0. Withdrawal of diarrhoea treatment during the conflict could have led to a further increase in the death rate. Thus, the impact of the war in Matlab Bazar, while not representative of the nation as a whole, illustrates and reflects in a qualitative sense the consequences of the civil war. Accepting these limitations, it appears useful to estimate the probable overall demographic impact of the war on Bangladesh. Assuming a national population of 70 million in 1971-72 and the Matlab Bazar base vital rates, there would have been about 3.20 million births and 1.07 million deaths in 1971-72 in the absence of the war. The decline in the crude birth rate by eight per cent in 1972-73 suggested that there were approximately 260,000 births either averted or postponed by the conflict. With increases in the death rate in 1971-72 and 1972-73, of 40 and six per cent respectively, this implies an overall excess number of deaths of nearly 500,000. By any standard this was a major disaster."

(n) The research/article noted that such a generalisation had limitations, and that 500,000 could not in any way be said to be an exact figure. The opposite party referred to this caveat, but also pointed out that the research constituted a detailed neutral objective analysis of one particular rural population using data collected systematically before, during and after the war. A true copy of the article published in Population Studies in 1976 is annexed hereto and marked Annexure-"4".

(o) One of the authors of the said article, Dr Lincoln C. Chen, has recently in December 2012 been awarded the title of 'Foreign Friend of Bangladesh' by the Government of Bangladesh for his contribution to the birth of the nation..

(p) The said article also referred to an interview with Mr Mofidul Huq, the eminent writer and publisher, and Trustee of the Muktijuddho Jadughor, described in the blog as a "respected war crimes activist", who pointed out by reference to census data of 1969 and 1974 and an estimated growth rate of 2.8%,that the population of Bangladesh was supposed to be 8.01 croresin 1974 but was found to be only 7.64 crores, suggesting that the estimate of 30 lacs deaths in the Bangladesh genocide was not an exaggeration. With reference to this, and a similar analysis which was also referred to, the article set out demographers' concerns about the reliability of the 1974 census and pointed out that the gap in the figures could be explained by migration to India and a depressed fertility rate. The opposite party concludes that using estimates of population and poor census data (unlike the detailed house to house surveys undertaken by the Cholera Hospital) are not a good basis for making an assessment of the numbers of 1971 war deaths.

(q) The article then refers to the views of Dr. M.A. Hasan, the Convenor of the War Crimes Facts Finding Committee, who had stated in an interview that he considered that the real figure was closer to 12 lakhs but could be as high as 18 lakhs on the basis of average number of bodies recovered from identified mass graves and his extrapolations based on such numbers.

(r) Thus, the blog was based on objective materials, including interviews and comments of persons who are highly respected for their professionalism and dedication, and who considered the figure of 30 lacs to be accurate, as well as other researchers who suggested much lower figures. The blog then noted and totally discounted the estimates cited in both Sharmila Bose's book Dead Reckoning (referring to the numbers of persons killed as being no more than 50,000 to one lakh) mentioning that the particular research undertaken by Bose in her book did not allow her to make any conclusions about the numbers who died. The blog also referred to and dismissed the report of the Hamoodur Rehman Commission set up by the Pakistan Government under Zulfikar Ali Bhutto (referring to only 26,000 killed 'in action' by the Pakistan Army in 1971).

(s) Again, it may be noted that had the opposite party had any oblique motive in authoring his blog other than to make an objective and dispassionate analysis of the subject, he would not have so obviously disapproved of the Sharmila Bose estimate or the Hamoodur Rehman finding.

(t) The blog also discussed the figure of two lacs regarding the number of women raped in 1971, as stated by the Hon'ble Tribunal in its charge framing order. The blog stated that this appears to have been based on an estimate by an Australian doctor, Dr. Geoffrey Davis, who worked in Bangladesh from March 1972 for about six months. The blog then referred to an interview with the Bangladeshi/Australian academic, Dr Bina D. Costa, where she had questioned this number as being likely to be too "high" and had referred to the figure of 25,000 forced pregnancies to be correct and supported by the documents of the International Committee of the Red Cross which noted that at least 25,000 cases of pregnancy occurred from abduction, rape and force marriages during the [1971 Liberation] war.

(u) The concluding part of the blog headed "Do numbers matter?" unequivocally and clearly noted that the actual number of deaths in 1971 was not relevant to whether a particular accused before the Hon'ble Tribunal had committed the offences of genocide or crimes against humanity; and that whether 3 million, 300,000 or indeed even 30,000 were killed, the number of deaths in 1971 was very very large, which cannot be denied, and that there was enough substantiated evidence to suggest that whatever the exact number of deaths, a very large number of civilians were killed; but that it was also important for the sake of historical accuracy that one should not claim that a particular number of people died - whether it is too high or too low - which has no basis in evidence.

(v) In light of this explanation it is submitted that the alleged "criticism" of the Hon'ble Tribunal extended only to raising a question regarding whether the Hon'ble Tribunal's reference to 30 lacs deaths in 1971 was appropriate without reference to any supporting material particularly given the nature of available evidence and divergent views held by credible sources on the subject.

(w) It is submitted that these alleged 'criticisms' are no more than an academic analysis expressed in restrained and sober language and based on review of research studies and articles, and not expressed in sensationalist terms, and may therefore be considered by the Hon'ble Court to fall within the limits of fair comment on a judgment.

(x) It is further respectfully submitted that the subject matter of the blog article was in no way related to any substantive issue pending before the Hon'ble Tribunal, having been made even before any trial had commenced, and so was not in relation to any sub judice matter nor could it remotely or at all interfere with the administration of justice inasmuch as the figure of those killed in the War in 1971 was not a fact in issue in the trial.

(y) It is humbly submitted that though the application does state that the post/article contains 'wrong information and wrong analysis of facts', it does not state what information or analysis written in the article is in fact wrong. ' In this regard, the opposite party respectfully submits that the language used by the applicant to describe this blog post is misleading and false, in that there is nothing contained there which 'indiscriminately maligned the dignity and honour of the Tribunal by way of making derogatory comments', undermined 'the dignity of the members of the Tribunal and the people at large'. 'tends to bring the Tribunal or its members into hatred or contempt', or 'maligns the tribunal in the eye of right thinking people.' It is also submitted that it is false for the applicant to have suggested that the opposite party'recklessly and severely criticized the order,' in this article.

12.That in relation to the blog article entitled "Azad judgment analysis 1; 'in-absentia' trials and defense inadequacy", which was published in the blog of the opposite party on 26.01.2013, the opposite party states as follows:

(a) By way of setting a context, the blog begins with a reference to the reaction of Bangladesh's political establishment and civil society to the Abul Kalam Azad trial and judgment. The opposite party acknowledges in the article that the atrocities of 1971 have caused deep and searing suffering and that there is an obvious need for accountability. However, the opposite party also expressed his concern that individuals and organisations within the country who have always spoken out on rights issues and on injustices and in support of fair trial and due process, have not observed or commented on the proceedings before the Hon'ble International Crimes Tribunal, particularly in view of the controversy associated with the "Skype" issue as well as certain aspects of the trial of Delwar Hossain Sayedee, which are both matters of factual record. It should be noted that in setting out this context, and referring to the Skype issue (which was less than two months old at the time of writing) and the Sayedee trial, the blog provides seven 'hyperlinks' (i.e links which allow the reader of the blog to click on a sentence that goes to a new page on the internet ) to seven separate articles which set out the factual foundation for the views set out in the introductory context.

(b) The introductory part of the blog article expresses a need for being objective in any analysis of the proceedings before the Hon'ble Tribunal, particularly in view of the revelations associated with the "Skype" issue, which is a matter of public record.

(c) The blog then turns to analyse certain aspects of the Abul Kalam Azad judgment.

(d) First, under the heading "In absentia trials", the blog mentions that with reference to the Tribunal appointed defense lawyer's argument that such an in absentia trial was not valid, the Hon'ble Tribunal in its judgment rebutted such argument by pointing out that such trials are allowed by the United Nations supported Special Trial for Lebanon as well as endorsed by the European Court of Human Rights and the Human Rights Committee (the last in relation to communications under the International Convention on Civil and Political Rights). The opposite party commented that the statements in the judgment of the Hon'ble Tribunal were "misleading" because among others, they had not mentioned that Article 22(3) of the Special Tribunal for Lebanon statute specifically provides that in case of any conviction in absentia, if the accused did not have a designated defense counsel of his choice, he shall have the right to a retrial in his presence unless he accepted the judgment. The opposite party further pointed out that similarly, in the 2001 case of Krombac v France, the European Court of Human Rights had held that in absentia trials shall not be incompatible with the Convention as long as the accused has the right to subsequently seek a fresh determination of the merits of the charge from the trial court in his presence (set out in para 85 of the judgment) A true copy of the judgment is annexed hereto and marked Annexure- 5

(e) It is respectfully submitted that the blog post may be considered to be fair comment inasmuch as it is expressed in sober and restrained language and is factually based and that the courts/systems to which the Hon'ble Tribunal referred to above in justifying proceedings in absentia do in fact allow for retrial/redetermination in the presence of the accused convicted in absentia should the accused so seek, which the International Crimes (Tribunal) Act, 1973 does not. The opposite party used the word "misleading" in the ordinary sense of the word as found in the Oxford Dictionary of English (Indian Edition) (2nd Edition) where it is defined as "giving the wrong idea or impression" when used as an adjective. A true copy of the relevant page is annexed hereto and marked Annexure_6. In this regard, it may be noted that such adjective was used to describe the analysis contained in the Hon'ble Tribunal's judgment, and not to describe the Hon'ble Tribunal itself. It is also respectfully submitted that in relation to the trial of Chowdhury Mueen Uddin and Ashrafuzzaman Khan, the judgment of the Hon'ble Tribunal does not seek to justify this trials in absentia with reference to any international court or standard.

(f) The opposite party does, however, acknowledge, on the basis of legal advice received since receiving the notice of the above Miscellaneous Case, that the words "misleading" may have a different, more pejorative connotation in legal parlance in Bangladesh, which was far from what the opposite party intended when he used the words. Hence, the opposite party has edited the blog article to replace the words "very misleading" and "misleading" with the word "incorrect" and regrets and humbly begs to be excused for this expression.

(g) Regarding parts of the blog article, headed "Time to prepare" and "The lawyer's preparation", the opposite party stated in his blogpost that the comments here discusses the lawyer appointed by the Hon'ble Tribunal to represent Abul Kalam Azad in absentia and aspects of how he conducted the defence, including not seeking an adjournment beyond the three weeks initially allowed by the Hon'ble Tribunal as the minimum permitted by law in order to prepare for the case, and in terms of him not undertaking defense investigations, visiting the crime scenes and bringing defense witnesses. It is respectfully submitted that these comments do not reflect any criticism of the Hon'ble Tribunal itself.

(h) With regard to the fourth portion of the blogpost headed "Adequacy of the legal representation", the opposite party states that the legal representation of Abul Kalam Azad, while adequate in terms of the general practice of lawyers in Bangladesh, may not be considered adequate by international standards. It is submitted that such a comment, which has been expressed in sober and restrained language, and upon a reference to international treaties to which Bangladesh is a signatory, including the International Covenant on Civil and Political Rights, and observations on the matter by the UN Human Rights Committee, is within the limits of permissible criticism.

(i) In the concluding portion of the blog entitled "The appropriateness of the defense counsel", the opposite party commented that it may well have been inappropriate for the defence counsel, in this particular case, to have represented the accused due to his admitted political background. Again, it is respectfully submitted that these comments are directed at the defence counsel for his failure to disclose his political background before the Hon'ble Tribunal, and not at the Hon'ble Tribunal itself and to the extent that there is a criticism about the Hon'ble Tribunal appointing such a person, it is submitted that such criticism is fair in as much that the issue may well have had a bearing on the matter.

(j) It may be mentioned that the blog article has been published after the delivery of the judgment and not in relation to any sub judice matter.

(k) It is again humbly submitted that the application does not state what aspect of the blogpost was false or mistaken or where it referred inaccurately to sources or reflected any bias against the Hon'ble Tribunal. In this regard, the opposite party again respectfully submits that the language used by the applicant to describe this blog is wholly misleading and false

13.That regarding the blog article entitled "Azad judgment analysis 2; Tribunal assumptions", published on 26.01.2013, the opposite party states as follows:

(a) The article comments upon certain aspects of the introductory parts of the Hon'ble Tribunal's judgment inthe Abul Kalam Azad case.

(b) The first part headed "Making factual judgment without evidence" begins by quoting three portions of the introductory part of the judgment – two in a section called 'historical introduction' and another in a section 'Backdrop and Context', which contained certain factual statements/findings to the following effect:

(i) Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS)] committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.
(ii) The purpose of Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, was essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh.
(iii) Jamat E Islami (JEI), as an organization, substantially contributed in creating these para-military forces (auxiliary forces) for combating unarmed Bangalee civilians.
(iv) Parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces
(c) With respect to the above, the essence of the opposite party's comments is that while there may be sufficient evidence for substantiating such conclusions in the Abul Kalam Azad case in particular, no evidence in this regard was heard by the Hon'ble Tribunal as manifest from a reading of the judgment and the discussion of evidence contained therein which was set out in sections subsequent to those in which these statements of fact are made.. The opposite party also mentions that the Hon'ble Tribunal may have taken judicial notice of such facts, pursuant to Section 19(3) of the International Crimes (Tribunal) Act, 1973, but did not so state prior to stating these facts in the introductory portion, nor (as far as he is aware, and it is not noted in the judgment) give any notice of any such intention that would allow the parties to respond, and that in any case these issues were contentious issues which were the subject matter of adjudication in other cases and which ought not simply to be deemed as "facts of common knowledge".

With regard to the above, the opposite party first regrets and has since corrected the blog which initially contained an inadvertent and bona fide error inasmuch that it incorrectly stated that there was no allegation that Abul Kalam Azad was a member of Al-Badr. It is acknowledged that there was in fact such an allegation in the charge against Abul Kalam Azad.

(d) Secondly, it is submitted that the above falls well within the ambit of permissible fair comment, expressed in sober and restrained language, and which is based upon a cogent and reasoned analysis of facts. While one may dispute and take exception to the correctness of such analysis, it is respectfully submitted that such analysis cannot, by any stretch of the imagination, be considered as being contemptuous.

(e) In the second portion of the blog article headed "Pre-determining Azad's guilt?", the opposite party comments on the positioning of two paragraphs in the judgment, which, without any preface to the effect that this was the charge against the accused, states, seemingly as a matter of fact, that the accused "actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initiallyin the capacity of 'Razaker' and subsequently as chief of Al Badar bahini of Faridpur" and that "he was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razakar bahini which was equipped with rifles."

(f) Here, the thrust of the opposite party's comments are directed at the positioning of these two paragraphs in the judgment, which occurs before any discussion or adjudication of the evidence adduced, which may unfortunately give an appearance that the accused has been pre-judged. The opposite party does not say that the Hon'ble Tribunal pre-judged the case, but only that the positioning of these two paragraphs may give such an appearance. It is again respectfully submitted that this represents a fair comment expressed in sober and restrained language and is based upon a rational and cogent analysis of the facts and a proper reading of the judgment.

(g) The final portion of the blog headed "Numbers of dead" addresses the issue of the number of those killed in 1971. The opposite party stated in his blogpost that this issue was not relevant to the judgment itself. Referring to the statements of the Hon'ble Tribunal as to he number of those killed in the 1971 war, the opposite party notes that the Hon'ble Tribunal did not hear any evidence supporting this number, and also gives a link to the first blog under reference in the instant proceedings. In conclusion, the opposite party states clearly that it is not his intention or desire to undermine or minimize the nature or number of atrocities committed during the 1971 War.

(h) It is submitted that, the above represents fair criticism based on a rational and reasoned discussion and reference to available information and research on the matter. The thrust of the comments by the opposite party here, and indeed in general, is that factual conclusions may be avoided if not supported by evidence adduced during the trial when the Hon'ble Tribunal is not otherwise stating that it is taking judicial notice of such fact having given an opportunity to parties to comment on the matter. It is submitted that such criticism is not only fair and therefore permissible, but also constructive, inasmuch that it facilitates the Hon'ble Tribunal (assuming that it takes notice of such criticism) to look inwards with a view to improving and developing its jurisprudence. Indeed, subsequent judgments delivered by both the Hon'ble Tribunals suggest continuing development in the evolving jurisprudence of the Hon'ble Tribunal with regard to many of the aspects discussed above. The opposite party acknowledges that the last portion of the blog, being, "rather than repeating a mantra that has little or no factual basis", may appear pejorative which is regretted and unintended, and accordingly, the opposite party, pursuant to common practice, has edited the blog article to delete that phrase.

14.That it is submitted that the comments regarding the Hon'ble Tribunal and aspects of the proceedings before it have been made in sober and moderate language and are objectively based. The Hon'ble Appellate Division clearly provides that "fair criticism" is permitted, which by the very definition of the word, is "an expression of disapproval of someone or something based on perceived faults or mistakes". The issue, therefore, is whether the criticism was fair. It is respectfully submitted that the criticism of the opposite party as contained in the three articles constitutes legally permissible fair criticism of judicial proceedings expressed in strictly rational and sober language, and made from the highest of motives, without being coloured by any partisan spirit or tactics, so as to enable a judicial authority to look inward into the correctness of the proceedings and providing the possibility of developing its continually evolving jurisprudence.

15. That the opposite party humbly prays that upon a consideration of the above facts, circumstances and submissions, the Hon'ble Tribunal may be pleased to dispose of this matter upon an acceptance of the explanation respectfully provided hereby by the opposite party.

16.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
Deponent
Mustafizur Rahman Khan
Advocate

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-2807891876140470162014-02-25T17:23:00.001+06:002014-04-20T14:26:56.910+06:001971'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.

Basis of the 3 million figure
Where does this 3 million figure come from? As mentioned in my previous article, most people attribute the figure to Sheikh Mujib who for example gave an interview to David Frost on 18 January 1972, following his release from a Pakistani jail ten days earlier, where he said:

'You know what has happened in Bangal ? I will tell you. Three million people have been killed, including children, women intellectuals, peasants, workers, students.'
So what was the basis for Mujib saying this? There are two stories given.

The first is an alleged confusion that Mujib may have made between '3 lakh' (which means 300,000) and 3 million. This argument is, for example, made by Serajur Rahman, who says that he was 'the first Bangladeshi to meet independence leader Sheikh Mujibur Rahman after his release from Pakistan, ' and that when they met in London,

'I explained that no accurate figure of the casualties was available but our estimate, based on information from various sources, was that up to "three lakh" (300,000) died in the conflict.

To my surprise and horror he told David Frost later that "three millions of my people" were killed by the Pakistanis. Whether he mistranslated "lakh" as "million" or his confused state of mind was responsible I don't know, but many Bangladeshis still believe a figure of three million is unrealistic and incredible.
Whether or not Serajur Rahman was in fact the first person to meet Mujibur Rahman, the claim that Mujib might have got confused between 'lakhs' and 'millions' is often repeated.

However, there is another story which has been given to explain why Mujib said 3 million - and that is that he was repeating a figure that was first published in the Soviet Union newspaper, Pravda.

In his biography 'Sheikh Mujib: Triumph and Tragedy', Sayyid A Karim, Bangladesh's first foreign secretary, stated in a footnote that:

 'As for the number of Bengalis killed in the course of the liberation war, the figure of 3 million mentioned by Mujib to David Frost in January 1972 was a gross overstatement. This figure was picked up by him from an article in Pravda, the organ of the communist party of the Soviet Union.'
How could Mujib have got the Pravda figure? The Bangladesh Observer published an article on 5 January (which was a prosecution exhibit in the Golam Azam case) titled, 'Pak Army killed over 30 lakh people' and stated:

'The Communist party news paper 'pravda' has reported that over 30 lakh persons were killed throughout Bangladesh by the Pakistan occupation forces during the last nine months, reports ENA. Quoting its special correspondent stationed in Dacca the paper said that the Pakistan Military forces immediately before their surrender to Mukti Bahinis and the Allied forces had killed about 8oo intellectuals in the capital city of Bangladesh alone.
It is unclear what was the basis of Pravda's figure - the newspaper simply quotes its special correspondent. It may have been an earlier editorial by the Bangla language newspaper Daily Purbodesh which on 23 December suggested that 3 million people have been killed. It may also have been from other news reports published by newspapers in which large numbers are said to have died in particular districts. So far example, the Observer on 4 January published an article which stated:

'More than 75,000 persons were killed in the district of Dinajpur by the Pakistan occupation forces and their collaborators during the last nine months, according to the preliminary reports of an unofficial survey says ENA. The Survey revealed that besides mass killing, about 20,000 women were dishonoured by the Pakistani occupation forces and their agents in the district.' (also part of the Azam prosecution exhibit)
It is however interesting to note that in the 5 January Observer report apart from stating that 30 lakhs (i.e 3 million) had died, it also stated that the:

 'Pakistan Military forces immediately before their surrender to Mukti Bahinis and the Allied forces had killed about 8oo intellectuals in the capital city of Bangladesh alone.' (emphasis added)

This appears to be referring to the abduction and murder by the Pakistani/Al Badr forces of intellectuals between 10th and 14 December in central Dhaka. About this, however, we do know for sure that the number was not 800, but close to a couple of dozen and perhaps around 18 - which is suggested in the tribunal judgment against Chowdhury Mueen Uddin and Ashrafuzzaman Khan.*

Of course, whilst it is perfectly possible for the quoted 3 million figure to be correct whilst at the same time as the 800 figure quoted by the article to be wrong - the wide inaccuracy of the 800 figure should perhaps raise some alarm bells about the accuracy of Pravda's estimate of 3 million particularly since the article seems to suggest that it is from the same source.

Other evidence in support of 3 million
Is there any other subsequent evidence to support the 3 million figure? There are perhaps two points that arguably provide some support for it.

