A MAN & HISTORY ON TRIAL 

THE CASE OF DAVID BERGMAN

By Lawrence Lifschultz

Justice Obaidul Hasan and his colleagues at Bangladesh’s International Crimes Tribunal (# 2) are scheduled to rule on the question of an unusual historical dispute.  How and why this question has become the subject of a contempt proceeding is a troubling story.Their decision is expected on October 13th and it may have ramifications that even the justices of ICT-2 may not fully appreciate.

The case concerns the British journalist, David Bergman, who has been a long time resident of Bangladesh.  Mr. Bergman has been accused of “contempt” of Court for exploring an issue pertaining to an historical reference that one of the Tribunals made in a particular case. The Tribunal itself did not bring the accusation against Bergman. The proceedings were initiated in the form of a petition by a third party, a High Court lawyer, Abul Kalam Azad. He accused David Bergman of showing disrespect to the Tribunal by raising a question about the number of casualties that occurred during Bangladesh’s War of Liberation.

After hearing Azad’s petition, the Tribunal issued an Order to Show Cause seeking a response from Bergman as to why he should not be held in contempt. While there were two other relatively minor charges raised by Azad in his petition, the central accusation focused on the fact that in a review of a forty-year debate David Bergman had questioned the accuracy and indisputable character of a statistic that had been cited by the War Crimes Tribunal.

The petitioner in this case, Abdul Kalam Azad, is the type of man who gives nationalism a bad name. Nationalism, as a singular ideology, is a two-edged sword.   In the context of an oppressed nationality seeking to overcome colonial rule or foreign occupation, nationalism can play a powerful and progressive role.  But in other circumstances it can become the breeding ground for bigotry and narrow ideological dogmatism.

In the case of Bosnia in the early 1990s, for example, Serb nationalism became genocidal and lead to the brutal “ethnic cleansing” of Bosniak—largely Muslim—and Croatian—largely Catholic—populations, of a country with a long historical tradition of multi-ethnic tolerance and peaceful co-existence among its diverse communities.

The history of Bangladesh’s struggle for Liberation represents an example of a “progressive” nationalism. It is one of the clearest and most courageous examples in modern history of a democratic movement pursuing every non-violent option, including winning a national election, in order to overcome the trap of underdevelopment and regional inequality that were an integral part of the very structure of Pakistan’s military dictatorship. The dictatorship would not yield to the results of a democratic vote. On 25 March 1971 the Pakistan Army opted for mass murder instead and from that moment Bangladesh’s War of Liberation began.

What does this historical background have to do with David Bergman’s trial for contempt? As it turns out, a great deal.

Bangladesh has been in search of what the human rights community calls “transitional justice” since the country won its freedom in 1971.  Transitional justice is an awkward term that is meant to reflect a sense that justice and accountability has been achieved within a society in the aftermath of war crimes and crimes against humanity.  It means that an effective effort has been made to bring those who have committed these terrible crimes to justice.

The coup of 1975, only four years after Liberation, interrupted that journey for Bangladesh.  Instead, during the tenure of the back-to-back regimes of General Zia and General Ershad which emerged after the murder of Sheikh Mujib, notorious collaborators of the Pakistan Army found themselves under the protection of Bangladesh’s new military dictators. Several ended up in high government positions. It was a curious turn of fate but not an accidental one.  There was a great deal of careful planning and killing involved in order to create such a state of affairs.

It took nearly forty years for a serious effort to be undertaken to bring the war criminals of 1971 into a system of justice that would focus on putting these men on trial. Thus Bangladesh’s first International Crimes Tribunals was established in 2009 and the second, soon after.  These were steps of great significance. This is not the place nor the time to examine in detail the many controversies that have emerged related to the work of the Tribunals. Nor is it the place to examine how Pakistan, with the shameful cooperation of the United States and France, blocked the sharing of UN expertise and assistance to Bangladesh in setting up the Tribunals. I will return to these topics in another article.