- Robert Payne's 1972 book, 'Massacre' at p.50 quotes President Yahya Khan at the February 1971 conference as stating, "Kill three million of them and the rest will eat out of our hands." Of course, assuming Yahya Khan is quoted accurately, it only goes to the intention of the pakistani military to kill very large numbers of Bengali civilians, and not to the actual number that were killed.

- in addition, there are those who use UN population estimates and census data to argue that the 3 million figure is plausible. However, as I have discussed elsewhere, population demographers are loathe to give much credibility to the particular figures used.

There have of course been many other estimates of numbers of dead - which can be seen here. Gary Bass in his highly regarded book published last year, 'The blood Telegram' about the US role in the 1971 war, states this about numbers of dead.

'A senior Indian official put the Bengali death toll at three hundred thousand, while Sydney Schandberg, who had excellent sources, noted in the New York Times that diplomats in Dacca thought that hundreds of thousands of Bengalis - maybe even a million or more - had been killed since the crackdown started on March 25. Even the lowest credible Pakistani estimates are in the tens of thousands while India sought vindication with bigger number: Swaran Singh quickly claimed that a million people had been killed in Bangladesh.' (p.322)

He also quotes General Jacob as stating that the pakistan forces 'had killed, several hundred thousand' (p.323).

These are of course, again, just simply estimates. Not based on any concrete information. The numbers could be bigger or smaller.

There has only been one study which actually involved the counting of those who died in 1971 - and this involved just the small area of the upazilla of Matlab.

I have already summarized this study previously, but because of its significance will shortly be writing a longer article about it.

-------
* Amended on 1 March 2014 to make clear that the number of intellectuals killed in Dhaka in the last days of the war maybe more than 18: The tribunal itself have named 18 individuals deemed to be 'intellectuals' abducted/killed in the dying days of the war in Dhaka. However there may be some more people that are not that well known - or perhaps are not conventionally considered as 'intellectuals' - that were killed, and are not included in the Mueen Uddin/Khan judgement. However, it is likely that the number is unlikely to be much more than the 18 set out in the judgement.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-79731913377912259982014-02-23T13:26:00.000+06:002014-04-20T14:27:16.331+06:00Tribunal 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

Summary of findings
The relevant excerpts of each of the judgements are set out below, however the following points can be made about them

- in all of the 9 judgements, it is stated that about 3 million people were killed in the war, and about 250,000 women were raped.

- Tribunal 2: the six judgements from tribunal 2 (Azad, Mollah, Quamrazzuman, Mojahid, Alim, Mueen Uddin/Ashrafuzzaman Khan) do not contain references to material that directly support the estimate of 3 million dead.

However, there is reference in all the tribunal-2 judgments (except the one relating to Mueen/Khan) to a researcher on genocide who is quoted as stating, '[The pakistan military] also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India.' (emphasis added)

In addition, in all the tribunal-2 judgments (other than ones relating to Azad and Mueen/Khan) there is a quote from an article published in October 1971 (two months before the end of the war) in a Venezuelan magazine called SUMMA, which states that 'Between 26 March—the date of invasion— and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory.' (emphasis added)

- Tribunal 1: There are three judgments given by tribunal-1. In the judgement of Sayedee, there is no reference to any research on number of those who died.

- the judgement in Golam Azam refers to:

- A May 1971 newspaper report which stated, '[River side vultures ... have fed on perhaps more than a half million bodies since March;
- a report published in the Daily Observer on 4 January 1972 which stated, 'More than 75,000 persons were killed in the district of Dinajpur by the Pakistan occupation forces and their collaborators during the last nine months, according to the preliminary reports of an unofficial survey says ENA. The Survey revealed that besides mass killing, about 20,000 women were
dishonoured by the Pakistani occupation forces and their agents in the district.'
- a report a day later in the same paper, 'The Communist party news paper 'pravda' has reported that over 30 lakh persons were killed throughout Bangladesh by the Pakistan occupation forces during the last nine months.'
- a report on the 8 January in the same paper, quoting unofficial sources as saying that over one lakh killed in Khulna town
- another report on 18 January about the Pakistan Army killing 30,000 persons in Hajigang in Comilla
- another report, written from Thakurgaon in February that stated that 'During nine months of their occupation the Pakistan Army had killed nearly one thirtieth of the total of ten lakh population in the Sub-Division.'
- a report in the Daily Azad in February, that 'Chancellor of Dhaka University firmly declared that during war of Liberation, Pakistan occupation forces killed more than 30 lakh people.'
- a book by Robert Payne which quotes Yahya Khan as saying that "Kill three million of them and the rest will eat out of our hands". (emphasis added)

- in the judgement of Salauddin Quader Chowdhury, there is a particular section titled 'How many people were killed (Shaheed) during the War of Liberation of Bangladesh in 1971' which repeats a number of sources set out in the Azam judgement (see above), and also quotes from a book by Zafa Iqbal: "How many people were killed in Bangladesh is not known for sure there are several different estimates in the media. According to the 1984 world Almanac, it is a million. According to the New York Times (22 December 1972) it is between half to one and a half million. According to the compton's Encyclopedia and the the Encyclopedia Americana, it is three million (52). The exact number may never be known. In Bangaldesh today, the number is said to be three million." It ends by saying:

On perusal of old documents such as books, articles, newspapers of both local and foreign media, government and NGO reports, we are led to hold that during the law of Liberation of Bangladesh in 1971, at least 3 million people were killed by the Pakistan occupation forces and their collaborators. This number of death-roll has been accepted by the people of Bangladesh as true as it is based on old documents cited above. The facts of killing 3 million people, torture, rape and genocide of Bangaldesh in 1971 has become a part of world history, a classic instance of a "fact of common knowledge."

 Extracts from Judgments

TRIBUNAL TWO
Abul Kalam Azad (22 Jan 2013)
The tribunal stated:

3. ... Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to flee to India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. ...

4. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states: "In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come."

5. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000.
[Source: http://bangladeshwatchdog1.wordpress.com/razakars/]
Molla Judgement (5 Feb 2013)
The tribunal stated:

6. ... Some three million people were killed, nearly quarter million women were raped and over 10 million.people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. ....

7. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states: "In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come."

8. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the
number of raped women at over 400,000.
[Source: http://bangladeshwatchdog1.wordpress.com/razakars/] ...

14. A report titled 'A Country Full of Corpses' published in SUMMA Magazine, Caracas, October 1971 speaks that "The extermination of the Jewish people by the Nazi regime, the atomic crime of Hiroshima and Nagasaki, the massacre of Biafra, the napalm of Vietnam, all the great genocides of humanity have found a new equivalent: East Pakistan. Despite the world press having supplied a clear exposition of facts, the people do not appear to have raised that at this moment—and again in Asia—millions and millions of human beings face destruction of their life and mother land ..... A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50,000 persons by the invading army. Between 26 March—the date of invasion— and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory." [Source: Bangladesh Documents- Volume II , page 76]

Md Quamaruzzan (9 May 2013)
The tribunal stated:

6. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. ...

10. A well-known researcher on genocide, R.J. Rummel, in his book 'Statistics of Democide: Genocide and Mass Murder Since 1900', states: "In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come."

11. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000. [Source: http://bangladeshwatchdog1.wordpress.com/razakars/] ...

15. A report titled 'A Country Full of Corpses' published in SUMMA Magazine, Caracas, October 1971[Source: Bangladesh Documents- Volume II, page 76] speaks that "The extermination of the Jewish people by the Nazi regime, the atomic crime of Hiroshima and Nagasaki, the massacre of Biafra, the napalm of Vietnam, all the great genocides of humanity have found a new equivalent: East Pakistan. Despite the world press having supplied a clear exposition of facts, the people do not appear to have raised that at this moment—and again in Asia—millions and millions of human beings face destruction of their life and mother land..................................A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50,000 persons by the invading army. Between 26 March—the date of invasion—and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory." ...

637. C.L. Sulzberger wrote in the New York Times, June 16, 1971 describing the horrific nature and untold extent of atrocities committed in the territory of Bangladesh. It shakes the conscious of mankind. It imprints colossal pains to the Bangalee nation. C.L. Sulzberger wrote that: "Hiroshima and Nagasaki are vividly remembered by the mind's eye primarily because of the novel means that brought holocaust to those cities. Statistically comparable disasters in Hamburg and Dresden are more easily forgotten; they were produced by what we already then conceived of as "conventional" methods. Against this background one must view the appalling catastrophe of East Pakistan whose scale is so immense that it exceeds the dolorimeter capacity by which human sympathy is measured. No one can hope to count the dead, wounded, missing, homeless or stricken whose number grows each day."[Source: Bangladesh Documents: Volume, page 442: Ministry of External Affairs, New Delhi]

Mujahid (17 July 2013)
The tribunal stated:

5. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation.

10. A well-known researcher on genocide, R.J. Rummel, in his book 'Statistics of Democide: Genocide and Mass Murder Since 1900', states: "In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan
for at least a generation to come." ....

13. A report titled 'A Country Full of Corpses' published in SUMMA Magazine, Caracas, October 1971[Source: Bangladesh Documents- Volume II, page 76] speaks that "The extermination of the Jewish people by the Nazi regime, the atomic crime of Hiroshima and Nagasaki, the massacre of Biafra, the napalm of Vietnam, all the great genocides of humanity have found a new equivalent: East Pakistan. ……… A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50,000 persons by the invading army. Between 26 March—the date of invasion—and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory. "

630. C.L. Sulzberger wrote in the New York Times, June 16, 1971 describing the horrific nature and untold extent of atrocities committed in the territory of Bangladesh. It shakes the conscious of mankind. It imprints colossal pains to the Bangalee nation. C.L. Sulzberger wrote that- "Hiroshima and Nagasaki are vividly remembered by the mind's eye primarily because of the novel means that brought holocaust to those cities. Statistically comparable disasters in Hamburg and Dresden are more easily forgotten; they were produced by what we already then conceived of as "conventional" methods. Against this background one must view the appalling catastrophe of East Pakistan whose scale is so immense that it exceeds the dolorimeter capacity by which human sympathy is measured. No one can hope to count the dead, wounded, missing, homeless or stricken whose number grows each day. " [Source: Bangladesh Documents: Volume I, page 442: Ministry of External Affairs, New Delhi]

Abdul Alim (9 Oct 2013)
The tribunal stated:

6. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. ....

12. A report titled 'A Country Full of Corpses' published in SUMMA Magazine, Caracas, October 1971[Source: Bangladesh Documents- Volume II, page 76] speaks that: "The extermination of the Jewish people by the Nazi regime, the atomic crime of Hiroshima and Nagasaki, the massacre of Biafra, the napalm of Vietnam, all the great genocides of humanity have found a new equivalent: East Pakistan. ..................................A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50,000 persons by the invading army. Between 26 March—the date of invasion—and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory. "

Chowdhury Mueen Uddin/Ashrafuzzaman Khan (3 Nov 2013)
The judgement said:

5. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation.

TRIBUNAL 1

Delwar Hossain Sayedee (28 February 2013), Tribunal 1
The tribunal stated:

5....It was estimated that during nine month long War, about three million people were killed, nearly quarter million women were raped, and over 10 million people were deported to India causing brutal persecution upon them ...

10. As a result [of the activities of the Pakistan military and their collaborators] 3 million (thirty lacs) people wete killed, more then 2 (two) lakh women raped, about 10 million (one crore) people deported to India as refugees and million others were intemally displaced. It also saw unprecedented destruction of properties all over Bangladesh.

Golam Azam (15 July 2013), Tribunal 1

The tribunal stated:

3. In 1971, during the War of Liberation of Bangladesh, atrocities in a large scale, crimes against humanity, war crimes and genocide were committed by Pakistani forces, auxiliary forces and their associates which resulted the birth of Bangladesh as an independent country. It was estimated that during nine month long war, about three million people were killed, nearly a quarter million women were raped, and over 10 million people were deported to India causing brutal persecution upon them. ...

9. As a result [of conduct on part of Pakistani military and their local collaborators], 3 million (thirty lakh) people were killed, more then 2(two) lakh women raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also saw unprecedented destruction of properties all over Bangladesh. ...

75. .... From March to December 1971, the nine month long liberation war drew world's attention because of genocide and crimes against humanity committed by Pakistani occupation forces and their collaborators which resulted by murder of approximately 3 million people and nearly a quater million girls and women were raped, leading to approximately 25,000 pregnancies. Ten million Bangalees reportedly took refuge in India to avoid the massacre of Pakistani army and thirty million people were internally displaced within the country. The above crimes undoubtedly rank first after Nazi holocaust during the Second World War( 1939-1945). ...

80. A report sent by Mort Rosenblum was published in the 'Washinton Evening Star' on 12 May 1971 under the caption "vultures too full to fly". The above caption news gives a horrendous picture of mass killing happened in Bangladesh during 25 March to 12 May, 1971. It is reported that the river side Vultures used to fill up their stomachs by taking human flesh to excess that they even could not fly. If we think over the matter for a while by closing our eyes, every one will easily guess the magnitude of massacre allegedly committed by the perpetrators during the early part of the Liberation War in 1971. The report is quoted below:- "Dacca, East Pakistan:- Vultures too full to fly perch along the Ganges River in grim contentment. They have fed on perhaps more than a half million bodies since March. Civil war flamed through Pakistan's eastern wing on March 25, pushing the bankrupt nation to the edge of ruin. The killing and devastation defy belief. From a well at Natore, fetid gasses bubble up around bones and rotting flesh. A tiny child gazes at a break in the lavender carpet of water hyacinths in a nearby pond where his parents bodies were dumped". Source:- Dalil Patra, (Govt. Pub.) XIII Volume, page No. 304-305.

81. A news report was published in the Daily Observer on 4.1.1972 under the caption "Pak Army Killed 75,000 people in Dinajpur" which is quoted below in relevant part. DINAJPUR:- Jan-4-- More than 75,000 persons were killed in the district of Dinajpur by the Pakistan occupation forces and their collaborators during the last nine months, according to the preliminary reports of an unofficial survey says ENA. The Survey revealed that besides mass killing, about 20,000 women were dishonoured by the Pakistani occupation forces and their agents in the district. The said news report has been proved by prosecution and marked as Ext. No. 119 on 17.09.2012.

82. A news report was published in the daily observer on 05.01.1972 under the caption "Pak Army killed over 30 lakh people" which is quoted below in relevant part. The Communist party news paper 'pravda' has reported that over 30 lakh persons were killed throughout Bangladesh by the Pakistan occupation forces during the last nine months, reports ENA. Quoting its special correspondent stationed in Dacca the paper said that the Pakistan Military forces immediately before their surrender to Mukti Bahinis and the Allied forces had killed about 8oo intellectuals in the capital city of Bangladesh alone. The said news-report has been proved by prosecution and marked as Ext. No. 120 on 17.09.2012.

83. A news report was published in the 'Daily Observer' on 08.01.1972 under the caption "Over one lakh killed in Khulna town" which is quoted below in relevant part. KHULNA Jan 6:- Over one lakh people were killed or injured, 20 lakh pucca and kutcha houses were destroyed or burnt and an equal number of people rendered homeless partly or completely at the hands of barbarous pakistani Army and their collaborators during their nine months reign of terror in Khulna district, according to an unofficial estimate available here from various sources. The said news report has been proved by prosecution and marked as Ext. No. 121 on 17.09.2012.

84. A news report was published in the "Daily Bangladesh Observer" on 17.02.1972 under the caption " Pak- Army killed 30,000 persons in Hajigang" which is quoted below in relevant part. COMILLA Feb.-16:- Horridness of mass killing of unarmed innocent children and women by the brute Pakistan occupation Army and their collaborators during 9 long months in Bangladesh have been coming to light everyday. In Hajiganj Police Station of Chandpur Sub-Division about 30,000 people were murdered by Pakistan bandit army reports ENA. The said report has been proved by prosecution and marked as Ext. No. 133 on 17.09.2012.

85. A news report was published in "the Daily Bangladesh Observer" on 10.02.1972 under the caption "3000 women violated" which is quoted below in relevant part. THAKURGAON, Feb.-9:- During nine months of their occupation the Pakistan Army had killed nearly one thirtieth of the total of ten lakh population in the Sub-Division, violated 3000 women destroyed 8000 houses and looted all most all the valuables of the people. BSS Correspondent gathered here. The said report has been proved by the prosecution and marked as Ext. No. 164 on 18.09.2012.

86. Another news report was published in the Daily Azad on 10 February 1972 which has been proved and marked as Ext. No. 229 on 18.09.2012. In a condolence meeting, Dr. Mozaffar Ahmed Chowdhury, the then vice – Chancellor of Dhaka University firmly declared that during war of Liberation, Pakistan occupation forces killed more than 30 lakh people.

87. It may be recalled here that General Niazi in his book named "The Betrayal of East Pakistan" has narrated at its page Nos. 45-46 that General Tikka ordered his troops uttering "I want the land and not the people". In continuation of such barbaric mission, the General Head quater of Army sent a massage "Burn every thing, kill everyone at sight". The barbaric purpose of the Military Junta was not unknown to us who were in West Pakistan, when from General Head Quaters of the Pakistan Army the massage went out; "Burn everything, kill everyone in sight" Source:- ( Laurrence Lifs Chultz) Bangladesh; "The Unfinished Revolution," page -77.

88. President Yahya Khan made a comment during struggle for Bangladesh which gives a total picture of genocide committed by the Pakistani Army and their collaborators. President Yahya commented –"Kill three million of them and the rest will eat out of our hands". Source:- Robert Payne 'Massacre' page 50. ...

91. It is undeniable that during the War of Liberation of Bangladesh in 1971, Pakistani forces and their collaborators in a planned way made attacks upon unarmed civilians with intent to wipe out in whole or in part Bangalee nation and sometimes against Hindu Community as a religious group . It is evident that the perpatrators committed crimes against humanity such as mass killing, extermination, deportation, abduction, torture, rape and genocide in a large scale and such attacks were directed against unarmed civilians. These occurrences of crimes against humanity and genocide have been confirmed by old documentary evidence such as books on liberation war, scholarly articles, newspaper reporting of both local and foreign media, Government and NGO reports which deemed to have probative value. The facts of mass killing, torture, rape and genocide of Bangladesh in 1971 has become a part of world history, a classic instance of a "fact of common knowledge". Now let us examine both oral and documentary evidence keeping those in mind as old evidence for adjudicating the charges independently.

Salauddin Quader Chowdhury (1 October 2013), Tribunal 1
The tribunal stated:

5. It was estimated that during nine-month long war, about three million people were killed, nearly a quarter million women were raped, and over 10 million people were deported to India causing brutal persecution upon them. ...

10. As a result [of the pakistan and their collaborators], 3 million (thirty lakh) people were killed, more then 2(two) lakh women raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also saw unprecedented destruction of properties all over Bangladesh.

How many people were killed (Shaheed) during the War of Liberation of Bangladesh in 1971. 261. Mr. Ahsanul Huq Hena the learned defence counsel raised a question-whether there is any death-roll in the hands of the government to show how many people were killed during the War of Liberation.

262. From the submissions of both the sides, we can gather it from the facts of common knowledge that during nine months' war a horrendous atrocities extensively took place all over the country that it was simply impossible to collect actual numbers of killings that took place in Bangladesh. At that time millions of people were compelled to be displaced, thousands of people within the country were missing, no dead body of those persons were found, 10 million of people reportedly took refuge in India to save their lives. After the War of Liberation, some government and non-government organizations made survey in all over the country to find out actual number of dead persons, injured persons, and also to determine loss of government and private properties. The estimates of those agencies varied to each other for want of reliable information. To arrive at a decision, we may rely upon old documents which have got probative value.

263. Now let us peruse some news reporting and books about the total mass killing committed by Pakistan army and their collaborators during the War of Liberation for the purpose of taking judicial notice of it.

264. A news report was published in the 'Daily Observer' on 05.01.1972 under the caption "Pak Army killed over 30 lakh people" which is quoted below in relevant part. "The communist party news paper "Pravda" has reported that over 30 lakh persons were killed throughout Bangladesh by Pakistan Occupation forces during the last nine months, reports –ENA." Source: Ghulam Azam Case-Exhibit No-120

265. Another news report was published in the 'Daily Azad' on 10 February 1972. The relevant part is quoted below:- "In a condolence meeting, Dr. Mozaffar Ahmed Chowdhury, the then Vice-Chancellor of Dhaka University firmly declared that during the War of Liberation, Pakistan occupation forces killed more then 30 lakh people" Source: Ghulam Azam Case-Exhibit No-229

266. President Yahya Khan made a comment during struggle for Bangladesh which gives a total picture of genocide committed by the Pakistan Army and their collaborators. President Yahya commented "kill three million of them and the rest will eat out our hands." Source:- Robert Payne-"Massacre"page-50.

267. Muhammad Zafa Iqbal has given a data in his book which is quoted below: "How many people were killed in Bangladesh is not known for sure there are several different estimates in the media. According to the 1984 world Almanac, it is a million. According to the New York Times (22 December 1972) it is between half to one and a half million. According to the compton's Encyclopedia and the the Encyclopedia Americana, it is three million. The exact number may never be known. In Bangaldesh today, the number is said to be three million." Source:-"History of the Liberation War" page-19 written by Muhammad Zafar Iqbal

268. On perusal of old documents such as books, articles, news paper reporting of both local and foreign media, government and NGO reports, we are led to hold that during the War of Liberation of Bangladesh in 1971, at least 3 million people were killed by the Pakistan occupation forces and their Collaborators. This number of death-roll has been accepted by the people of Bangaldesh as true as it is based on old documents cited above. The facts of killing 3 million people, torture, rape and genocide of Bangaldesh in 1971 has become a part of world history, a classic instance of a "fact of common knowledge."

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-37994989741053059282014-02-22T16:50:00.003+06:002014-03-04T13:09:42.474+06:00Bangladesh 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.

Fine, don't believe the allegation made by Jamaat lawyers, and don't, if you wish, give credibility to my own journalism – but perhaps Omor (and others) might wish to believe Bali himself! Or is there no evidence that they will believe?

Bali first gave the story of his abduction in early 2013, when he provided a detailed statement about his abduction, parts of which were published in New Age.

Bali again said the same thing through his lawyers in the Indian supreme court as part of his claim for asylum which is currently being considered by the Indian government.

One should of course note that at this time, the government was alleged to have been involved in dozens of disappearances of opposition supporters or activists.

Credible evidence
Bali's own claim that he was abducted from outside the tribunal gates, of course provides further strong confirmation to my initial journalistic instincts which were first written up in my blogpost on this subject five days after the abduction.

I stated on 10 November, 'Although there remains at present no entirely independent witness to this abduction, this allegation is credible in light of the background circumstances to this incident, the detailed corroborating accounts provided, and the photographs taken of the police vehicle in which the Bali is said to have been taken.'

Omor's article suggests that I believed the abduction allegation without any thought or consideration to the fact that the only witnesses were the Jamaat lawyers and those working for a newspaper with links to the party. That is far from the truth, as anyone reading the original article can clearly see.

This is what I wrote in that post:

'The only witnesses available at present are the members of the defense team, one of their drivers, and two journalists of a newspaper sympathetic to the objectives of the defense team. Despite the lack of independent testimony, there is good reason to conclude that the defence witness Shukharanjan Bali was indeed kidnapped by the police outside the International Crimes Tribunal."

I then went onto explain why I thought so.

'The photographs are particularly important. (a) In picture 1, the tree in the picture matches with the actual tree outside the gate from which the witnesses said Bali was taken; (b) in both pictures 1 and 2, the police vehicle is pointing in the direction of the road as though it has just come from the Tribunal, as the witnesses testify; (c) there are also two pictures that appear to show that both the two journalists witnesses, Shahidul Islam and Golam Azam, were at the scene of the abduction - an important piece of corroboration.

'Without independent testimony, there is perhaps no conclusive proof that such an abduction has taken place. It is also of course notable that the only two journalists present at the time were from the Sangram paper. However the detailed testimony, along with the pictures do suggest that the defense witness was abducted by law enforcement personal outside the tribunal gate.'
I said clearly that the lack of independent testimony did not make it possible to be conclusive about the abduction allegation. However, it was my view then and it remains the case now (of course now fully supported by Bali's own testimony) that the claim of abduction was credible due to the level of detailed information provided in the interviews (all of which were conducted separately) the consistency of the accounts, and the corroboration provided by the photographs.

Bali's wife testimony
A week later I travelled to Pirojpur, and interviewed Bali's wife. Omor mentions this, but fails to state that his wife corroborated the claim by the defence lawyers that he had gone to Dhaka to testify at the tribunal.

As I said in the blog post about the meeting (which contained a transcript of the conversation):

'The interview seems to corroborate a number of issues relating to the alleged abduction of Bali. (a) that Bali had gone to Dhaka (b) that he was on his way to the tribunal on the 5th morning when he called her (c) that he was willingly going to give evidence on behalf of Sayedee (d) that he has been missing since then - the family have not received any calls from him since the 5th.'
Background circumstances
Moreover significant in my assessment at the time was the 'background circumstances to this incident' which I wrote up in my blog

It is a pity that Omer did not set this out clearly in his article as it shows how the defence had been trying to get Bali to testify at the tribunal for a number of weeks, that it was very much in their interest to get him to come to court, and why the state had such an interest in preventing this happening.

Bali was originally listed as a prosecution witness in relation to the death of his older brother in 1971, and a statement written by the investigation officer purporting to come from Bali had originally been given to the tribunal in which he is said to have alleged that Sayedee ordered his brother's murder.

Subsequently, however, in around March 2012, a number of video interviews were published on the internet in which Bali states that Sayedee was not involved in his brother's death and that he never gave a statement to this effect.

The prosecution did not bring Bali to court to testify as a witnesses, stating that he 'was missing'. At the time the defence denied this was the case.

On 21 October 2012, the defense filed an application asking the tribunal to issue a summons requiring Bali to come to the tribunal as a defense witness.

This application stated: 'Shukharanjan Bali has direct knowledge of the alleged incidents of the case. He is the brother of the late Bishabali who was allegedly killed at the instruction of the accused as per charge 10 of the instant case. As such it is necessary to issue summons upon Shukharanjan Bali so that he can give evidence as Defence Witness.

This application was heard on the 23 October, and the tribunal ruled that it would not issue a summons, but that the defense could bring any witness that it wanted.

It should be noted that the tribunal had issued summonses for all the prosecution witnesses.

Two days later the tribunal ordered the defense to close its case and fixed 5 November 2012 for the prosecution to sum up its case. On 31 October, the defense made another application asking the tribunal to allow it to bring Bali (and another witness) to testify prior to the beginning of the prosecution summing up.

The tribunal said that it would hear the application on 4 November. According to the defence lawyers, Bali was brought to the tribunal on that day, spending the whole day in the defense room. However the tribunal did not hear the application.

The defence claim that when he was brought to the tribunal the next morning, the only day it would have been possible for him to give his evidence, he was abducted.

It was clearly in the defence interest to bring Bali to court. Going by the video testimony, he would have testified, that Sayedee had not been involved in his brother's murder, and that the investigation officer's statement was false. This was something that the prosecution desperately did not want to happen.

CCTV footage
The prosecution, the police and the tribunal authorities all denied the abduction. One of the most notable failures of the part of the authorities was not to allow an inquiry into the court CCTV footage of that and the previous day which would have been able to corroborate certain elements of the abduction allegation – including for example the movement of the police van from inside the court.

As I stated at the time, the failure for the authorities to have made any proper inquiry into this footage was very telling.

The BBC
Omor argues in his piece that a BBC article exposed my 'falsehood' in relation to the article published by New Age. That is not at all the case. Indeed, following a complaint I made about the way in which the BBC article was written, an executive wrote to me and confirmed that, 'The sources did in fact confirm your report that a message had indeed been sent by Mr Bali to Bangladesh, the difference was in how it had been delivered.'

Of course, in fact the claim made by an unnamed jail official to the BBC, that a 'message' was sent by bribing a jail official is totally incorrect. I know exactly who was involved in taking Bali's statement – it did not involve any prison official, there was no financial transaction and it was done totally lawfully.

It should also be noted that the BBC executive acknowledged that there were problems with the article. 'I don't think the BBC Bangla article has been successful in reaching the aims that it set out for itself. … You are right about the absence of context. …. I do find that your complaint is partially upheld, the piece did need considerably more explanation and context to deliver a clear and full picture to the audience.'

Unfortunately, much the same, and more, could be said of Omor's biased, prejudicial and misleading article.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-5961725130906584002014-02-20T15:56:00.002+06:002014-04-20T14:27:42.691+06:00Ten 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.

5. The Bangladesh appellate division in its previous judgments has made it clear that fair criticism of judicial orders is permitted. So, in the judgement and order dated 11.10.2010 delivered in the case of Riaz uddin Khan Advocate and another vs Mahamadur Rahman and others (Contempt Petition No. 12 of 2010 (unreported)), Justice Surendra Kumar Sinha stated at page 30 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…'

In an earlier judgement dated 10.08.2010 in a related case (contempt Petition No. 05 of 2010 at page 75 (unreported)), Justice Sinha also held that:

"A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest.
6. All commentary about the tribunal in this blog falls within the fair criticism description as articulated by Justice Sinha, and in no way, 'tends to bring it or any of its members into hatred or contempt' as would be required by section 11(4) of the ICT Act 1973.

7. The post which is criticised the most in the application is the one published on 11 November 2011, and titled: 'Sayedee indictment: 1971 deaths' and can be accessed here. This is one of a number of articles published at that time looking at different aspects of the Sayedee charge framing order (i.e indictment). In the charge framing order, the tribunal stated as part of its background description, that '3 million' people were killed in the war. The post is an analysis of the evidential basis of the 3 million figure and an analysis of other estimates. It starts by saying:

'This statement by the tribunal provides an opportunity to look at the question of how many people died as a result of the 1971 war - a controversial issue within Bangladesh. In certain nationalistic circles, to raise what I consider to be legitimate questions about the 3 million figure can draw strong emotions.
The tribunal in its order does not provide or refer to any evidence or material on record to support the figure of 3 million, treating it as a historical fact.
Although this number is treated as though it is an official government figure, there is as far as I can see little evidence, if any, to support it.
It is not uncommon of course for there to be widely different estimates of the numbers who died as a result of a war. People involved in any conflict have reasons to either over or under estimate the numbers who died. Moreover, it is difficult, in any post conflict situation, to make accurate estimates of the numbers of dead, as even recent wars in Iraq, for example, testify. Sarmila Bose's criticism in her recent book (see below) of the failure of the Bangladesh government after the war to have undertaken proper studied that would have provided more reliable estimates of the number who died do seem rather unfair.'
Although writing about this subject is like sailing in perilous waters, I think it is fair to make the following points on this question'
The articles then goes on to look, in some detail, about where the '3 million figure' originated and what research had been done on estimating the numbers that had died in the 1971 war.

There is simply nothing stated in this post which could by any reasonable interpretation be deemed to be contemptuous of the tribunal. It appears that the applicant, in its focus on this particular post seeks to stop any discussion of any kind that raises questions about the accuracy of the estimate that 3 million people were killed in 1971 - even though no research has been undertaken that substantiates that figure.

8. The other two posts that have been criticised in the application relate to comments made about the judgment of the in-absentia trial of Abul Kalam Azad. One was titled, 'Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy' and the other one was titled, 'Azad Judgment analysis 2: Tribunal assumptions'.

These two posts contain fair, accurate and constructive comment on the tribunal judgement. To read about which parts of these two posts the applicant considers to be contemptuous, see here

9. The application filed in the international crimes tribunal is a direct threat to freedom of comment about the international crimes tribunal. It seems to wants to stop any critical commentary about the tribunal - however fair, constructive, or accurate it may be.

10. The application refers back to a previous ruling in the International Crimes Tribunal-1 relating to an earlier application regarding an allegation against me for contempt of court. To read about this ruling, see this.

--------------

To see further on this:

1. Initial thoughts on contempt application: what Bangladesh law says criticism of 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

4. An attempt to clamp down on critical commentary

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-4039267715544642182014-02-20T11:07:00.001+06:002014-04-20T14:28:02.362+06:00An 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

David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-63624194432361233842014-02-20T10:37:00.003+06:002014-02-23T13:26:49.014+06:00Fair 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.

Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy

The second post which the applicant considers to be contemptuous is the first of two parts of on analysis on the judgement issued by Tribunal 2 on Abul Kalam Azad (Bacchu), a trial that took place in absentia. This analysis was written over a year ago on 28 January 2013 - and it is difficult to see how suddenly it should be of interest as a matter of contempt.

The application states that I have in this post 'raised direct allegation against the tribunal' and then quotes this passage from my post:

This first analysis of the Azad trial/judgment looks at the question of 'in absentia' trials and whether or not there was an adequate defense give to Azad (who had apparently absconded as soon as he heard that he was about to be arrested).

It summary this analysis argues that, (a) in contradiction to what is stated in the judgement, there is no international legal support for the kind of in absentia trial that took place with Azad; and (b) linked to this, the defense to Azad provided by the state defense lawyer (who by-the-by - in an interview admitted that he is a supporter of the governing party, the Awami League, and used to be a member of its student wing) was seriously defective.

It is not stated in the application why this passage shows contempt. It is, in my view simply fair comment and my full argument is explained in detail subsequently in the post.

2. Azad Judgment analysis 2: Tribunal assumptions

The third post which the applicant considers to be contemptuous concerns the second part of an analysis Abul Kalam Azad (Bacchu) judgement

The application first refers to the final section of the analysis which states:

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 [referring back to the post discussed above]

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 repeating a mantra that has little or no factual basis.' (emphasis added in application)
The applications then refers to this section in the post:

Making factual judgements without evidence
In the introductory section, the judgement makes a number of statements - which appear to be factual findings of the court. These are as follows:

Para 10 states:
In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties,particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS) joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. As a result, 3 million (thirty lac) people were killed, near about quarter million women were raped,about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh.

Para 11 states:
The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-Independence political parties, Bangalee intellectuals and civilian population of Bangladesh. Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan.

Para 35 states:
Admittedly, during the period of War of Liberation in 1971 parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces of the Pakistani armed force who provided moral supports , assistance and substantially contributed and also physically participated to the commission of horrendous atrocities in the territory of Bangladesh. It is the fact of common knowledge that thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom fighters and finally the 'intellectuals'. (emphasis added)

However, the court has heard no evidence on these matters - and in fact these are matters subject to adjudication in other cases before the tribunal. In particular, it is pretty strange for the tribunal to state, on the basis of no evidence that has been heard before it, that: (emphasis added in application)
- most of [Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS)] committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.
- the purpose of Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, was essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh
- Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians
- parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces.

There may or may not be sufficient evidence to substantiate these conclusions - we have to wait and see the prosecution and defense evidence presented in the other cases to make a determination on that - but what is certainly true is that a trial judgement cannot just simply these things without having heard evidence from both sides and stating the basis of the conclusion. Moreover, of course, since Azad was not alleged to be a member of the Al-Badr or Al-Shams, and was not a member of the Jamaat - it remains entirely unclear why the tribunal considered it appropriate in this judgement to make such significant conclusions. (emphasis added in application)
And the application finally refers to this section of the post:

Pre-determining Azad's guilt?

In the introductory section, prior to any discussion of the evidence against Abul Kalam Azad, Para 12 states the following about the accused

He studied in Faridpur Rajendra College and was a close associate of Ali Ahsan Mohammad Mujahid, the then President of East Pakistan Islami Chatra Sangha (ICS). Till formal formation of Razaker force, Moulana Abul Kalam Azad @ Bachchu actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initially in the capacity of 'Razaker' and subsequently as chief of Al-Badar bahini of Faridpur.

… On 21 April, 1971 he being united with the local anti liberation circle welcomed the Pakistani army in Faridpur district. He was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razaker bahini which was equipped with rifles. (emphasis added)

It is very odd to position these two paragraphs in the introduction of the judgement and prior to a discussion of the adjudication of the evidence. Unfortunately, it gives the appearance that the tribunal has pre-judged the accused. (emphasis added in application)
The application does not specifically state why the application is of the view these comments are contemptuous - but simply highlights particular text in bold.

These statements however all appear to be fair comments about the judgement, which - as stated above - is allowed in Bangladesh law.

Although, all of these statements are legitimate fair comment, I have nonetheless made a few edits to these two posts, which in no way changes the arguments made, in order to remove certain language that could be misinterpreted.

Previous contempt
The application refers repeatedly back to the previous contempt application against me. The final judgement and my own analysis of the tribunal's findings can be seen here

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-12377847702803706912014-02-20T08:34:00.001+06:002014-02-23T13:27:04.355+06:00Fair 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'

'A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest.'
It should be noted that out of 916 posts published on the blog, the application only argues that three posts on this blog are 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. Yet, the applicant seeks the closure of the blog.

Substance of application: 1971 death numbers
Here I will comment on the first of the three posts which the applicant argues is contemptuous. It is titled: Sayedee indictment - 1971 deaths. (The other two alleged contemptuous posts are considered in a separate post.)

This post, which was published over two years ago on 11 November 2011 was one of four posts analysing the charge framing order against Sayedee. One has to wonder, of course, why all of a sudden a post published two years ago is suddenly considered to be worthy of a contempt application

I really would encourage everyone to read this post which I suggest is a measured, detailed and objective analysis of how many people were killed in 1971. It seems to me inconceivable that the post could be deemed in any way to be in contempt of court.

This is how the post starts:

The introduction to the 3 October order stated, in its historical introduction that '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...'.

This statement by the tribunal provides an opportunity to look at the question of how many people died as a result of the 1971 war - a controversial issue within Bangladesh. In certain nationalistic circles, to raise what I consider to be legitimate questions about the 3 million figure can draw strong emotions.

The tribunal in its order does not provide or refer to any evidence or material on record to support the figure of 3 million, treating it as a historical fact.

Although this number is treated as though it is an official government figure, there is as far as I can see little evidence, if any, to support it.

It is not uncommon of course for there to be widely different estimates of the numbers who died as a result of a war. People involved in any conflict have reasons to either over or under estimate the numbers who died. Moreover, it is difficult, in any post conflict situation, to make accurate estimates of the numbers of dead, as even recent wars in Iraq, for example, testify. Sarmila Bose's criticism in her recent book (see below) of the failure of the Bangladesh government after the war to have undertaken proper studied that would have provided more reliable estimates of the number who died do seem rather unfair.

Although writing about this subject is like sailing in perilous waters, I think it is fair to make the following points on this question.
The post then analyses where the 3 million figure came from and refers, as part of its detailed analysis to the biography (not 'autobiography', as the post in fact states!) of Sheikh Mujib's first foreign secretary who thought that Mujib had mentioned the figure of 3 million, which he considered to be a 'gross over statement' from an article published in Pravda. The post states:

Significantly, Sayyid A Karim, Bangladesh's first foreign secretary, supports the contention that Mujib picked the figure of 3 million up from these sources, when he wrote in a footnote in his autobiography of Sheikh Mujib that, 'As for the number of Bengalis killed in the course of the liberation war, the figure of 3 million mentioned by Mujib to David Frost in January 1972 was a gross overstatement. This figure was picked up by him from an article in Pravda, the organ of the communist party of the Soviet Union.'
The article then looks at all the other estimates of the numbers of those who died in 1971. The post ends by stating the following:

'Does it really matter how many people actually died in 1971?

It is perhaps important to note from the beginning that the actual number of deaths is not relevant to whether the particular accused at the International Crimes Tribunal have committed the offences of genocide or crimes against humanity to which they have been accused.

Moreover, whether 3 million, 300,000 or indeed even 30,000 were killed, the number of deaths in 1971 was very very large. And no-one can really deny that. There is enough substantiated evidence to suggest that whatever the exact number of deaths, a very large number of civilians were killed.

Yet, at the same time, arguably it is important for the sake of accuracy that people do not claim that a particular number of people died - whether it is too high or too low - which has no basis at all in the evidence.

As a result, coming back to the tribunal's remark in its 3 October order about the number who died, it may well have been preferable for it not to have mentioned these particular figures. Maybe the prosecution will provide evidence to support this figure in the course of the trial but, as yet, it has not done so.
People may disagree with the analysis contained in the blog - though I have not in fact seen any substantive critique of the points made in it - but how is this in contempt of court?

Nonetheless this is what the application against me says about this post:

'The contemnor ... made relentless efforts throughout the article to justify that the tribunal was absolutely wrong in mentioning the number of 3 million deaths and the number of 200,000 women raped in 1971 with reference to various unsupported, inconsistent and contradictory sources. From the comments made by the contemnor it is clearly apparent that he purposely and deliberately did so to make the observations and orders of the tribunal questionable. If the content of the article is considered in its entirety, the definite and conclusive message passed to the readers is that the core objective underlying the article is basically to malign the tribunal in the eyes of right thinking people of the society. In other worlds, the contemnor by his writing deliberately attempted to make the observations of the Hon'ble Tribunal questionable amongst the members of the public.
It is difficult to know what the applicant means when he says that blog 'refers to various unsupported, inconsistent and contradictory sources' since the point of the post is to consider the different estimates that have been made about the numbers of those who died. And what is the basis for saying that the 'core objective underlying the article is basically to malign the tribunal in the eyes of right thinking people of the society?' No that was not the objective of the post. It was to take the number of 3 million, and consider what evidence there was to support this estimate in an objective and dispassionate manner. Nothing more, nothing less.

----------------
* Apparently, according to Sayeed, there are at least five lawyers who have have been involved in the application. Apart from himself and Azad, there are the lawyers Enamul Kabir (Emon), Muksedur Rahman, and a female lawyer called 'Sheila'.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-52659883293192909602014-02-19T19:00:00.001+06:002014-04-20T14:29:03.496+06:00Fair 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.

I went to meet Mr Chakrabarty the registrar this afternoon, and he said that he could not give me a copy of the application as he did not have a copy having forwarded it to the judges. I asked him if he could ask the judges whether I could be given a copy, and he said that was not possible. Apparently, there is no requirement for a copy of the application to be served upon me unless the tribunal judges order it.

It is of course not possible for me to comment on the application in any details, since I have as yet not seen a copy of it.

I can only assume that the application is being made under section 11(4) of the International Crimes Tribunal. This states that:

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. (emphasis added)
Whilst my blog does contain some critical comment of the proceedings of the tribunal, it does not contain anything which comes within section 11(4) of the 1973 Act. Any criticism contained within the blog is entirely legitimate journalistic comment.

It is important to recognise that Bangladesh's own appellate division has clearly stated that criticism of court decisions is legitimate.

So, in the judgement and order dated 11.10.2010 delivered in the case of Riaz uddin Khan Advocate and another vs Mahamadur Rahman and others (Contempt Petition No. 12 of 2010 (unreported)), Justice Surendra Kumar Sinha stated at page 30 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…'
In the earlier judgement dated 10.08.2010 in the case of Raiz uddin Khan Advocate and another vs Mahamadur Rahman and others, (contempt Petition No. 05 of 2010 at page 75 (unreported)), Justice Sinha also held that:

"A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-63488603920354383872014-02-08T17:13:00.000+06:002014-03-04T13:13:19.771+06:00Further 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.
-----------------------

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

On 18 May, I first complained to the head of the Bengali service.

Dear Sabir,

I am writing this formally in your position as head of the Bangla service.

I am also copying in Behrouz Afagh who is head of the Asia Pacific region.
I would like you to investigate how the BBC published the last few paragraphs of the article
http://www.bbc.co.uk/bengali/news/2013/05/130516_mh_sukhronjon_bali.shtml

The particular paragraphs about which I am concerned come at the end of the article are as follows (as translated in English):

The report published in the New Age of Dhaka claims that Shukhoronjon Bali sent them a written statement from Indian prison. In this statement he describes the incident of kidnap and how he was pushed to India.
However, Ranvir Kumar, chief of the Prison Division of West Bengal, told BBC that it's almost impossible to take statement from a Bangladeshi prisoner and handing it over to a foreign newspaper. If any relative visits, the authority scrutinizes the Passport-Visa of the visitor.
However, through a source from West Bengal's intelligence BBC reporter Amitabh Bhatyashali came to know that the Dum Dum prison authority has already interrogated Mr. Bali and Mr. Bali informed the prison officers that he sent the statement through a prison guard by alluring him with money.
The intelligence sources informed further that according to Mr. Bali, that prison guard went to the border and handed it over to a smuggler.
The sources say that the prison authority has already identified that prison guard and started the process of his punishment.
This article was subsequently replaced by another article
http://www.bbc.co.uk/bengali/news/2013/05/130516_mh_sukhronjon_bali.shtml which contained a similiar set of paragraphs which can be translated as follows:

Then I did further inquiry on this and through an Intelligence source I came to know that the Dum Dum prison authority has already interrogated Mr. Bali and Mr. Bali informed the prison officers that he sent the statement through a prison guard by alluring him with money.
According to that source ( Intelligence) he (Mr. Bali) told the prison guard that he needs to send his statement to his country Bangladesh. Mr. Bali told him to meet a particular smuggler at India Bangladesh border.
Intelligence sources inform further that, the prison guard carried that statement to the border and handed it over to the particular smuggler. He received the promised amount of money.
The sources informed that, the name of that prison guard could not be found but prison authority has identified him and have started the process of taking punishment measures.
I have the following concerns about this article
1. The use of a single anonymous intelligence agency source.
I note that the BBC editorial guidelines state that

Any proposal to rely on a single unnamed source making a serious allegation or to grant anonymity to a significant contributor must be referred to Director Editorial Policy and Standards and Programme Legal Advice. (para 3.4.13)
The guidance then sets out a series of issues that the Director Editorial Policy and Standards would need to consider. ((http://www.bbc.co.uk/editorialguidelines/page/guidelines-accuracy-avoiding-misleading-audiences/)

Could you confirm whether or not the BBC bangla service referred this to the Director Editorial Policy?

It would seem to me that it is totally inappropriate for the BBC to rely in general on uncorroborated Indian intelligence agency sources and in particular to rely on a single intelligence agency source as it has done so in this story.

The guideline on anonymous sources should be particularly strictly applied in relation to 'intelligence agency' sources.

How can the BBC have any confidence at all that the intelligence agency source is credible in making this claim? I think as journalists operating in South Asia, we all now how completely unreliable intelligence agency sources in this part of the world are.

2. I should also add that the use of words also suggest that the journalist has a misunderstanding about the use of sources. The article says, 'through an Intelligence source I came to know ...' He has not 'come to know'. At the very most he can say that an intelligence agency official 'claimed ...' Of course, as I state above, the editorial guidelines would suggest that such a source should not be relied upon by BBC journalists.

3. There is also confusion about the number of intelligence sources. In one paragraph it says one source and then in another it says 'sources'. This raises questions about the crediblity of how the journalist actually sourced this story.

I am asking you that this section of the article be removed until the Director Editorial Policy and Standards has undertaken a proper review of whether it was appropriate to publish these claims on behalf of first the intelligence agency 'source', and also the intelligence agency 'sources'

Not that it should be of any significance in this complaint, but I should just say that I was the author of the New Age article referred to in the article.

I look forward to a speedy response on this matter, and the immediate removal of the relevant paragraphs
I wrote a follow up e-mail on the same day.

Dear Sabir,

Further to my previous complaint, I would like to raise a further concern ..

The afore-mentioned articles whose urls are set out in the previous -email have been written following an article in New Age, which is briefly mentioned.

However, the articles are written to give an impression that the information set out in the BBC article is (a) new and (b) raises question about the original New Age article.

However, all that the BBC article does is simply expand on what the New Age article has already stated without providing any reference to that.

It is therefore misleading and disingenuous.

The New Age article states:

On April 3, Bali was sentenced to imprisonment in a Kolkata court for 105 days imprisonment after pleading guilty for illegal entry into India under the country's Foreigners Act 1946. Taking into account the time already served in detention awaiting trial, he could be repatriated to Bangladesh any day.
It is therefore clear that Bali pleads guilty to an offence of illegal entry in Bangladesh. The article goes onto state

The first information report drafted by the Indian police on December 24, 2012 states that police officer Kuldeep Singh had 'observed suspicious' movement in the fields near the Indian border in Swarupnagar and that when challenged Bali had 'fled away.' When apprehended, the FIR states that Bali had told them that 'he was coming from Bangladesh to meet his brothers.'
The BBC reports gives no credit to the New Age report stating these things - and gives the impression that this is totally new information obtained by the BBC which is in contradiction to the New Age report.

If this article is going to continue to remain up on the website in some form, could you please ensure that it is re-written to make this clear, as currently it is highly misleading.
On 20 May, Sabir responded in the following way:

Dear David – thank you for the mail.

I have gone through your complaint.

Firstly, we never claimed this to be our original item. From the outset, it was mentioned that the New Age had reported it. In fact, in the radio two-way, the correspondent right at the beginning said most of the information he gathered confirmed what was reported by the New Age.

There were elements in the report which our correspondent had found which confirmed the New Age story. Since these information were gathered by the correspondent himself and not simply quoted off the New Age, no reference was made to the paper thereafter.

We decided to do our own follow-up story because, the New Age story alleged Mr Sukharanjan Bali was kidnapped by Bangladeshi police and handed over to the Indian border security force. This implied that Indian authorities were complicit in the illegal abduction and 'rendition' of a Bangladeshi national. Hence, our main effort was to find out how much the Indian authorities knew or did not know about Mr Bali's alleged abduction.

Therefore, we built on the New Age story, rather than re-produce it. This is BBC Bangla's normal practice – if we find a story in the local media interesting, then we do a follow-up, but never reproduce. All the information contained in the FIR and court documents were gathered by the correspondent by obtaining copies of the said documents, and not quoted off the New Age. Hence, no reference was made to the paper.

In the course of his investigation, our Calcutta correspondent did interview the head of the state's prison services, Ranvir Kumar. It was Mr Kumar – speaking on the record – who contradicted the New Age story, by saying it would be impossible for anyone to meet Mr Bali in prison and write down his statement.

We chose to use information given anonymously by an intelligence officer because a) I have full confidence in the correspondent's source; b) the information appeared to confirm that Mr Bali had indeed sent a letter to Bangladesh via a prison guard. This confirmed New Age's line that a statement was sent by Mr Bali, but contradicted the method of communication.

However, if a perceived lack of attribution to the New Age is your concern, then I can assure you we will ensure such attribution as we continue to follow this story from the Indian side of the border.

Thanks

Sabir
I then responded to Sabir on the same day in the following manner.

Dear Sabir,

Thank-you for your response. But I do not I am afraid accept your substantive points that the article was fair.

I did not hear the radio two-way, so I am just going by the articles that I have seen.

1. A major part of the second story related to the Police FIR in which Bali states that he came to meet his brothers and his guilty plea in court. This was reported in the BBC website story as entirely new information, not information that was in fact included in the original New Age article. The BBC article therefore gave the appearance that this was new information which contradicted the New Age article. That this was the appearance is clear from the way the BBC article was reported in the Daily Star newspaper in Dhaka which had a headline ''Bali was not forced to flee' with a smaller sub-title 'Says BBC report quoting his confession to Indian magistrate' Also the Daily Jonokhonto had a first paragraph, which prefaced a near identical copy of the BBC article which states: ''This means, the allegation of abduction of Sukhoronjon Bali, witness of the case against convicted Jamaat leader Sayeedee, by the law enforcement agency has been proved to be false.' Apparently this is the way other parts of the media in Bangladesh have read your story.

Whilst clearly you cannot take responsibility for the way other papers might inaccurately interpret your pieces, I would suggest that their reading is a pretty natural reading of the BBC article.

2. You say, 'Our main effort was to find out how much the Indian authorities knew or did not know about Mr Bali's alleged abduction.' If however that was the main purpose you went about it in a rather odd way - you did not speak to any political or senior police person who would have given a response. And the article does not seem to deal with that issue at all. In any case, I have no problem in this article focusing on the credibility of the New Age allegation - my concern is the way the report was written.

3. You say, 'if we find a story in the local media interesting, then we do a follow-up, but never reproduce.' That is fine, I would not expect you do otherwise. My point is that by failing to provide inappropriate context in the story you dealt unfairly with the underlying story. For example, it is very notable that you did not even mention the Human Rights Watch statement (published very soon after New Age's articel) that confirmed a statement had been made by Bali to the effect that he had been abducted by law enforcement agencies. That omission I feel is very telling. If you were doing a follow up, why not refer to the HRW statement, and perhaps even call them up and ask them how they know that Bali makes this claim?

Also, it is notable that you did not think to consider whether all prisoners in Bali's position - that is to say illegally found in India - and advised to plead guilty so that they just have a short sentence and can be repatriated. Also, in this context of pleading guilty, you did not consider what Bali said in the statement quoted in the New Age article that he had initially tried to tell the police when he was arrested: 'They tortured me and asked me what I had been doing there. I tried to narrate the course of events that had taken place till I was handed over to the BSF. They probably did not find my answers satisfactory and I was beaten even more profusely.' Surely that would have been appropriate to refer to?

4. I have no criticism of your interview with the head of the state's prison - and I have not made any. It was on the record, and the BBC obviously has the right to publish it (however inaccurate it may be).

5. In relation to the interview with the single anonymous intelligence officer. Could you clarify whether the editorial guidelines were followed and it was in fact referred to the Director Editorial Policy and Standards and Programme Legal Advice? In this context, does that person(s) refer to you?

6. You go onto say that you were justified in using this quote as 'a) I have full confidence in the correspondent's source; b) the information appeared to confirm that Mr Bali had indeed sent a letter to Bangladesh via a prison guard.'

Think about it. You are repeating a conversation of an anonymous intelligence officer repeating what a prisoner supposedly said to prison guards - and giving it credibility. Does that not seem inappropriate to you? Apart from the question of credibility, what about Bali's rights here. He is a vulnerable prisoner, with whom you had no opportunity to seek a response - is it right that you publish an allegation that he has breached the prison rules and perhaps even committed a criminal offense. According to the Editorial guidelines, these are the kinds of issues that ought to have been considered before publishing this quote. Were they?
On 25 May 2013 I then made a complaint to Nikki Clarke, who was at that time BBC World Services Head of Journalism, Africa, Americas, Europe, East and South Asia.

Dear Nikki,

I had made a complaint to the the head of the Bangla service Sabir Mostafa but as the e-mail below shows I am not satisfied with the response and would like someone not involved in the publication of the article to consider my concerns.

I have set these concerns out in a number of e-mails, which I am sure Sabir can forward to you. However they are I think my concerns are perhaps best summarised in this article that I have written about the [BBC] article

http://bangladeshwarcrimes.blogspot.com/2013/05/sukharanjan-bali-bbc-and-bangladeshs.html

It is my view that the [BBC] article needs to be re-written to provide appropriate context and information as well as the removal of the quote from the anonymous intelligence agency
On 11 June 2013, I received the following response

Dear Mr Bergman,

Thank you for your e-mail.

I have read both the BBC and the New Age articles carefully and have examined the points you raise in your mail and expand in your link. I don't think the BBC Bangla article has been successful in reaching the aims that it set out for itself. It was a perfectly proper response to the New Age story to try to find out what the Indian authorities may or may not have known about the allegations of extra judicial transfer in the Sukharajan Bali case. Starting from a detailed review of the original FIR report and speaking to both on and off the record sources at the prison a proper way to start. I accept your point that the Police FIR, is referenced in the original New Age article, but not in as much detail as the BBC piece. There was no intention in the BBC piece to imply that the FIR documents were new information after all they would be available to anyone who sought them out. The BBC was not able either confirm the kidnap/rendition angle of the New Age story nor did it seek to undermine it. As you say we cannot control the interpretation put on the article by other publications.

You are right about the absence of context. I think that main problem with the story as it appears online is that it assumes too much previous knowledge from the reader. Before the report dealt with what the correspondent in Kolkata had discovered, it should have had a clear outline of what was already in the public domain, including appropriately credited reference to the New Age article. Both pieces were in need of more work before publication. To be absolutely clear both stories should have remained on line, the final version was an updated version and normally would have been a separate story from the original one, unfortunately a technical error was made and the second story over wrote the original, when this error was noted, the background material which had been included in the original was added to the new piece.

With regard to the issue you raise about the use of a single anonymous Intelligence source. There was confusion in Sabir Mustafa's original response, the Correspondent referred to sources in their online piece and their information was not based on a single anonymous source. The sources did in fact confirm your report that a message had indeed been sent by Mr Bali to Bangladesh, the difference was in how it had been delivered. The BBC Bengali service story, only reported what the authorities already said they knew and actions they said they had already taken, and they did think the implications of their reporting.

I do find that your complaint is partially upheld, the piece did need considerably more explanation and context to deliver a clear and full picture to the audience. In this regard it did not meet the Bengali services normal high standards and I have discussed this with the editor.

If you are not satisfied with my response you have the option of escalating your complaint to Stage 2 of the BBC's complaints process. I have attached the appropriate link to guide you through this. Please be aware you if you wish to take up this option you need to do so within 20 working days of receiving this reply. http://www.bbc.co.uk/complaints/complain-online/

Yours sincerely,
Nikki Clarke.
Head of Journalism, Africa, Americas, Europe, East and South Asia
5th Floor NBH
As you will note, the complaint was partially upheld. It accepted that there was lack of context to the article. However, the BBC did not consider that there was a problem in the use of intelligence sources, asserting, now, that there was more than one source - though it was clear that in the original . The fact that this was simply not accurate is not considered. The complaint also does not respond to a number of other issues that I raised

I had thought of appealing this decision further, but decided that I had spent enough time on this matter. I had made my point.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-72202559042824012052014-01-04T11:41:00.002+06:002014-01-04T11:41:28.606+06:00Rolling blog on curent political situation in Bangladesh
A sister blog to this one is carrying commentary and analysis on the current political situation in Bangladesh as the 5 January 'election' approaches

Click here to go to Bangladeshpolitico

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-27348314919950734602014-01-04T11:36:00.001+06:002014-01-04T11:43:38.512+06:00The appellate division and Quader Molla's execution

For commentary and analysis on Bangladesh's current political situation
David Bergman

What was the basis by which the appellate division decided that Abdul Quader Molla should be executed?

In two earlier articles following the decision of the appellate division to impose a death penalty on Molla, I had raised two issues.

The first one was about the sufficiency of evidence in relation to the charge that resulted in Molla being executed.

And the second concerned the decision of the tribunal to limit the numbers of witnesses that Molla was allowed to bring to testify to the court.

These articles were written before the appellate division had published its written judgment.

In early December, the judgment was finally published - with his execution taking place very soon after. Whilst nothing can change the situation for Molla, one at least has a chance to see how the appellate division dealt with these issues?

I write this at a time when the Awami League is using the war crimes trial as part of its justification with proceeding with the 5 January election, and not to have sought an earlier compromise with the BNP. 'Had Prime Minister Sheikh Hasina stepped down as BNP demanded, Quader Molla would not have been hanged,' the prime minister's son recently stated.

Numerous articles have in recent weeks are also being written in the local media in uncritical support of the current tribunal process.

Professor Rafiqul Islam, a professor of law at Macquarie University in Sydney, Australia has argued in an article published in the Daily Star that those convicted by the tribunal was 'overwhelming'.

Convener of the Canadian Committee for Human Rights and Democracy in Bangladesh has stated in an article in the same newspaper that the tribunal 'uphold all possible rights of the accused'.

And the founder and executive director of the South Asia Democratic Forum, in another article in the Daily Star has argued that the tribunal, 'compares favourably with other tribunals being conducted around the world'.

And on Friday, a new poll suggests that around three quarters of the adult population of Bangladesh were 'satisfied' with the tribunal - which if true suggests a big turn around from polls of only a few months ago.

No evidence to charge him
Of course the key issue about Molla was whether on the charge he was executed there was sufficient credible evidence to justify conviction

It was alleged that Molla had been involved in the massacre of a family on 26 March 1971.

This particular allegation has a very strange beginning. It was not amongst the prosecution's initial charges – and the prosecution applied some time later for it to be added.

Significantly, at the time the court indicted/framed the charge against Molla - claiming that the family was slaughtered in his presence and under his leadership - there was absolutely no evidence of any kind to support the particular allegation.

At that time, on 28 May 2012, the only piece of evidence that the tribunal had in its hand concerning this offence was the statement given to the investigation officer by the massacre's sole survivor, Momena Begum.

This statement however did not claim that Molla was present at the scene or was in any way involved in the offence.

She blamed it on 'Biharis' who 'entered along with the Pakistani soldiers.'

Momena in fact does specifically tell the officer that one person was present – and it was not Molla. 'I know all the Biharis. Aktar Gunda was with them. He was known as a Gunda (Criminal) in our locality,' she stated.

Now, before prosecutors present a case to court, and before a court agrees to charge that person and put him on trial, there has to be evidence that the person committed the crime in question.

Extraordinarily, in relation to this charge there was no evidence. One must wonder whether on this point alone, proceedings on this charge should have been voided.

The majority judgment in the appellate division decision given by Justice Sinha, however, never remarked on this point.

Molla's identification
Now, lets then look at the subsequent trial.

Momena came to court and provided an account different to the one that she had given to the investigation officer (set out above) and stated that Molla was indeed present at the scene and was a leader of the men.

In her testimony she said that she heard her father, as he ran towards the house that day, "Qader Molla will kill me." In cross examination she then says that after the incident two men (both now apparently dead) told her that it was Molla who was present at the scene.

Both of these are hearsay identifications – that is to say identifications through what other people have told her.

However at the end of her evidence, when asked to identify the man who was present, she herself identified Quader Molla. "He was young and not aged enough then. He used to wear panjabi then,' she said.

In court she said that she was hiding under the bed at the time of the attack.

Could a 13 year old girl have had a proper look at Molla from under a bed so that 42 years later she could identify him so definitely even making a comment about what clothes he wore?

The appellate division did not look into this issue, simply repeating what the trial judgement had said that, Momena 'is a very natural eye-witness'

In 42 years, no one else told of Molla's involvement
But there are other good reasons to have serious doubts about her identification.

Momena had, according to the evidence, not told anybody in the last 42 years that Molla had been present – until she had come to court.

She was asked about that, and said that she had been scared.

Fair enough. But surely it is inconceivable that during the whole of the last 42 years she did not mention to family or to friends that she had seen Molla, a man that subsequently became a well known politician, lead the gang that killed her family?

This was not a matter considered by the appellate division judgment.

Appellate division discards previous contradictory statements
And then there are the two previous statements where she blamed Biharis for the murder – and where she never mentioned Molla as being present or involved in her family's murder.

One of these has already been mentioned – the statement to the investigation officer in 2010

But in addition to that, in 2007 Momena gave a statement to a liberation war museum researcher where she said was not even present at the time of her family's massacre, having gone to her father-in-law's house. Again, she never mentioned Molla's name, but told the researcher that she had heard about the killings later and was told they were done by 'Biharis'.

How did the appellate division deal with these previous statements which go directly to the question of the witness's credibility - one which was to an investigation officer, both of which were inconsistent with each other, and both also inconsistent with her subsequent testimony in court.

It dismissed them.

The appellate division held that it was not 'evidence', in effect not worth the paper it was written on.

'It was not expected from the investigating officer to record the statements of the witnesses,' Justice Sinha said. Any omissions made in a statement by a witness 'may best,' he said, be put down to witnesses 'omitt[ing] to make some statement before the investigating officer' (p.198)

In addition, he held that the rules of the tribunal did not allow a witness to be questioned by defence lawyers about anything which the witness did not state in her testimony (examination in chief) in court.

That is to say, he ruled that nothing that Momena had stated prior to the testimony he or she had given in court – including both her statement to the investigation officer and to the liberation war museum - could be used to raise questions about her credibility. He said: 'The rules also do not provide for taking any contradiction of the statement of a witness made before the tribunal with any other statement made elsewhere and no adverse presumption could be drawn therefrom. (p.199)

There is a way of interpreting the ICT rules of procedure to come to Justice Sinha's conclusion – but it is one that is extremely conservative, and places the ICT outside normal principles of jurisprudence applied in any reasonably developed criminal justice system in the world, including of course in the ordinary criminal courts of Bangladesh.

Any rule of procedure that holds that prior statements given by a crucial witness to an investigation officer or to a researcher cannot be used by a court to consider the credibility of that person's oral statement obviously creates a serious risk of miscarriage of justice.

Sinha's ruling allows a person to come to court, make an allegation that he or she had never made before, and which is also entirely contradictory to statements that the person had made in the past, and then be treated by the court as a credible witness, ignoring the contradictory statements.

Sinha's ruling also appears not to be consistent with other provisions of the International Crimes (Tribunal) Act 1973 which specifically states that there should be no 'technical rules of evidence' and directs the court to 'admit any evidence … which it deems to have probative value.'

In addition, of course, statements given to investigation officers have been at the heart of the tribunal's decision making on whether a person should be charged with an offence.

If the statements are not 'evidence' as Justice Sinha stays, then why are the courts relying on them in the process of charge-framing?

It is important to note that this ruling will effect every other trial at the ICT.

Circumstantial evidence?
Justice Sinha did add in his appellate division judgment that Momena's statement has been 'corroborated by the circumstantial evidence' of 6 other witnesses.

However even assuming that every statement given by these witnesses relating to his activities in 1971 – some of which was hear-say – were considered completely credible, they still do not provide any corroboration of any kind to Momena's allegation regarding the presence of Molla at the scene of the incident, which is the matter in hand to prove this offence.

Moreover, Justice Sinha has an interesting understanding about the import of so called 'circumstantial evidence' - suggesting that, 'These circumstantial evidence are approximate to truth and be preferred to direct evidence. Circumstantial evidence is the best sort of evidence because, as the saying goes, "men may lie but circumstances will not."' (p.235)

Restricting witness numbers
It is difficult to see how, on the basis of the evidence available, this particular allegation would ever have resulted in most jurisdictions in a prosecution against Molla - yet alone one that went to trial and result in a conviction and then execution.

However, there is another important issue relating to Molla's ability to defend himself – which has affected all the other cases before the tribunal.

A number of articles written about the tribunal assert that the accused have all the rights available in any other court and in any other international tribunal. A look at the issue of witness numbers is just one reason why this is such a big lie.

Both of the tribunals has restricted the number of defence witnesses in most of the trials to between three and six, even though they trials involved as many as 23 separate charges and when the prosecution had no restrictions on witness numbers

In the Salauddin Quader Chowdhury trial, the prosecution brought 41 witnesses to the tribunal to prove 23 offences. the defence was restricted to only calling five witnesses.

In the case of Abdul Alim the prosecution was allowed 35 witnesses, but the defence was restricted to three witnesses to disprove 17 offences.

And four witnesses were permitted in Motiur Rahman Nizami's defence relating to 16 charges.

In the Molla case, the tribunal restricted the number to 6. In effect one witness for each offense.

This restriction is significant as the most obvious characteristic of a fair trial is allowing an accused person to present his or her case - and limiting witnesses inevitably precludes the ability of the accused to do just that.

Courts around the world do have the power to restrict the number of defence and indeed prosecution witness – but this would in general terms only happen when the statements were not considered 'relevant'.

The Bangladesh tribunal, however restricted the defence witnesses to a particular number, without even knowing what witnesses the defence wanted to bring.

The reason the tribunal gave for this restriction was because in its view the accused lawyers only had a right to bring 'alibi' witnesses (i.e witnesses who claim that the accused was not present at the time) and had no right to bring any others witnesses that could disprove the prosecution case.

'In a criminal trial, defence may examine witnesses in support of his defence and not to disprove prosecution case… [W]e are constrained to reiterate that the defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges beyond reasonable doubt,' the judges in the Molla case stated when restricting the witnesses he could bring to six.

Yes, the burden is on the prosecution to prove its case 'beyond reasonable doubt', but this principle has never meant – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, unreliability of prosecution witnesses or raise any other kind of relevant defence.

Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh. And preventing an accused from doing so, is stopping an accused from properly defending himself.

It is as simple as that.

As far as I can see from the judgment, the appellate division is entirely silent on this issue, which seems to suggest that the most senior court in Bangladesh approves not only of the restriction in witness numbers but the tribunal's rationale – which applies to all other accused.

It is of course true that the initial submission by Molla's defence of a long list of witnesses names, close to 1000, was ridiculous – but when this matter actually came before the court, the defence sought to call a reasonable number of 20 witnesses. This was however rejected by the tribunal.

We don't know what Molla's other 15 witnesses – assuming he was allowed to have had 20 - would have stated, but prohibiting them from giving evidence cuts across his right to put forward his defence.

In conclusion
So, we have a situation where Molla was put to death on the basis of a witness who claimed in court that the accused was present, but who had in the last 42 years, as far as we know, never made such a an earlier claim, and who had also previously given two statements both of which did not mention that Molla was present at the crime scene and one of which stated that she was not even present at the time of the incident – and the appellate division not allowing these statements to be taken into account by a court.

And then we have a tribunal which precluded Molla from calling witnesses to present his defence and an appellate division apparently accepting this restriction, along with the reasons given for the restriction which cuts across the basic principle of defence lawyering.

Supporters of the tribunal point to the legal rights given to the accused including that of having a lawyer to defend themselves, with all the rights of cross examination of prosecution witnesses.

However, these rights mean nothing in practice if the accused is not allowed to bring witnesses to the court defend himself, he has no right to cross examine a witness on previous statements which go to the heart of a witnesses's credibility, and, of course, if the court has no right to take previous contradictory statements of witnesses into account in its assessment of the evidence.

And those commentators mentioned at the top of this article should actually find out a bit more about the working of the tribunal before writing ideologically driven articles about 'overwhelming evidence' and 'appropriate procedures.'

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-20249069043771141642013-12-16T22:37:00.001+06:002013-12-19T15:09:23.607+06:00Molla execution: Arguments in appellate division review application

Below is a detailed note about what took place at the appellate division on Thursday 12 December, the day it passed its order dismissing the applications on behalf of Abdul Quader Molla seeking to overturn the court's own decision to impose a death penalty

To see what happened in the first day of hearing, go to this page (which contained rolling coverage of that and other days) and fine the end entries at 7.20 pm and 8.50 pm on Wednesday 11 December]

This does not contain any commentary, just a description of the legal arguments at the hearing,

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I missed the first few minutes of the hearing of the appellate division on Thursday. From speaking to colleagues I understand that at the beginning of the start of the hearing, the court told Razzaq that he did not need to argue anymore on the issue of whether the court has jurisdiction to hear the matter, and that they wanted him to continue on the assumption that this was the case.

I had, at the time understood that the court had accepted that it had a right to hear the review, but it appears that there was no clear order by the court that it accepted on principle that it had maintainability.

It is therefore possible that the court did not in fact decide that it had the right to review its own judgment.

Though defence counsel Abdur Razzaq wanted to provide more arguments as to why the court had the right to review its own judgement, the court urged that he should move onto the merits of their arguments.

Momena's statement to the investigation officer

Razzaq made the following argument related to the failure of the appellate division in its judgment to take into account the statement which was given to the investigation officer by Momena, the sole witness in the charge for which Molla was put to death,

The chronology of the background to this issue is as follows - this was not discussed at the hearing at in any detail but is set out here for better understanding of the relevance:

In September 2010, Momena gave a statement to Mohana Begum, the deputy investigating officer in the case, concerning the massacre of her family. In that statement she told the investigation officer that the men who entered her family's house 'were Biharis. They entered along with the Pakistani soldiers.'

Momena tells the officer that one person was present. 'I know all the Biharis. Aktar Gunda was with them. He was known as a Gunda (Criminal) in our locality,' she stated.

Molla's name is mentioned twice in the investigation officer's report. Momena is quoted as saying: 'When the war broke out, [Akter Gunda] joined with Kader Molla of Duaripara and started to kill people in Mirpur' and, 'I heard about Kader Molla and Aktar Gunda and their force from people around.'

However, the statement contains no allegation that Molla was present at the time of this offence.

On 17 July 2012, Momena gave oral testimony in court. She stated: 'My father was running towards the house and said "Qader Molla will kill me." The Biharis along with Akter Gunda and the Pakistan army were also coming behind him to kill my father. My father entered into the house and closed the door.'

Momena went onto tell the tribunal that her father then told her and her sister Amena to hide under the bed. 'The Biharis along with Quader Molla came in front of the door and said, "Hey ... bastard. Open the door or we will throw a bomb,"' she said.
'They then threw a bomb. My mother opened the door with a Da [local arms] in her hand. They shot my mother after opening the door,' her oral testimony continues.

'Quader Molla pulled the collar of my father's shirt when he went to catch my mother ... They forcefully dragged my father out and killed my mother. They killed my sister Khodeza and Taslima. They killed my brother Babu, who was two years old by forcefully dragging him. He was crying to call out for our mother. On hearing [Babu's] crying Amena shouted and they pulled Amena and tore apart her dress and started to rape her. Amena was crying loudly and then stopped.'

She added later in her testimony that, 'A person called Kamal Khan who served tea to the freedom fighters told me that "Quader Molla killed my parents". My witness to my marriage, Akkas Molla also told me the same thing [about Molla] as Kamal Khan had done.'

She then identified Molla in the dock saying, 'He was young and not that old then. He used to wear Panjabi at that time.'

On 18 July, the defence lawyer cross examined Momena, but failed to ask her about the contradiction between what was stated in the investigation officers statement and what she said in court.

According to the defence lawyers, due to this and other omissions, the lawyer was sacked and replaced.

In November 2012, the defence lawyers made an application to the tribunal requesting that the witness, Momena, return to court so she could be asked this and four other questions.

The tribunal rejected the application stating that making the application was 'a tactic to cause unreasonable delay' and there was no legal provision to recall a witness for 'cross-examination'.

In the tribunal judgment, there was no mention of the inconsistencies between Momena's statement to the investigation officer and her subsequent testimony.

This issue was brought up by the defence lawyer in their appeal, but the appellate division rejected arguments.

Justice Sinha stated in the majority opinion in the appellate division judgement that :

- Section 161 of the country's Code of Criminal Procedure and rule 265 of the police regulations set out guidance to investigation officer for the recording of their statements of witnesses
- Section 162 of the Country's Code of Criminal Procedure allows an accused to contradict a witness on the basis of the statement given to the investigation officer.
- The provisions of the Code of Criminal Procedure is not applicable to the International Crimes (Tribunal) Act 1973
- The rules of the tribunal are 'totally silent as to the manner of examination of a witness by the investigation officer. It may be either orally or in writing, there is nothing in the rules therein guiding the procedure and the manner of use of the earlier statement of such witness in course of the trial.'
- It was 'not expected from the investigating officer to record the statement of the witnesses in accordance with section 161 of the Code. If he has examined the witness in a slipshod manner, no exception could be taken for such examination.
- If there are any contradictions between these investigation officer statement and what is said in court, 'the best [that can] be said [is] that the witnesses omitted to make some statement before the investigation officer as they were not asked properly.'
- In any case, the rules of procedures of the ICT make it clear that the defence can only show contradiction between what a witness says in court. Section 53(ii) of the Rules of Procedure states that: 'Cross examination shall be strictly limited to the subject matter of the examination of in chief of a witness but the party shall be at liberty to cross examine such witness on his credibility and to take contradiction of the evidence given by him.'
This means, Sinha stated that contradiction 'can be drawn from statements made by a witness in his 'examination-in-chief' only, not with respect to a statement made to the investigation officer of the case in course of investigation.'

In arguing the merits of the review, Razzaq argued that Sinha's argument that statements made to an investigation officer could not be subject to contradiction was an 'error apparent on the face of the record' – the test required for succeeding in a review.

He argued that section 53(ii) allowed a witness to be cross examined on issue of credibility. He pointed to the wording in that section that stated, 'the party shall be at liberty to cross examine such witness on his credibility'.

He said that this 'credibility' included what a witness 'said and did not say to an investigation officer.'

After questioning by Justice Sinha about the section, Razzaq emphasisesthe word 'but' in the section, and pointed out that whilst the subsection did say that 'Cross examination shall be strictly limited to the subject matter of the examination of in chief of a witness' it then goes onto say 'but' and then 'the party shall be at liberty to cross examine such witness on his credibility …'

'This is a very important "but" he said.

He said that if the judges wanted to limit contradiction to only that with examination-in-chief, 'this is not enough'.

Razzaq then argued that a statement to an investigation officer was 'evidence'. He read out rule 2(9) of the Rules of Procedure (ROP) which states:

"evidence" means all statements which the Tribunal permits or requires to be made before it by witnesses, and it includes all other materials, collected during investigation, placed before the Tribunal in relation to matters of fact;
He emphasized that 'evidence' includes 'all other materials, collected during investigation'

'Statements made to an investigation officer are also evidence' Razzaq said.

He then pointed to Rule 11 of the ROP which states:

'After completion of investigation, the Investigation Officer shall submit an Investigation Report together with all the documents, papers and the evidence collected during investigation of offence(s) as specified in the Act committed by a person(s) before the Chief Prosecutor.'
He also pointed to rule 18(1) of the ROP, which states:

Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare 8a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.
He then pointed to provision of the Act which states specifically that the case diary could not be used by the defence.

Rule 8 of the ROP states:

'The defence shall have no right to examine or use the Case Diary in defence of a case.'
Razzaq argued that the case diary was specifically excluded, but there was no such exclusion of statements of the investigation officer statements. 'I want to ask your lordships the question. If the the rules specifically exclude the case diary, then not the statements from taken by the investigation officer?'

He then pointed to rule 57 of the ROP, which states:

The Tribunal shall apply these Rules which will best favour a fair determination of the matter in issue before it and are consonant with the spirit of the Act. '
He then argued that 'a fair determination of the matter' required that the statements made by the investigation officer are considered.

He then referred to rule 57(2) [This will be added later]

Razzaq then moved onto section 10 of the Act. And read out sub-section(h) which states:

'(h) the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question;'
Razzaq said that the Act provided no restriction on cross examination. 'The tribunal is totally free' he said. 'If the framers of the Act wanted to limit the cross examination and exclude the questioning of investigation officers statement, they would have said so.'

'There is nothing in section 10 that precludes my right to cross examine witness about investigation officer statement, so the appellate division judgement is an error on the face of the record,' Razzaq stated.

Razzaq then wanted to refer to the judgment of Justice Wahab that had given a dissenting judgement. However Justice Wahab stated, 'Thre is no use to refer to my judgment. I will be embarrassed if you do.'

Razzaq then referred to section 19 of the 1973 Act which states:

'(1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.
He emphasized the need for 'no technical rules of evidence'

(2) A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.

Complete Justice: Jail Code and Warrant Execution legality
Razzaq then moved on from merits and stated that in the court, when passing its order, 'must do complete justice'

He referred to article 104 of the Constitution which states:

'The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.'
Razzaq then began to discuss the issues of the jail code

The court however were reluctant for these issues to be discussed saying that the review was only about sentence. However Razzaq argued that whilst that was so, in passing its order on this matter, the court must do 'complete justice' and this required them to take into account these other matters. 'The court has the power to pass any judgment. What other court can I go to about these matters?' he argued

The court finally allowed him to do make his points.

Jail Code applicability: He first raised the issue of the jail code. He argued that rule 991(vi) states that an execution should not happen before 21 days has elapsed. He said that this reflected a government order in 1936. 'The jail code is merely the order of government from British times,' he stated.

He pointed out that section 20(3) stated, 'The sentence awarded under this Act shall be carried out in accordance with the orders of the Government,' and that this referred to the jail code and so government order meant that the 21 days applied.

He said that the Jail authorities have been following this newly adopted code since June 2010.

He said that every other part of the organisation of the execution had followed jail code provisions, 'so why was the government not following this provision'

He also argued that the tribunal had assumed that the jail code had jurisdiction.

He pointed to rule 991(1) of the jail code that states that after being informed of the judgement, an accused should be given 15 days to decided whether or not to seek a pardon from the president. And then he pointed to section 991(i) as stating that a person should be given 21 days before execution.

He also argued that the jail code cannot be implemented arbitrary – and not applied unfairly for just one person.

Warrant of Execution: Razzaq then argued that the warrant of execution was not done legally.

He argued (see this to read details of the argument made by defence) that only the court imposing the sentence of death can sign a warrant of execution – but that the warrant of execution in this case was signed by the International Crimes Tribunal rather than the appellate division.

'So Mollah cannot be executed without curing this,' he said. 'And after than have to wait 21 days.

Attorney General's response
The attorney General then made his arguments in a short response

He first of all made a point concerned with 'maintainability' and said that the argument of the government was not to curtail the power of the court in any way. Court can make any 'suo moto' order it wishes.

In relation to the argument about what can be subject to 'cross examination' he pointed to section 8 of the Act which details the establishment of the investigation agency

He then discussed rule 53(ii) above, and argued that it applied as suggested by the appellate division – and that contradiction of a witness could only take place in relation to what was stated by a witness at the cross examination.

He pointed to Rule 11 of the ROP and stated that there was nothing there that suggested the statements to the investigation officers is 'evidence'

He then moved onto the issue about the jail code and pointed to section 23 of the Act:

The sentence awarded under this Act shall be carried out in accordance with the orders of the Government.
And section 26 of the Act which states:

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force'
'The ministry of home affairs has sent a letter to the jail authority', he said

Further Defence arguments

There was a short break, and then Abdur Razzak made some further arguments.

He said that case law showed that in order for a sentence to change it needed to be 'manifestly inadequate and unduly lenient' and read out case law to this effect

He said that ICT has imposed a sentence of life imprisonment. He said that the appellate division itself had stated that 'life is life' and argued how can it be that a life sentence is 'manifestly inadequate and unduly lenient' .

He said that whilst Justice Sinha has at one point said in the appellate division judgement that the sentence was inadequate, he had not said that it was 'manifestly inadequate' and had not laid out any grounds for thinking so

'There was no finding by the appellate division that the sentence was "manifestly inadequate".

He also added that another ground was the failure of the court to call for the statements made by Momena from Jallad Khana – however he did not go into this in any detail

[This referred to a statement given by Momena on 28 September 2007 to a researcher, employed by the Liberation War Museum's annex and memorial at Jallad Khana (execution ground) in Mirpur.

In the statement, she states that 'Biharis surrounded [Momena's father's house] and took [her father] away.'

It also states that Momena had told the researcher that she was not present during the incident, and only heard about it later: 'Because the elder daughter of Hazrat Ali, Momena Begum, left for her father in law's house two days earlier, she remained alive. ….After a few days the elder daughter of Hazrat Ali Momena Begum knew everything about what happened, but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.'

According to the defence lawyers Momena's statement to the liberation war museum only became known to them near the end of the trial in October 2012 when the investigation officer mentioned in her cross examination that she had arranged to interview Momena after contacting the liberation war museum's annex at Jallad Kanna. This resulted in the defence lawyers visiting the place, and finding copies of her statement.

In January 2013, at the time of closing arguments, the defence made an application to the tribunal asking that it direct the museum to produce the original document. A copy of a photograph of Momena's statement was appended to the application.

The tribunal rejected the request saying that the 'photographed copy' of the alleged document would though 'be taken into due notice at the time of passing our final verdict.'

The tribunal's judgment does mention the statement but held that it could not be used to consider the credibility of Momena as the copy given by the tribunal had not been authenticated, that they had not been given to the court as part of the defence papers earlier in the proceedings, and it had not been subject to judicial questioning and scrutiny.

'Inaccuracies or inconsistencies between the content of testimony made under solemn declaration to the Tribunal and their earlier statement made to any person, non-judicial body or organisation alone is not a ground for believing that the witnesses have given false testimony,' the tribunal stated in its judgment.

In the appellate division, the tribunal supported its decision not to recall Momena to be re-examined on the Jallad Kanna statement. Justice Sinha stated: 'I want to point out here that there is no scope on the part of a tribunal to consider extraneous facts to bring those facts in its judgement which are not legally admitted into evidence.']
Razzaq then summarized his final judgements:

1. The review was maintainable – i.e could be heard by the appellate division

2. That it has been show that there was 'an error apparent on the face of the record'

3. If petition is denied, then, the court should take into account Article 104 and its ability to pass orders for 'complete justice'

4. That around the world it is now accepted that accepted that one should not take a life

The Attorney General was asked if he wanted to respond and he said no.

Final order

There was a short adjournment and the court then came back and said that both of Molla's applications were 'dismissed' . There were no observations.

David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-37305358550171318472013-12-10T18:48:00.002+06:002013-12-19T14:55:25.204+06:00Molla's execution

What is happening to Quader Molla. Updated when new information comes in
You will need to update your page

MONDAY, 16 DECEMBER

10.40 pm: What happened at the appellate division?
I have written a descriptive note on the legal arguments that were made at the appellate court on Thursday 12 December by the defence counsel and the attorney general, prior to the court that same day dismissing the defence applications for review of its decision sentencing Molla to death.

SUNDAY, 15 DECEMBER

2.38: What to think about Post Molla violence? - see below

2.37 pm: Jamaat defence lawyers urge Molla supporters to protest peacefully against judgement
Interesting. Abdur Razzaq, the Chief Defence Counsel, International Crimes Tribunal, and also a member of the political leadership of the Jamaat, has sent around this press release to journalists 'urging' the 'followers and supporters of Mr. Abdul Quader Mollah ....to express their grief in a peaceful manner. Because one wrong cannot justify another.' His statement reads:

International criminal law experts are unanimous in their opinion that the law under which Mr. Abdul Quader Mollah was tried was flawed and defective. This has led even countries where capital punishments are allowed to make representations to the Government to halt the execution. The defence has also made it clear that both the ICT and Supreme Court judgments are wrong.

While we sympathise with the sentiments of the followers and supporters of Mr. Abdul Quader Mollah, we urge upon them to express their grief in a peaceful manner. Because one wrong cannot justify another. Equally we call upon the police and the law enforcing agencies to allow citizens to exercise their fundamental right of freedom of expression without any fear or intimidation.
This is very welcome. I have in the past said that the Jamaat defence team must be active in reigning in their supporters from committing violence - most recently in relation to the death or Mustafa Howlader

2.20 pm: What to think about Post Molla violence?
On Tuesday (see below at 1.26 pm), before Molla was executed, I wrote this about the likely violence that would result from any execution:

One man, Molla will be executed by the state, and the question is - how many further deaths will also be directly caused by the state's decision to execute him (and, of course, no one will be brought to justice for any of those). I do hope that the authorities are cognisant of the likely violence that will take place if Molla is executed in these febrile and unstable times in Bangladesh, and have measures in place to ensure that people are not killed. Clearly those who are involved in violent recrimination are responsible for their actions - but I would argue that the state also has a responsibility not to do something, like execute Molla, if it could result in significant numbers of innocent people dying.
Some people criticised me on Facebook - the ubiquitous website where so many interesting conversations about Bangladesh politics seem now to take place! - for supposedly condoning the resulting violence. Of course that was never my intention, and a clear reading of what I stated makes that clear.

However, we are now in a situation where at least 10 people were killed yesterday in political violence - both AL activists (by the Jamaat) and of Jamaati activists (by law enforcement agencies). How should one view the violence and deaths, and more that is due to come? Of course this is also a question that can be asked of the hundreds of deaths in that last couple of months resulting from the political standoff between the AL and the BNP - though I shall restrict my thoughts to the post-Molla execution violence.

Clearly, as I said in my original note above, those who are primarily responsible for these deaths, and the ones who could or should be brought to account for them, are those who immediately perpetrated the violence. There is no question about that. There is no justification at all for killing innocent people simply on the basis that one does not like a court judgement. And what I state below must be seen in this context.

Nonetheless, that cannot be the end of the matter. It was entirely forseeable that if the state executed Molla there would be violence and innocent people would be killed.

Was it appropriate for the state to execute Molla in these circumstances, and how much blame should the government have in doing so?

The decision by a state - even after a judicial process - to kill someone is at the very best of time a very sensitive and for many controversial subject. In this case, he also happened to be a political leader of an opposition party, whom this government (whether justifiably or not) has been trying to dismantle bit by bit. Hundreds of Jamaat activists have been arrested, and most of the senior and middle level membership is in hiding. In addition, there is a big political stand off between the governing party and the opposition bloc (which comprises the Jamaat) and the country (other than Dhaka) has been in almost gridlock for a month, and dozens in that period have been killed.

Added to that is the issue of the fairness of the proceedings of the trial. The lack of evidence - and the contradictory statements given by the sole witness - involving the charge which resulted in his death penalty, has been discussed earlier in this blog. The government obviously does not accept this - but even if it does not, any one with half a brain (and there are many in the government of course with far more than that!) could appreciate that putting someone to death in this circumstances was controversial and would. in the stand-off between the parties, result in a vicious response from the Jamaat.

In addition to this of course, was the timing. It was clear that the government wanted this done by 'victory' day and before the so called 'elections' that will take place on 5 January. There is something particularly creepy putting someone to death to get the maximum political advantage, which it was in part clearly designed to achieve. And of course the government has harnessed significant political advantage - huge positive coverage in the mainstream newspapers, its supporter base happy, fulfilling its election manifesto commitment etc - though it does remains unclear whether this momentary political advantage will have much of an impact as most people with an independent bent of mind must now appreciate that the elections on 5 May are a farce.

So where does this all get us. One man is executed A large number of people are very happy, though probably most in Bangladesh are confused quite what to think (agreeing that people should be held to account for 1971 crimes, but thinking that the court process was politicized), and a minority oppose it. In one day 10 people people get killed in response, and many more will follow. And no one for sure will be very much concerned about their families and what they think.

Whilst it is difficult to argue on a matter of principle that governments should be stopped from doing things that they think are right on the basis of threats of violence or when violence may happen - I would also argue when deaths and violence are so foreseeable consequences of an action that they are about to do, then that government does have a responsibility to make every attempt to minimize the violence particularly when the actions that they are about to take are controversial, and when the government is about to gain political advantage from it.

SATURDAY, 14 DECEMBER

7.45 pm: What the papers say
What did the editorials of all three main English language papers say about the execution of Quader Molla.

All of them were rather jubilant about the execution. For the Daily Star Molla 'met his deserved fate' in what was 'one of the most transparent and open trials were all the accused was given all the facilities to defend himself'. For the Dhaka Tribune, the country was finally dealing with tits 'original sin' which the country had not dealt with for 42 years, but that now the victims of 1971 have 'received a measure of justice.' As for New Age, its editorial said that the execution calls 'for unreserved and unbridled celebrations' and that it was in fact 'only the beginning of an end to the wait for justice in relation to the war crimes perpetrated during the war of liberation.' Of the paper, New Age however was the only paper to mention what they described as 'conspicuous anomalies during the trial' - though it seemed to balance this with its strong condemnation of the Jamaat.

See them below (in no particular order)
The Daily star stated:

Genocide perpetrators answer to history
THE wheels of justice have turned full circle. One of the cohorts of the Pakistan occupation army, a collaborator in their crimes and nine-months of brutality in Bangladesh in 1971, and himself a perpetrator, met his deserved fate. It would be some solace to the relatives of the victims to see that justice will have been done, albeit delayed.
With the hanging of Quader Mollah the trial of one of the accused in the crimes against humanity will have run its full course. In what was one of the most transparent and open trials, where the accused was given all the facilities to defend himself, something he did not accord to his many victims, and where all the legal procedures provided in the Constitution, including appeal, were made available to him, the sentence of death was awarded by the highest court of the country. That will, we hope, answer the critics and detractors of the trial about the clarity of the entire process.
We congratulate Sheikh Hasina and her government for not only starting the trial after long 40 years of the commission of the crimes but also executing the final verdict of the court in one instance; that, notwithstanding the dubious attempts by some quarters to malign the trial and make it controversial.
It was the aspiration of the people to see that the war criminals are given the highest punishment, and it would be unfair to the many victims of these criminals and to the martyred freedom fighters to see the execution as a revenge or retribution.

The Dhaka Tribune stated

Expiating our original sin
Can a nation in which war criminals can hold their heads up high, arrogant and unbowed, ever move forward and face the future with confidence and assurance?

Our failure to bring to justice those who were guilty of war crimes against the Bangladeshi people in 1971 was always our original sin as a nation.
The fact that those who had committed such wrongs should have been able to walk free with impunity and rise to the heights of power in independent Bangladesh was a national disgrace.
It has taken 42 years for this wrong to be righted, but at 10:01pm on December 12, 2013, with the hanging of the infamous Butcher of Mirpur, Quader Molla, the dead of 1971 finally received a measure of justice.
The damage done to our national psyche that has come out of our failure to fully come to terms with the Liberation War has been immense. Can a nation in which war criminals can hold their heads up high, arrogant and unbowed, ever move forward and face the future with confidence and assurance?
It is a question of simple justice. The message that was transmitted through our failure to hold the guilty accountable was as simple as it was chilling. If not even crimes of the magnitude of murder and rape and running death squads merited punishment, then what did this say to the common man and woman in Bangladesh?
If those who had committed acts of unbelievable cruelty and brutality during the course of opposing our independence could not only escape punishment for their crimes, but be given pride of place in independent Bangladesh, then what did this say about the country we had built?
At long last, we have finally begun to honour the memory of the dead by holding to account those who were guilty of war crimes in 1971.
And New Age stated (the paper where I am employed)

Quader Molla's execution: a milestone in history

THE execution Thursday night of Abdul Quader Molla, who had been convicted by the International Crimes Tribunal of war crimes and subsequently sentenced by the Supreme Court to death, is a milestone in Bangladesh's history; the assistant secretary general of Jamaat-e-Islami was the first to walk the gallows for perpetration of genocide and other crimes against humanity, spearheaded by Pakistani military forces, during the war of liberation in 1971. The execution also marks the beginning of an end to the nation's prolonged wait to start getting rid of the proverbial albatross, which has hung heavy round its neck for so long, thanks primarily to the political opportunism displayed by the major political camps since independence. It does indeed call for unreserved and unbridled celebrations; regrettably, however, there seem to be some uneasiness especially among the sections of society inclined to critical thinking about some conspicuous anomalies during the trial and also in the lead-up to the execution of Quader Molla.

Such anomalies, the result of a general lack of sincerity and efficiency on the part of the ruling Awami League and the government that it leads, essentially played into the hands of Jamaat and others that have relentlessly sought to render the very trial of war criminals controversial. It goes without saying that the over-enthusiasm of some loquacious ministers to publicly predict the outcome of the trial and even the timeline for execution of the convicts has only lent credence to the allegations that the trials and the tribunals may be advancing the partisan agenda of the ruling party. The controversy arising out of the last-minute postponement of Quader Molla's execution Tuesday night although two state ministers of the government had publicly said earlier in the day that he would be hanged past midnight and that all legal options had been exhausted, and sustained by the eventual chaos and confusion over the review petition and jail code seems to have only deepened the uneasiness in society.
Equally, if not more, disquieting was the reign of terror that Jamaat and Islami Chhatra Shibir have unleashed across the country since the execution of Quader Molla. The widespread violence and vandalism has amply showcased the strength, organisational and otherwise, that Jamaat and its student front have mustered over the past four decades or so. Here, too, the blame for the increasing arrogance of these undemocratic forces falls squarely on primarily the shoulders of the Awami League and the Bangladesh Nationalist Party. After all, these two parties, in their ideologically bankrupt and ethically challenged pursuit of state power, have hardly hesitated to make Jamaat their bedfellows at different junctures of the country's political history since independence.
In any case, as indicated, Quader Molla's execution is only the beginning of an end to the wait for justice in relation to the war crimes perpetrated during the war of liberation. While the majority of the people want the perpetrators to pay for the crimes they committed more than four decades back, they also want the war crimes trial to be above and beyond any question or controversy. With several cases nearing completion and several others under way, the state must ensure that the trial process meets the national and expectations of transparency and credibility,
As for the violence unleashed by Jamaat and Shibir, the government needs to realise that the fight against such toxic and murderous politics cannot be won through coercion by the state machinery; it needs to be fought ideologically, politically and culturally
If anyone can send translations of the editorials of some of the Bangla papers, particularly Prothom Ali, Bangladesh Protidin, Jugantor and Somokal please send to firstname.lastname@example.com

5.10 pm:
Tanvir Haider Chowdhury's memory of his father who was amongst the intellectuals killed in mid-December 1971, by Al Badr death squads in the days immediately before Pakistan's surrender, is a stark reminder of what the issues are all about.

4.21 pm: The Pakistan government and Molla
We should not really be suprised about Pakistan's reaction to the execution. The country has never come to terms with its involvement in the 1971 war - and no action was taken against military officers which its own commission found responsible for tens of thousands of death.

Dawn reports that:

'Federal Minister for Interior Chaudhry Nisar Ali Khan Friday expressed 'deep grief' and concern over the execution of imprisoned political and religious leader Abdul Quader Molla of Jamaat-e-Islami (JI) in Bangladesh.'
Also, it has been reported that Jamaat-e-Islami Pakistan is calling on the Pakistan government to take up the issue with Bangladesh.

I think we can be pretty sure that the Pakistan government will keep well out of this issue, other than these words for a domestic audience. The Pakistan government must be at least content that the tribunal is not proceedings with in absentia trials against army officers, which as far as I can tell, it could certainly do.

It is important to remember that according to leaked wikileaks cables, the Pakistan government lobbied the UN to ensure that it would not given any formal assistance to the Bangladesh government over the trials

3.20 pm: Dhaka Tribune Editor's op ed: 'Guilty as sin'
I am going to look at some of the editorials and op-eds in different English language newspapers. I will look first at the op-ed written by Zafar Sobhan, the editor of the Dhaka Tribune, and regarded as an insightful commentator on Bangladesh politics [Disclosure: former colleague and related by marriage]

He begins his article setting out why he has always supported the trials, and then comes, I think, to what is the most important passage:

So here we are, the war crimes trials are winding their way to their inexorable end, and the first of the war criminals has been hanged. Now that the executions of the war criminals is a reality and no longer an abstraction, how do I feel?
I do not oppose the death penalty nor am I moved by procedural arguments in favour of the defendants. Due to the fact that more than 40 years have elapsed since the crimes at bar were committed and that those being accused have been important men who have had plenty of time to cover their tracks, dispose of evidence, and intimidate witnesses, to say nothing of the severe limitations of the prosecution, the trial process is certainly open to question. But this should not be confused with innocence.
The legal dictum that it is better for a hundred guilty men to go free than for one innocent man to be convicted only holds true if we presuppose the accused is powerless. When, however, the accused is the one with power, holding to such a standard is itself more likely to lead to a miscarriage of justice.
The sad truth is that in Bangladesh, the powerful have always managed to escape justice by exploiting the weaknesses and loopholes in the legal system, and if we are to cleave to a maximalist understanding of the rights of the accused and the burdens of prosecution no one powerful could ever be prosecuted for anything in Bangladesh.
Quader Molla was guilty as sin. The fact that the prosecution may not have done the best job of proving it does not in any way lessen his crime or justify his exoneration. He has received the justice he deserved.
Zafar thinks Molla is guilty 'as sin', that he got the justice 'he deserved'. Why does he think that? Well, Zafar does not say exactly where this certainty comes from. He seems to accept that it does not come from the trial ('that the prosecution may not have done the best job of proving it does not in any way lessen his crime) so it would be interesting to know from where he did?

His argument is that the Molla and his supporters have covered their tracks. Of course that is possible - but it could also be that perhaps the evidence was not there. He does not seem to accept that possibility at all.

In any case, for Zafar the trial is not really relevant to the issue of guilt. Why is this? He quite rightly argues that powerful accused in Bangladesh can and do escape accountability by all variety of means. However, what the Tribune editor does not refer to is how in Bangladesh the state can also manipulate trials - and that no doubt Bangladesh jails is full of innocent people.

In this case the accused's rights were so effectively removed by the court (what Zafar appears to refer to as simply 'procedural' problems), such that a witness could come to court, give testimony and - as long as she was not inconsistent during the time in which she testified - her credibility could not be impeached, whatever contradictory statements she may have given prior to her court testimony.

Surely, if one supported the trial process, then one should have had in mind a certain set of standards to ensure that the court process was legitimate.

Zafar is right later in the article to put the blame on the government. They could have done so much more to ensure the process was credible. But I do disagree with him that it is only the victims and the country who deserved a better process. The accused did as well as, despite Zafars's instinct that Molla is guilty as sin, that surely is not good enough reason to put someone to death.

3.00 pm: Why are so many people joyous about Molla's execution
How does one understand why there are so many people in Bangladesh (including perhaps the vast majority of my friends and those I know socially) appear to be 'joyous' or at the very least very pleased with the execution of Quader Molla - when, I am sure that many at least do, at the same time, accept that the evidence in relation to the charge for which he was put to death, was, as the Economist states today, 'flimsy'?

In November 2012, when the skype scandal was about to blow, I wrote an article on why the civil society establishment were so unwilling to be critical about the tribunal - and some of the points I made in that article are relevant here.

I first of all said that there were many 'noble and principled reasons' about why these people have been full square behind the government's decision to both establish the tribunals and the process of the tribunals themselves.

- terrible crimes were committed in 1971 by the Pakistan military, aided and abetted by their local collaborators;
- amongst those who supported the military - not just politically, but 'militarily' - were those who were members of the Islamic-minded parties of which the Jamaat-e-Islami were perhaps central.
- although there were some form of attempted accountability immediately after the war, many of the leaders of the Jamaat-e-Islami in 1971 had left the country or at least were not within the jurisdiction and so were not party to these mechanisms (which were in any case problematic).
- after 1975 and the assassination of the country's first president Sheikh Mujib, the Jamaat-e-Islami began to re-group so that by 1990, when the first proper democratic elections taking place, the party was able to obtain 17 seats in the parliament, holding the balance of power. Since 1990, their strength increased and in their coalition with the Bangladesh Nationalist Party, three of the Jamaat's leaders - all of which were said to have been involved in war crimes during 1971 - were made ministers.
- to end impunity, and ensure accountability, trials of those alleged to have committed war crimes were necessary and in fact a legal obligation upon the government;
- the struggle for accountability has been a long one, with many political forces conspiring against it, that the trial process needed its support.
I then asked however why does there appear to be such a hard line support for the tribunal amongst those who would be the first out of the gate to crtiticse the government if similiar problems existed in other accountability processes. This is what I stated then:

- there remains huge emotion relating to 1971. Many of the civil society's leaders fought in 1971 for independence, and saw at first hand terrible crimes being committed. After Sheikh Mujib's assasination, they also saw in front of their very eyes not just the reemergence of the Jamaat as a political force, but a much stronger force than they ever were before the war.
- this is not just about accountability for 1971, it is also about civil society establishment's widespread hatred of the Jamaat-e-Islami as a political force in Bangladesh. The civil society establishment is overwhelmingly secular, and see themselves as sworn enemies of everything that the Jamaat-e-Islami stands for. The trials therefore have another purpose - to weaken, if not destroy, the party.
- There is a common assumption that these men are guilty of the crimes alleged and that any defense they provide is simply an attempt to manipulate the judicial process. (Where they get this sense of absolute certainty is an interesting question to be considered another time.)
- the criminal justice process in Bangladesh is amenable to delay, corruption and manipulation which has resulted in the past in impunity for those alleged to have committed high levels of corruption and other crimes in Bangladesh. The powerful, accused of serious crimes, have again and again escaped accountability. This, they say must not happen in relation to these war crimes tribunals.
At the end of the day, why are so many people joyous about the execution, of Quader Molla, when the evidence for the particular charge on which he was put to death was so weak? This is all about the magnitude of the crimes that took place in 1971, combined with the lack of accountability for them in subsequent years. There was the Pakistan military officers in particular being allowed to return home, and then Mujib's amnesty towards local collaborators in 1973 (which gave amnesty to those involved in political crimes and, as I understand, it the de facto end to any further prosecutions under the collaborators ordinance). To the huge death toll, and the lack of accountability should he added one other factor - with the Jamaat-e-Islami never having paid the price for their support of the Pakistan military, they have in subsequent years been able to climb into the most senior positions of power within Bangladesh politics."

I do respect these positions in many ways. However, at the end of the day, do these reasons justify the execution of a man on a charge with the evidence was so unconvincing? I don't think so - though many others disagree.

2.15 pm: Contacting the blog
For those interested in joining the conversation, or who want to raise a point in the blog please tweet @davidbangladesh or e-mail email@example.com. Or of course you can leave a comment at the end of the blog post

1.35 pm: Supporting accountability and fairness
Those reading this blog for the first time might have been confused, in its focus on the Molla execution, about my general position about the war crimes trials relating to the 1971 war - and in hindsight it may have been useful to have stated something at the start of this page to clarify my position

I first became interested in the issue of 1971 war crimes issues in the making of the film the War Crimes Trials which investigated the conduct of three men who had at the time of making the film lived in the UK, but who, the film alleged, were in 1971 members of the Jamaat-e-Islami and its student wing and were involved in war crimes. This included Chowdhury Mueen Uddin whom the film showed was involved in the abduction of intellectuals, 43 years ago this week, at the very end of the 1971 war, between 1 to 14 December. See: Tracking down the killers

I have always held the position that it was appropriate that trials took place to bring those accused of some of the worst war crimes during the 1971 to account through a judicial process. At the same time I have always felt that the process should be a fair one; this was in my view particularly important since the crimes took place 43 years ago (credibility of evidence becomes difficult to assess), and there was a risk that the process could become politicized. More over, I have noted in my time working on the issue of war crimes that people in Bangladesh believe many things about people's alleged involvement in war crimes, but the evidence is often not there to substantiate the allegations. In people's head, their beliefs can however become facts

It was of course not just me who thought that standards were important. The Bangladesh government itself has all along stated that the tribunal would meet 'international standards' - so the issue of standards was very much on the table.

Right from the beginning I was concerned about the inadequacies of the 1973 Act - particular in light of the Article 47A of the constitution which significantly limited the rights of the accused. [i.e A question of standards] However my view at the beginning of the actual trials themselves, I thought it was possible that if the tribunal acted independently and sought to have a fair trial, such a trial could take place. Much has happened since then to raise significant questions relating to that point - which I might over the course of the next day raise in this blog.

However, not everything is about fairness to the accused, there are important issues to raise about justice to the victims, of which there were so many. And that issue I will come to next

1.30 pm: Post Molla execution blog continuing
I shall continue this particular 'rolling' blog on Molla's execution for another day or two to provide information and analysis on the response to his execution. The material written below was very narrowly focused on the impending Molla execution and events immediately after - and did not discuss general issues of justice relating to the 1971 war which will help explain to many why so many people in Bangladesh were 'jubilant' about the execution.

THURSDAY, 12 DECEMBER

1.12 am: Preventing Molla a proper defense - restricting defence witnesses

I want to finish this blog tonight with one further set of thoughts.

I said earlier (7.02 pm) that there were two key reasons why I thought that the execution of Molla was highly objectionable. The first one was the total lack of credible evidence for the crime for which hw was put to death (discussed earlier). The second reason is to due to the preventing Molla from putting forward a proper defence. Molla was restricted to only 5 witnesses, whilst the prosecution could bring as many as they wished – in fact they brought 12.

What was the justification for this restriction. You really would not believe this - but the tribunal said that it was not the job of the defence to knockdown the prosecution case, or to discredit prosecution witnesses or to question their credibility. All the burden of proving the case was on the prosecution, so the defence did not have any reason to bring witnesses for that. The only witnesses that they were allowed to bring were alibi witnesses, and five, the tribunal thought was enough.

I doubt there is any criminal justice system in the world – in fact normal Bangladesh law does not even support this principle – that follows this rule that the defence has no right to bring witnesses to discredit the prosecution case.

But that is what happened at the tribunal And the really worrying thing for Bangladesh is that the appellate division did not disagree with this. Is this now the principle of law in Bangladesh.

The tribunal's logic is that since it is for the prosecution to prove the charges, the accused lawyers have no role in disproving them - by doing such annoying things like bringing witnesses.

This is rather extraordinary. Yes, the burden is on the prosecution to prove its case 'beyond reasonable doubt', but this in no way means – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, the unreliability of prosecution witnesses.

Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh.

The need for the prosecution to prove its case 'beyond reasonable doubt' cannot be turned into a rule that prevents the accused from disproving the case against him or her.

To read about this more fully, look at this article: Are the Tribunals Justified in restricting witness numbers

12.02: Reports that Ershad arrested may not be correct

Colonel Ziaul Hasan, Addition DG of RAB, has said, 'Ershad was not arrested, He was taken to Combined Military Hospital in the cantonment'.

11.43 pm: BREAKING - Report that General Ershad has been arrested, waiting for further confirmation

11.29 pm: Molla's son apparently arrested
Molla's lawyer reports that he had spoken to one of the sons of Molla who told him that police came to the house in Dhaka and arrested another son, Moudud, a number of other relatives and two personal assistants. Police have told them to send someone to police station and they will consider releasing them

11.08 pm: Molla's family house in Dhaka has reportedly been surrounded by members of the student wing of the Awami league who are not letting family out of house, and are banging on the gate

11.07 pm: The lawyers for Molla have said that the government is not giving the body over to the family. Jail officials have told the family that they will take the body themselves to Faridpur, the ancestral home of Molla, and bury the body themselves.

10.50 pm: Official confirmation of hanging
Deputy Commissioner Dhaka has confirmed to New Age reporter that Molla was hanged at 10.01 pm

10.40 pm: According to jail code the body must remain hanging for 30 minutes before being taken down

10.28 pm: Large number of vehicles with armed police enters inside jail

10.17 pm: Still no official confirmation of hanging

10.16 pm: ATN News appears to show picture of noose inside the jail (without body)

10.14 pm: TV news stations all reporting that Molla executed. Ambulance gone into prison - to collect body reporters assume

10.10 pm: Unofficial reports suggest that Molla has been executed

9.58 pm: Execution perhaps at 10 pm, in a few minutes
Another reliable source now saying that execution could take place in next few minutes

9.40 pm: Molla execution looking to be imminent (see below)

9.35 pm: Why the execution now?
Before this week started and anyone asked me what I thought would happen to Molla, my standard answer was that I did not think that the government would go ahead with an execution before the elections unless it wanted a rationale to announce a state of emergency. At that time my thinking was as follows: if there was competitive elections with the BNP, then arguably it could serve the AL's political interests to hang Molla, as it would at least make enthuse its political base essential for an election. But since the elections are not going to be competitive, with just the AL and a few of its small party allies taking part, I could not see much of an advantage for the AL - and in fact why would they do something like executing Molla which would open up a new violent front against it.

Of course, if the AL wanted an excuse to call a state of emergency then executing Molla would be the perfect thing to do. Execution, would be followed by widespread violence (over an above the existing unstable situation) and that this could provide the AL an excuse to call in the army, blaming the Jamaat at the same time.

When suddenly, the execution was announced on Tuesday, it suddenly appeared, with the US Asst Sec General in town, that there might be another explanation. I had around that time heard numerous reports that the UN diplomat had made progress, and that he had come with a plan, that many in both parties accepted, the prime minister would be relieved of her executive powers, with the president taking them over. It seemed plausible that perhaps the Molla execution was a sign that a political deal was in the offing and that the prime minister wanted to deal with the execution quickly before she lost her executive powers. (see 6.55 pm, Tuesday).

A diplomat that I spoke to scoffed at the above idea and thought that it was more likely the Awami League was trying to put the BNP into a difficult position. If it sided with the Jamaat, the AL could blame it for the violence and for leaving the dialogue (assuming it did that). If the BNP did not support Jamaat, their alliance would be put under strain. (see 8pm, Tuesday).

By view now is as follows:
- although there is no competitive election, the AL needs to enthuse its base, at least to make sure its supporters come out at the election. Molla's execution would help with this
- the war crimes trials was an election commitment, and one that the party needs to show that it fulfilled. An execution, would be the perfect example of this
- the AL leaders must feel pure hatred for the Jamaat and the role that they have played in supporting the BNP's seige and other opposition activities. The execution would be payback.

- who know what will happen in the future, so best to get it done with
- and of course it will be useful in putting the BNP in a difficult position (as stated above) and also could provide a rationale for emergency (if they wanted to use it)

9.33 pm: Key personel inside jail for execution
District magistrate, Imam and Civil Surgeon inside the jail

9.28 pm: Execution appears to be imminent
Others reports suggest that execution could happen at 10.01 pm but no formal confirmation at present

9.23 pm: Defence lawyers not allowed to see Molla
Defence lawyers are reporting that the jail authority has rejected their application to meet Molla and that unofficial sources are telling them that the execution will take place soon.

8.51 pm: Molla seeks meeting with lawyers
After meeting up with Molla in jail, his family have told reporters that he would like to consult his lawyers to decide on whether to apply for clemency, and the lawyers have submitted an application to the jail authority for a lawyer's visit.

7.05 pm: Why Molla should not be executed

This blog contains neutral and independent news, analysis and commentary on the Molla execution issue, but let me be very clear about my own position on the imposition of the death penalty of Quader Molla. I am very much against it.

Yes, I do not support the death penalty, but that is not why I am against the execution of Molla.

Yes, I think there are many legal inadequacies in the International Crimes (Tribunal) Act 1973, but that is also not the reason? Yes, I am aware of the many controversies and scandals that have taken place at the tribunal (including the abduction of a defence witness, the release of skype conversations/e-mails showing at least one of the tribunal judges in collusion with the prosecution and the government, and at least 6 tribunal investigators and prosecutors seeking last month Awami League parliamentary seats) – but again these controversies, and there are many more, are not in themselves the reason why I object to Molla's death penalty.

The reason for thinking that it is outrageous to put Molla to death is because of the flimsiness of the evidence on the charge which he has been sentenced to death and the fact that the tribunal simply did not allow him to put forward his defence, restricting his witnesses to five.

On the evidence issue (I will discuss the witness issue later) , please look below at Tuesday at 7.05pm which details the situation.

What we have is as follows: a witness, giving evidence in court 42 years after the event stating that Molla was present, who had previously given two statements - one to a 1971 museum and another to the investigation officer - neither of which stated that Molla was present at the scene, and one of which stated that she was not even present at the time of the incident.

And we have a court – both tribunal and appellate division – who have decided not to take into consideration any of these previous statements which do obviously raise issues about the credibility of the witness.

Added to this, there is the fact that Momena, who was 13 years old in March 1971, had a breakdown after the murder of her family and, as far as the evidence shows, had never in the 42 year period between then and the time she gave her testimony in court, mentioned to anyone that Molla was present at the time her family was killed.

If all of this had been known by the investigation and prosecutors, there is surely no way that a case like this, would ever have resulted in a prosecution in most jurisdictions - yet alone going to trial and resulting in a conviction or execution.
6.15: Warsi wins award for most mundane quote

Can there be a more mundane statement about war crimes by a British minister in Bangladesh right now? A colleague sent me this 'key' quote that she just gave at her press conference.

'Of course we believe and always have that people involved in political crimes should face justice and that there cannot be a culture of impunity for those who committed these horrendous crimes and that people need to account for crimes they committed .... but UK has very clear position on the use of death penalty. We oppose it in every country.
Not a comment about the fairness or the process of the trial. It is a pointless comment which the Bangladesh government will be very happy to hear. And there is DFID giving millions of pounds to the Bangladesh government for reform or the police ....

Two days ago the FCO gave a relatively good one (see 8.44pm on Tuesday)

6.02 pm: Important to remember that there remain many in Bangladesh who very much support the execution of Molla

5.57 pm: Copy of short order
Here is a copy of the short order. Nothing more than what is mentioned earlier in the blog (12.47 pm)

5.35 pm: When will the execution take place
Still remains uncertain when the execution will be carried out. It could be tonight, although the government may try to exploit maximum political capital (for their own supporters) from the execution by doing it on the symbolic days of 14 December night (the day when many intellectuals were killed by Al Badr/Pakistan military in 1971) or 16 December (the day in 1971 when the Pakistan army surrendered). The government has in the past used the days of 25 March (independence day) and 16 December (Victory day) to set up the tribunal and arrest people, and it is quite possible that the government could do the same this year. You may remember in the skype conversations, the government was putting pressure on the tribunal to impose the first sentence against Golam Azam/Delwar Hossain Sayedee in December 2012.

Of course, the very fact the government could even choose to try to obtain the maximum political/symbolic advantage from a state execution is rather hideous - but this is where we are right now in Bangladesh.

Since the jail code does not apply, no-one knows what are the rules by which he will be put to death - whether or not the family for example will be informed.

5.20 pm: Warsi Press Conference
Warsi should be in the middle of a press conference at the British High Commission. Unfortunately I was not able to go, but will report as soon as I have some information.

5.11 pm: Execution can take place at short notice
Newspapers are reporting that the appellate division order relating to Molla has reached Dhaka Central Jail and that the execution can take place at short notice. The family have sought to meet Quader Molla again before he is put to death

3.30 pm: Warsi meets PM
UK embassy confirms that senior foreign minister Baroness Warsi (see below) has met up with the prime minister, Sheikh Hasina this morning. The embassy at the moment is being tight lipped about what she said. However according to other diplomatic sources, Warsi informed Hasina about European Union concerns relating to death penalty, particularly in the context of the impending Molla execution. No doubt, of course, she spoke about other things as well - she is here to look at the election issue and related violence! I think they met at 11.30 am, so this would have been before appellate division passed its order dismissing defence appeals.

2.54 pm: Baroness Warsi in Town
Baroness Warsi, Senior Minister of State at the UK Foreign & Commonwealth Office arrived in Bangladesh this morning! I wonder what she is doing today?

2.49 pm: Human rights Watch calls for halt of execution
Strongest statement yet from Human Rights Watch - and it needs to be. Picks up on a number of points, including the one just set out below about lack of independent appeal of death sentence, and the factual weaknesses in the case.

Human Rights Watch has long supported justice for war crimes committed in Bangladesh's 1971 war of liberation. Those responsible should be brought to justice through fair trials that meet international standards. Human Rights Watch opposes the death penalty in all circumstances.

Human Rights Watch calls on Bangladesh not to carry out the execution of Abdul Quader Mollah and deplores the fact that he will be executed after an unfair trial and denial of a full and impartial appeal of his conviction. Mollah was accused of atrocities in the 1971 war of liberation and was originally sentenced to life in prison. The government pushed through changes in the law with retroactive effect that allowed the prosecution to appeal the acquittal. Mollah was sentenced to death on the basis of the testimony of a woman who was 12 years old in 1971 and had changed her story. Human Rights Watch said that many governments and the United Nations have called on Bangladesh not to impose the death penalty in this case and expressed concern about the conduct of the trial. Human Rights Watch takes no position on Mollah's guilt or innocence, which can only be established after a fair trial.

"War crimes verdicts have already led to major protests and violence this year," said Brad Adams, Asia director at Human Rights Watch. "A hanging in such a controversial case in a volatile political atmosphere in the run-up to national elections will likely lead to large numbers of deaths, injuries and property damage. Many observers believe that the government wants an execution so close to the election in order to score political points. The government should not act irresponsibly at such a volatile moment. The government and protest leaders must take all possible steps to avoid violence."

2.45 pm: The government's position is now stronger, but it was no independent appeal
Interestingly, whilst many of Bangladesh's pro-hanging brigade were very critical of the stay of execution, they and the government are now in a much stronger position with the review application having been heard by the court. They can now say that Molla had his right to review, and the court rejected it on merits.

This of course sounds good. In fact of course, it was only a review, not an appeal. A review in front of the same judges who gave the death sentence, who only published their judgment less than a week ago! The defence were having to try to persuade these same judges who had passed the death sentence to say 'yes, we had made a terrible mistake and Molla now does not need to be hung!' It was never ever going to happen.

Important to note. This was not an independent appeal of the death sentence decision

2.15 pm: Short order being signed
A defence lawyer informs me that the appellate division's short order dismissing the defence reviews is now being written up and signed, and will probably be ready to be sent to jail authorities today. This will in effect vacate the stay of execution, and the jail authorities probably will only require a new government order to undertake execution.

1.26 pm: Will Molla's execution result in more deaths? Do we care?
One man, Molla will be executed by the state, and the question is - how many further deaths will also be directly caused by the state's decision to execute him (and, of course, no one will be brought to justice for any of those). I do hope that the authorities are cognisant of the likely violence that will take place if Molla is executed in these febrile and unstable times in Bangladesh, and have measures in place to ensure that people are not killed. Clearly those who are involved in violent recrimination are responsible for their actions - but I would argue that the state also has a responsibility not to do something, like execute Molla, if it could result in significant numbers of innocent people dying.

Any thoughts anyone?

12.53 pm: The written order?
After the order was read out the Attorney General got to his feet and asked whether they could issue a short order'. According to lawyers close to the judge's bench, Justice Sinha said, 'No short order is required as it was dismissed without observations'. And the chief justice then said that 'the order would be communicated to the jail authorities according to law'

I spoke to Abdur Razzak a few minutes after the order and he said that he was trying to understand the implications. 'The judges did not say that they were going to issue a short order'

The Attorney General, said that no short order was required.

There is a stay of execution, imposed by an order of the court. In order for the stay order to be vacacted, there needs to be an order written and given to the jail authorities.

12.47 pm: The court order
The chief justice simply read out the following order: 'Both Review petitions, 17 and 18 are dismissed.' There were no observations.

Breaking: Defence applications dismissed

11.55 am: Court adjourns again 'for a few mins'

11.52 am: Razzaq makes further argument that by law, sentence can only be changed if 'manifestly inadequate and unduly lenient' but that appellate division judgment only says life imprisonment sentence imposed by tribunal was 'inadequate'. Attorney General not seek to respond to that point.

Why does AG not respond on that point?

11.10 am: in summary defence argued that court made apparent error on face of record when not allow statement, which Momena, the sole witness in death penalty charge, had given to investigation officer, to be taken into account by court.

In that statement to IO, Momena did not mention that Molla was present at scene when family murder took place.

Also argued that court has powers 'for total justice' to consider whether jail code should apply, and that execution warrant defective.

11.02 am: Court adjourns after hearing defence and government arguments. Starting again at 11.30 am, where Defence given opportunity to provide ten mins summary of arguments.

9.40 pm: Maintainability allowed
Breaking news: appellate division agrees that Defence review application can be heard by court. Now Defence arguing on merits

8.50 am: What will happen today in court
The appellate court hearing will continue this morning, from around 9.30am, with the chief defence lawyer, Abdur Razak continuing his arguments as to why the court should consider its review of the appellate division judgement (see below, 7.20 pm, Tuesday).

If he is successful, the court will hear the merits of the arguments - probably straight away. (It is also possible that the court may hear the substantive arguments about review before deciding on whether the application was in fact maintainable)

I understand that the defence will be filing or have filed an 'additional paper book' in which it will raise additional issues. These deal with additional matters supporting its review application, and also arguments, that are outside the purview of the review - that the warrant of execution was faulty and the jail code should apply to Molla

The issues about the warrant of execution and the jail code are not issues that are before the court as part of its application for review - however, the defence are likely to be hoping that if the review is found not to be 'maintainable' in court or is refused on merits, the court will take into account its arguments about the warrant of execution and the jail code.

The impact of the alleged defective warrant and the jail code are not in any way to bring the execution to an end - but to delay when it might take place.

The defence arguments about the warrant of execution are set out here in an earlier post

The arguments about the jail code relate to (a) whether it applies or not to Molla or (b) if so, whether it is the old code or the amended. The amended code - which apparently the prison authorities are saying has not been 'approved' - provides 15 days (rather than 7) for the time in which a person can seek presidential pardon.

Today is the last day of the appellate division before it goes on winter holidays until the beginning of January. So it is very significant. If the arguments are not completed by the end of the day, Molla will have at least a reprieve until 2 January 2014 when court reopens.

WEDNESDAY, 11 DECEMBER

10.59 pm: The V-sign?
Another somewhat amusing aside, amongst what is obviously a very serious business, are the pictures of Molla's wife yesterday going to prison. It was, supposedly, Quader Molla's 'victory sign' after he received his sentence of life imprisonment that infuriated so many people, and partly triggered off Shahbag protests - which led to the government changing the law on appeal of sentence, which led to the death penalty. That picture has become slightly iconic here in Bangladesh.

His wife yesterday, perhaps trying to do a victory sign to emulate her husband put up a backwards victory sign - known to all those who have lived in England as a F--- O--- sign. It is of course possible that this is what she really meant to say to the waiting photographers!

10.55 pm: How some papers got it very wrong
My colleagues at New Age told me this evening that a lot of Bangla language papers were caught out by Molla's sudden reprieve yesterday. Their first editions, which are sent to districts around the country, were completed by about ten at night and had banner headlines, 'Molla Executed'

9.00 pm: It could have been rather different
Somewhat intrigued by the apparent failure of the attorney general to pick up his phone to defence lawyer's calls on Tuesday night (see 8.50pm below). Things could be very different now if he had argued his case at the chamber judge's house - which would have been the same arguments he used in court today.

8.50 pm: More on Defence Stay application, Attorney General's absence etc

Some clarification about yesterday's application for a stay of execution. A number of points are now clear having seen the defence application for a stay, the government application seeking a vacation of the stay, and also talking to defence lawyers.

(a) When the defence lawyers went to the chamber judge's house, they had two petitions with them. An application seeking a review of the apellate division's judgement which imposed the death penalty on Molla and an application seeking a stay of proceedings/execution. Both applications were filed with the chamber judge.

(b) according to the defence lawyers, the chamber judge told the defence lawyers to serve the application for a stay with the attorney general. They said that they phoned the attorney general a few times but there was no answer, and also went to his house. They then returned to the chamber judge who heard the matter ex parte (i.e without the government side present).

(c) the stay application was focused tightly on the defence's right to seek a review of the appellate division's judgement (and not on whether the jail code applies or the warrant of arrest was defetive (as I wrote at 11.45pm, Tuesday). The operational paragrpahs of the stay application are:

6. That there being errors apparent on the face of the record in the Judgment and Order dated 17th September 2013 passed by this Hon'ble Court in Criminal Appeal No. 24 of 2013, there are good grounds for filing the Review Petition and there is every possibility of success of the said Review Petition. In such circumstances, the Petitioner applies for stay of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.

7. That it is submitted that the life sentence awarded by ICT-2 in respect of Charge No. 6 has been enhanced to a death penalty on appeal by the Government to this Hon'ble Court. As such if the judgment passed by this Hon'ble Court enhancing the life sentence in respect of Charge No. 6 to a death penalty is not stayed by this Hon'ble Court, the same may be executed by the Government, in which case, the instant Review Petition will become infructuous. As such, the Petitioner prays for stay of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.

8. That it is specifically stated that on 8th December 2013, a copy of the judgment of the Hon'ble Appellate Division dated 17th September 2013 was transmitted to the ICT-2. On the same day, i.e., 8th December 2013, the ICT-2 issued a Warrant of Execution on the basis of the aforesaid judgment of the Appellate Division, which was immediately thereafter sent to Dhaka Central Jail. The Petitioner's lawyers have made enquiries with the Jail authorities and have obtained specific information that the Jail authorities are taking steps to execute the death penalty awarded against the Petitioner on the basis of the aforesaid Warrant of Execution. ....

10. .... . As such, there is a real risk that the Petitioner may be executed at any time by the jail authorities. In such circumstances, the Petitioner prays for stay of the judgment of the Appellate Division dated 17th September 2013 pending disposal of the instant Review Petition.

11. That it is submitted that if the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 is stayed by this Hon'ble Court till disposal of the instant Review Petition, no party will be prejudiced. On the other hand, if the said judgment in Criminal Appeal No. 24 of 2013 is not stayed by this Hon'ble Court, the death penalty awarded by this Hon'ble Court in respect of Charge No. 6 may be executed and the Petitioner will suffer irreparable loss and injury. As such, the Petitioner prays for stay operation of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.
(d) the government's key arguments in its written application seeking a vacation of the stay application is that the application of the review application is not maintainable as Molla has no right to a review. The key paragraph in its short application is

(5) That since as per Article 47(A)(a) of the Constitution of Bangladesh the War Criminals has no constitutional right to file any application before the Supreme Court of Bangladesh and thus the order of stay is liable to be set-aside
(see below for government and defence arguments in court)

7.20 pm: Defence arguments in court today
[Apologies for the long break but had to go to the UN Asst Gen Sec press conference, about which I will come to later.]

Abdur Razzak, for the defense, argued that the appellate division did have jurisdiction to hear a review application against the death penalty sentence that the court itself imposed. The key sections/article are set out in the text below when discussing the government's argument so I shall not set them out again.

He first of all made the following arguments about Section 21, 24 and 26 of the ICT, the sections raised by the Attorney General. Razzak agreed that the ICT only allowed appeal against sentence and for no other reason. He said that these sections did not help the government's argument, as what is being discussed today is a review of the appellate division decision, not the tribunal decision. In response to a suggestion by Justice Sinha that the tribunal decision runs along with the appeal, Razzak disagreed and stated that the review issue is solely about a decision made by the appellate divsion for death - a decision that was not made by the tribunal. So in summary, he said that these sections of the ICT do not provide any bar to the defence from seeking a review

He then moved onto the Constitution. He said that first of all he wanted to mention that Article 47 of the constitution is contained in part 3 of the constitution which deals with fundamental rights.

He then referred to section 47(3) and said that what this article did was to prevent any part of the ICT Act from being challenged as unconstitutional - and it was therefore not relevant to the matter in hand. In response to the questions of Justice Sinha, he said that the words 'no law nor any provision thereof providing for detention, prosecution or punishment of any person' did not mean that the issues of 'sentence' could not be challenged, only that 'laws .. providing for ... punishment' could not be challenged.

He then referred to 47(A)(1) which he said was a specific provision by which three fundamental rights were stopped from applying to someone like Molla. He went through each in turn and explained how they would have been relevant to the trial of those accused at the International Crimes Tribunal. He said, if the framers of the constitution intended to bar those sentenced of war crimes from using article 105, then they would have stated it explicitly. 'Article 105 has nothing to do with article 47(3) or 47(A)

He then referred to Article 47(A)(2) and said that article 105 was not a 'remedy' it was a 'power' provided by the constitution to the appellate division. He pointed to the fact that article 105 was in part 6 of the constitution - in the judiciary sectionand not in the part of the constitution dealing with fundamental rights.

Following questioning by the bench, he argued that article 105 - which gave the Appellate Division 'the 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' - applied as the ICT Act did not contain any sections that precluded the article's application.

He then moved onto discuss a Bangladesh case which he said showed that the appellate division has inherent powers of revision which not even the constitution can take away. 'Even if the constitution is suspended, the appellate division would still have these powers,' he said.

It was at this point that the court adjourned the matter.

4.30 pm: Attorney General's arguments in court today
Here are a summary of the arguments made by the Attorney General (AG)who was arguing that the appellate divsion had no jurisdiction to hear a review application made by Molla's defence lawyers.The AG first referred to three sections of the International Crimes (Tribunal) Act 1973 (ICT) .
Section 21 is about sentence:

(1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence.
(2) The Government or the complainant or the informant, as the case may be, may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal or an order of sentence.
(3) An appeal under sub-section (1) or (2) shall be preferred within 30 (thirty) days from the date of conviction and sentence, or acquittal or any sentence, and no appeal shall lie after the expiry of the aforesaid period.
(4) The appeal shall be disposed of within 60 (sixty) days from the date of its filing.
(5) At the time of filing the appeal, the appellant shall submit all documents as may be relied upon by him.
Then he referred to section 26 which confirms the precedence of this law if there are inconsistencies with any another law

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

He then referred to section 24 which precludes an appeal from any order, judgement or sentence of a Tribunal, other than appeal relating to sentence.

No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in section 21.

He then moved onto article 47(3) of the constitution

Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or any individual, group of individuals or organisation or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this Constitution.
And then article 47A (1) and (2), which were brought in by the first amendment of the constiution in 1973

(1) The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.
(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.
The Attorney General's basic argument was that the ICT Act provides the limits to the appeal that is allowed by a convicted person under the Act, and that 47A(2) specifically bars an accused, falling within Article 47(3) from moving 'the Supreme Court for any of the remedies under this Constitution.'

He then said that article 105, which is the provision under which this review is being sought is a constitutional remedy - and therefore the accused is barred from seeking it.

Please note it will be easier to understand the Attorney General's arguments when read in the context of the defence arguments (see above)

3.15 pm: Fire at Sinha's house
Earlier today it has been reported that some people set fire to Justice Sinha's house in his home village in Moulvibazaar. Sinha was the judge that gave the majority opinion in the appellate division judgment that imposed the death penalty on Molla. He is also on the same bench dealing with the review. Not clear from reports how much damage done to the house. It goes without saying that this is avery worrying development

3.00 pm: Review, not an appeal
Before sumarising the legal arguments made in court, it is important to note a few things about the 'review' by the appellate division (assuming that the defence actually wins maintainability. Some key points are:

- there are very limited grounds that can allow a review 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 as a result very uncommon. The International Crimes Tribunal gave itself the power of review (though it had much wider discretion than the appellate division to reverse its decision) and although it dealt with dozens and dozesn of application for review, I am not aware of a single one that it overturned.

Here is the constitutional provision dealing with the review and the supreme court rules relating to the procedure. Article 105 provides 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 shaH 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.
1.46 pm: Kerry speaks to Hasina
US embassy has confirmed to me that 'Secretary Kerry spoke with Sheikh Hasina today about current events in Bangladesh.' No further details have been provided. The embassy also provided me the following points on US's position about the trials - which suggests that Molla was discussed.

'On the ICT case question,
- As we said at the time of the first verdict in Bangladesh's International Crimes Tribunal (ICT), the United States supports bringing to justice those who committed atrocities in the 1971 war.

- We believe that the trials should be fair and transparent, and in accordance with international standards Bangladesh has agreed to uphold through its ratification of international agreements, including the International Covenant on Civil and Political Rights.

-As Ambassador-at-Large Stephen Rapp, Office of Global Criminal Justice, said during a press interview earlier this year: 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.

- Before any sentence is carried out, it is essential that the process itself stands up to international standards.'

1.40 pm: Court hearing adjourned
So Molla lives at least another day .... as the Appellate Division adjourned the arguments at 1.05 today on whether the appellate division had jurisdiction to hear an application seeking a review of the appellate division judgment imposing a death penalty on the Jammat leader.

The Attorney General Mahbubey Alam argued first that section 21, 24 and 16 of the International Crimes Tribunal Act 1973, and article 47 of the constitution barred the possibility of the court hearing a review application. Abdur Razzak, on behalf of the defence, then responded, and the court was adjourned in the middle of his arguments in which he argued that article 47 was no bar. I will post a summary of the legal arguments a little later.

Note that these are arguments on whether to hear the review, not on the merits of the review application.

1.07 pm: Court adjourned until tomorrow morning as arguments on maintainability continue

11.20 am: AG meets CJ?
Apparently a number of TV stations reported last night that Attorney General met the Chief Justice in early hours this am, at around 1am. In court this am the Chief Justice rebuked journalists from reporting this, saying it was not true.

Clearly if that was true, that would be a rather serious issue.

11.15 am: Kerry call
Have heard that call between US Secretary of State and prime minister about Molla execution did definitely take place this morning. Don't know any further details.

11.10 am: Revision application filing issue
Just to clarify issue about filing of review of app division judgment. The Defence had, until they sought a stay, not filed a review application but they filed it along with their stay application to the chambers judge, so say Defence lawyers. Apparently only recieved full set of certified copies of judgments yesterday afternoon.

11.00 am: Court to hear review maintainability issue
So first court will decide issue of 'maintainability' of review application - the government argues that court has no authority to hear matter. If defence successful, then court will hear merits of review application. If court rules that not maintainable, then according to Defence lawyers they will argue stay on basis of jail code, and also defectiveness of warrant of execution. (See 9.07 pm)

10.50 am: Defence lawyers plead vociferously that matter should be adjourned until 2 January (after court holidays) but court having none of it.

10.47 am: App Div court adjourns to 11.30 (50 min time) to hear arguments whether a review application before the appellate division is 'maintainable' or not

9.10: am: Kerry calls Hasina?
I can't confirm this but I have been informed that US Secretary of State John Kerry planned to speak to Sheikh Hasina at 9.am Bangladesh time (i.e that would have been ten minutes ago) apparently stressing how 'execution could derail election process'.

9.05 am: UN calls for halt
During the night, the UN issued a press release stating that:

'UN High Commissioner for Human Rights Navi Pillay on Tuesday called for an eleventh-hour stay of execution for Abdul Quader Mollah, a Bangladeshi politician convicted of war crimes in a trial that did not meet stringent international standards for imposition of the death penalty.'
It goes on:

The Office of the High Commissioner for Human Rights has written to the Prime Minister of Bangladesh, HE Sheikh Hasina, in a last-minute appeal to halt the execution.

In a statement last month, the High Commissioner urged the Government of Bangladesh not to proceed with the death penalty in cases before the International Crimes Tribunal, particularly given concerns about the fairness of the trials.

The United Nations opposes the imposition of the death penalty under any circumstance, even for the most serious international crimes.

Two UN Special Rapporteurs, on the independence of judges and lawyers, and on summary executions, have also called for the execution to be stayed.

9.00 am: Defence lawyers say that the legal hearing in the appellate division could start at 9.30 am

TUESDAY, 10 DECEMBER

12.10 am: Well unless there are some further remarkable events tonight, that is it from me. Until another eventful day tomorrow, of course. To find out when next posting on this blog, or next live blogging, follow me on twitter: @davidbangladesh or 'follow' the blog Good night from Dhaka.

12.05 am: The Dhaka jail superintendant tells New Age that he has received a copy of the handwritten order and the execution has been stayed

12.00 pm: I am somewhat surprised that the Attorney General did not hotfoot over to the chamber judge and argue against a stay of execution. There may be a reasonable explanation for this but dont know what this is right now.

11.48 pm: I just spoke to Abdur Razzak, the chief defence lawyer. He said:

'We are now in central jail. the court office is now closed so we cant have certified copy, so we have taken the clerk's assistant, Mr Islamuddin, who has personally accompanied us with court file, to show the jailer the hand written order which is signed by Justice Hossain'

In terms of the legal arguments that they made, Razzaq said that they were the following:

'Our aguments were that we have filed review petitions before the appellate division this evening, and these are pending, and that the jail code applies, so Molla cannot be executed before 21 days have passed and have 15 days to decide whether to make mercy petition, and that the warrant of execution was defective'

 He said that the application was 'ex-parte' - that is to say that there were no lawyer present representing the government - though apparently the defence did try to serve the stay application on the attorney general's office. Present along with Razzak was Khondaker Mahbub

11.25 pm: At 7.05 pm, below, I set out the key weakness in the particular allegation upon which Molla was convicted and then subsequently received the death penalty. I shall be writing a seperate article on what the appellate division said about the issues set out there, but can I encourage those interested to read these articles below which sets out why there is so much legitimate concern about Molla being hanged in relation to this particular charge

- Sole witness in Molla death case gave contradictory statements

- Unreliability of witness is reason alone why Molla should not hang

- Are the tribunal's justified in restricting defence witness numbers
11.08 pm: Another interesting omission in terms of last minute statements was from the UN. It has produced a statement yesterday from two special rapporteurs, but surely you would have expected the UN High Commissioner for Human Rights Navi Pillay to make an urgent request for halting the execution

11.06 pm: Statement from UK (8.44pm), statement from EU (9.50pm), but no statement from the US. Very odd, particularly since Ambassador Rapp made a call this morning to Shafiq Ahmed, the former law minister and now legal advisor to the prime minister, who made a number of apparent commitments to Rapp including that Molla's lawyers would be able to seek a review of the appellate division judgment. (see 7.20pm)

10.46 pm: Can there be any other suprises in store with this International Crimes Tribunal. Believe me there has been everything; abducted defence witnesses, secret skype tapes, alleged procured witnesses, violent and fatal attacks on prosecution witnesses ... and I have missed out lots. Enough already!

10.36 pm: Inspector General of Prisons says that he has yet to receive any order from the court to stay the execution. Well he has 1.5 hours to get it, but knowing how long its takes courts to ready their orders, that is not a long time! But news now breaking everywhere

10.22 pm: Chamber court, Justice Syed Mahmud Hossain orders stay of execution till 10.30am when full bench will hear stay application, Tajul Islam, a defence lawyer, tells New Age

9.56 pm: Am told that we should hear very soon about last minute attempt by Defence lawyers seeking a stay of execution

9.50 pm: The EU Heads of Mission in Dhaka has published a statement on the Quader Molla hanging (see 8.44 for UK government's statement). It calls for halting the execution, and states that the EU 'notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.'

The European Union reiterates its opposition to the death penalty
The European Union is opposed to the use of capital punishment in all cases and under all circumstances, and has consistently called for its universal abolition. The European Union has followed the judicial proceedings in Bangladesh concerning the crimes committed during the war preceding the independence of Bangladesh in 1971. From the start of the trials, the European Union has repeatedly stressed its concern about the possible application of the death penalty under the International Crimes (Tribunals) Act.

The case of Mr. Abdul Quader Mollah has now reached a stage where an execution of the death sentence given by the Supreme Court on 17th September could be imminent. The European Union notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.

In this context the EU reiterates its position regarding the recent death penalties issued by the International Crimes Tribunal and the Supreme Court as well as the 152 death sentences that were recently handed down in the trial following the BDR mutiny in 2009. The European Union calls on the Bangladeshi authorities to commute these sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment
9.40 pm: Quader Molla's family was allowed to stay for 30 minutes inside the jail speaking to Molla. The son said afterwards that his father said that it was a 'political killing' due to the fact that he was involved in 'islamic politics'

9.27 pm: So, the Chamber Judge whom the defence lawyers have gone to see is Justice Syed Mahmud Hossain. He was, can you believe it, one of the five judges sitting on the appellate division bench hearing the appeal against Molla, and one of the four who agreed with the death penalty. All he said in the judgement was:

'I have gone through the judgements to be delivered by my learned brothers, Surendra Kumar Sinha, J, my learned bporther Mr Abdul Waham Miah, J [who dissented] and my learned brother ANM Shamsuddin Choudhury, J. I agree with the judgment of my learned brother Sinha J.'
Sinha gave the majority judgment

9.11 pm: Person in contact with defence lawyers says that apparently 'Molla is not seeking clemency'.

9.07 pm: Likely immediate legal issue that defence lawyers will raise with appellate division judges is legality of the warrant of execution - they already sent a notice to the prosecutors on this issue as part of informing them that they were about to file a review application. I have written about the claim that the warrant of execution is defective here.

By the way, fact that defence lawyers have sent a notice to prosecutors informing them that they were about to file a review shows how dishonest the state minister for law is (see 8.20) when he said that he was surprised that the lawyers had not yet filed a review. The lawyers should in principle have a month to file application according to the appellate division rules

8.50 pm: The defence have sent out two legal teams seeking a stay of execution. One to the chambers judge and one to the chief justice. The judge in chambers has apparently asked for the Attorney General to attend.

8.44 pm The UK government's Senior Foreign Office Minister, Baroness Warsi has issued a statement. It reads:

"I am deeply concerned at reports of plans to execute Abdul Qader Mollah in the coming days.
"The UK opposes the death penalty in all circumstances as a matter of principle. We consider that its use undermines human dignity and that there is no conclusive evidence of its deterrent value. We further note that Abdul Qader Mollah was sentenced to death following an appeal permitted under retrospectively applied legislation, and that he was not permitted to review his sentence before the Supreme Court. Bangladesh's commitments under the International Covenant on Civil and Political Rights (ICCPR) require that all citizens be treated equally before the law.
"The UK calls again for Bangladesh to implement a moratorium on the death penalty leading to the eventual abolition of the death penalty."
The toughest statement so far from the UK government, who in public have been very reluctant to say very much on this issue

8.35 pm. Inspector General of Prisons says that five hangmen are ready and prepared in Dhaka Central Jail

8.30 pm: Molla's defence lawyers are on the way or about to be on their way to the Chief Justice's house seeking a stay of execution. My view: highly unlikely that something will come of this. (if I said why, could be in contempt of court!)

8.20 pm: More detail on what Quamrul Islam said at the press conference (see 7.55). He said that Molla was offered to seek clemency before two magistrates and he did not do so. Also said that Molla had not sought a review before the chambers judge of the appellate division in the last three days as he thought that he would, though at the same time saying he did not think Molla had the right to make such an application.

Main reason why Molla's lawyers not filed the review application, according to the lawyers, is that they needed copy of the certified copy of the judgment and had not been provided these!

8.00 pm: An alternative explanation (see 6.55 and 7.40) of why Molla is being executed has been given to me by one diplomat. The first signs of a dialogue are starting - not yet close to an agreement - and the government might want to put the BNP into a difficult position. Either the BNP could side with Jamaat and be outraged with the execution and come out of the talks - and then the Al government says, well we told you so, the BNP don't really want dialogue. Or the BNP continues with dialogue and there are strains in relationship with the Jamaat.

7.55 pm: Some plain speaking. There is absolutely no way that the state minister for law can say that all legal options exhausted (see 7:46). The government cannot claim that the defence had no right to a review - that was for the court to decide (see 7.40), and of course Shafique Ahmed told Ambassador Rapp (see 7.20) that Molla had a right to seek review. In addition, only this morning government officers were saying that the jail code did apply and that Molla had seven days to decide whether to seek clemency. The level of disingenuousness here is quite remarkable

7.46 pm: State minister for law, Quamrul Islam tells media that all legal options for Molla were 'exhausted', and that Molla could have sought mercy but did not take opportunity though he was offered it.

7.42 pm: Family of Quader Molla, now waiting outside jail gate

7.40 pm: Some people are not convinced by explanation at 6.55pm - and argue that political deal is unlikely. It could be because the government wanted to avoid various legal complications that could delay the process. There are three issues: (a) defence lawyer arguments that warrant of execution is defective. (b) application to the appellate division for a review of the appellate court's own order. Whilst this was unlikely ever to succeed, the appellate division bench is going on holiday at the end of the week. (c) the defence may have tried to argue that not only jail code applied, but the amended ones applied which give 15 days for a mercy petition.

7.25 pm: State minister for home affairs has confirmed that execution of Molla will take place at 12.01 am

7.20 pm: At 11.am today I spoke to Shafique Ahmed the former law minister and currently adviser to the prime minister and he confirmed that he had spoken to Stephen J Rapp the US Ambassador-at-Large who heads the office of global justice. Shafique Ahmed told me that he had told Rapp that he was 'no longer in charge and was just an adviser to the prime minister.'

'Rapp expressed his [concerns], and I told him that I would try to convey them to the correct authorities,' he said. 'I told him that all due processes will be maintained, and that Molla could seek clemency from the president under the constitutional provision. This right is available to everyone,' he said. Shafique was apparently referring to article 49 of the constitution which states that, 'The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.' He also said that Molla would have the right to go seek a review of the appellate divisions judgment.

It appears that the government may well break these two apparent commitments if Molla is in fact hung tonight.

7.15 pm: A colleague spoke to the Inspector General of Police earlier this evening and was told that 'everything was ready for the execution', but did not say when it would take place

7.05 pm: It is important to remember the following: the case on which Molla is being hung involves the murder of six members of one family.

There was only one witness to the incident, a daughter of the family who was the sole survivor. She was 13 years at the time. In her testimony in court, she said that on 26 March 1971 her father ran towards the house and said "Qader Molla will kill me" and that Quader Molla pulled her father by the collar, and draged him out of the house, The men then killed her mother, three sisters (one of whom was first raped) and baby brother. After the incident, she said, 'A person called Kamal Khan who served tea to freedom fighters told me, "Quader Molla killed my parents." My Ukil Baba [marriage witness] Akkas Molla also told me the same thing ...'

There are significant weakenesses about the evidence given by Momena, now aged about 55 - she had given two previous statements which contradicted her testimony in court .

The first statement was given on September 28, 2007 – five years before she she testified in court - when she was interviewed by a researcher, working at Jallad Khana, the annexe of the Liberation War Museum at Mirpur.

In the statement, there is no mention of Molla. 'Biharis surrounded [Momena's father's house] house and took [her father] away,' the statement reads. It also states that Momena had told the researcher that she was not present during the incident: 'Because the elder daughter of Hazrat Ali, Momena Begum, left for her father-in-law's house two days earlier, she remained alive.'

The statement went on: 'After a few days, the elder daughter of Hazrat Ali, Momena Begum, came to know everything about what happened but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.'
The second inconsistent account given by Momena was to Mohana Begum, the deputy investigating officer assigned to investigate the case against Molla. Whilst in this statement, Momena said that on March 26, 1971, she was in the house when her family was killed, there is, again, no mention of Molla's presence.

Instead, Momena told the investigation officer, as she had previously told the museum researcher, that the men who came 'were Biharis. They entered along with the Pakistani soldiers.' In fact, Momena specifically told the officer that one person was present. 'I know all the Biharis. Aktar Gunda was with them. He was known as a gunda (criminal) in our locality,' she stated.

Molla's name is mentioned twice in the investigation officer's report. Momena is quoted as saying: 'When the war broke out, [Akter Gunda] joined with Quader Molla of Duaripara and started to kill people in Mirpur' and subsequently, 'I heard about Quader Molla and Aktar Gunda and their force from people around.' However, the statement contains no allegation that Molla was present at the time of this offence.
To read more about this see,

- Sole witness in Molla death case gave contradictory statements

- Unreliability of witness is reason alone why Molla should not hang
6.55: How to explain what is going on? One explanation is that the sudden turn around (earlier this morning there was talk of 7 days period for Molla to consider clemency application (see below) is an indication of progress on a possible deal brokered by the UN Assist Sec Gen currently in Dhaka concerning an election time government. Perhaps the government realises that it may soon be losing executive power and so it needs to execute Molla whilst it has control of the state apparatus?

6.50pm: We will all know more soon as the state minister of law, Quamrul Islam has asked journalists to come to his house for a press conference. Must be about Molla

6.30pm: About an hour ago, Quader Molla's wife was hand delivered a letter asking that the family go to Dhaka Central Jail. This is usually an indication that the execution will take place. This is a reversal of the situation this morning where government officials had said that Molla would be given seven days to decide whether or not to seek presidential pardon. Of course, this morning's position was a reversal of yesterday's position which was that the jail code did not apply at all!
David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-8976386620668168122013-12-10T10:28:00.001+06:002013-12-10T15:29:43.857+06:00Death of Mostafa Howlader - Tribunal witnesses must not be targeted
Please note that post has been amended from the original one, see *s below
-----------------------------

Mostafa Howlader, a witness against Delwar Hossain Sayedee, has died from his injuries in Dhaka Central Medical Hospital.

This is absolutely chilling. Any violence against witnesses of the tribunal has to stop. Whilst, the exact identity of those responsible for the incident that resulted in the killing are not yet known - according to a report in the Dhaka Tribune, Mostafa Howlawder identified them as activists of the Jamaat-e-Islami/BNP.

'Mostafa's son Hafizur Rahman, 20, called another witness against Sayedee Ruhul Amin Nobin immediately after the attack. Hafiz told Nobin that he had recognised two of the three attackers who chopped his father with a machete. They were activists of BNP and Jamaat, he said.'
It should be noted that the Jammat argue that this interpretation is not consistent with earlier reports of the event. banglanews24 reported at 9.32 am on 8th December 2013 that 'Nasir Uddin, the Officer In Charge (OC) of Indurkani Police officer informed Bangla News that during midnight burglars entered into his house at which Mostofa and his wife get up and at that time both were seriously injured by sharp object of the burglar.' Daily Shamakal reported the same news in its onine version on the same date at 13.58 pm *(new para added)

Whilst this incident may be a burglary unconnected with the ICT, I think it is a reasonable assumption to make that it is connected.*(new para added)

Assuming for the moment - and I accept that the evidence remains unclear*(new phrase added) - that the claim in the Dhaka Tribune is correct, it is somewhat extraordinary that whilst the Jamaat-e-Islami lawyers are putting such great (and in my view legitimate) efforts to prevent the Bangladesh state killing Abdul Quader Molla through a judicial process, at the same time the party's supporters are apparently responsible for the death of a trial witness. Any moral high ground that the Jamaat lawyers feel that they are on, is just cut from beneath them.

I have written critically about the Delwar Hossain Sayedee trial and have raised many issues about the credibility of the whole trial process - but whatever concerns one may have about the integrity of the trial nothing justifies the harming of the witnesses.

We are at a dangerous moment in Bangladesh. There is significant concern that if the Awami League loses hold of the state apparatus, there will be significant blood letting against those perceived to have been responsible or involved in the government's so called 'misrule' over the last five years. Those targeted could, it seems, include the international tribunal witnesses. This is a terrible possibility and must not be allowed to happen

Many trials witnesses must be scared of what could happen to them. The Jamaat and the BNP should make clear public statements that no tribunal witness should be targeted by their supporters.

To see the evidence that Mostafa Howlader gave, go to this page, and look at the 8th witness
David Bergmanhttp://email@example.com