What is of importance today is that one of Bangladesh’s War Crimes Tribunals may decide to hold in contempt David Bergman, a reporter from whose early work we learned that war criminals from the 1971 War of Liberation were living with impunity in England.  Bergman was a key member of the team that researched and produced the excellent 1995 Channel Four documentary, “The War Crimes File”. This documentary threw a spotlight on individual members of the Jamaat-e-Islam and its student wing who were allegedly involved in multiple murders in 1971 but were living openly in Britain without fear of arrest. The evidence mustered in this documentary was impressive.

The contempt allegation against Bergman relates to a sentence in a 3 October 2011 Tribunal order charging Delawar Hossain Sayedee.  The order made a reference to the deaths of three million people during the War of Liberation. 

Bergman has edited a website in which he has reported and commented on the various trials taking place before the War Crimes Tribunals.  He decided to take up the controversial topic of how many people died during 1971. Obviously, this is a difficult subject. On its own it was not central to the indictment of Sayedee, as the evidence against Sayedee was based on other factors.  But in making its ruling the Tribunal had cited a statistic that is accepted by many as an indisputable fact.

While I might have chosen a different context to examine this issue in detail, David Bergman decided to do it within the framework of a discussion of the Tribunal’s indictment of Sayedee. Therefore, on 11 November 2011, he wrote a detailed review of the historical debate on the issue of war casualties. Here he showed his capabilities as a ‘scholar journalist’.  Bergman’s mastery of the material covering the full spectrum of the debate on this issue was impressively clear. It is a thoughtful and insightful commentary.

However, Abul Kalam Azad, the attorney who called for Bergman to be held in contempt, argued that no one should question the accuracy of the statistic of three million deaths during the War of Liberation.  From the vantage point of Azad’s narrow-minded ‘nationalism’ anyone who questions this statistic must be ‘an enemy of the people’,  ‘an enemy of the state’, or an enemy of the Tribunal. Here we approach the really difficult issue. Is it the role of a Tribunal to pass judgment on the ‘historical correctness’ of a particular position in a historical debate such as this one?

Let me complicate the picture even further. In 1974, I was the Far Eastern Economic Review’s resident correspondent in Bangladesh. In the course of my reporting I met a very interesting man who had a very intriguing story to tell about the work he had recently been doing. He was employed by the Home Ministry and was part of a team of researchers conducting a study that was trying to assess the total number of casualties that had occurred during the nine months of 1971 as war raged across the country.

The Home Ministry study was trying to assess how many people had died directly from the armed violence of the Pakistan Army and their local collaborators. They were also trying to estimate how many people had died on the road or once they reached refugee camps across the border in India. Many of these deaths were among children and the elderly. The study was conducted by field workers systematically asking families in villages about those who had died from their village during the war and under what circumstances.  They were slowly building up a picture across the country. At the time we met, the Home Ministry team had completed their survey in approximately a third of the districts.

My Home Ministry source told me that based on their projections the number of deaths from the war was estimated at 250,000 people. As I recall, this did not include the young, the ill and the elderly, who died either in the refugee camps or as they fled the Pakistan Army. A quarter of million people dying from armed violence is by any measure a terrible and tragic number.  However, according to my source, the study was abruptly shut down and discontinued. The reason was that the survey was moving toward a statistical conclusion that differed with the prevailing orthodoxy that three million people had died from armed violence and refugee migration.

I never published this account because I was leaving Bangladesh within a week to take up a position as South Asia Correspondent of the Far Eastern Economic Review based in New Delhi. I had always meant to return to the issue but the Emergency in India and other events conspired to make this one of the few stories I never revisited as I intended.

Yet, in the context of the trial of David Bergman on contempt charges, it is has assumed great relevance. It is relevant because the government’s own study in 1974 essentially questioned the accuracy of the three-million figure and yet the ICT-2 is now considering holding a journalist in contempt for raising a question about this issue.

There is something wrong with this picture. If Justice Hasan and his colleagues declare Bergman in contempt, are they entering a terrain where they must hold Dr. M. A. Hasan and other researchers, such as myself, in contempt because there is only one true answer and the Court will declare what it is? 

This is not the appropriate role of a war crimes tribunal in pursuit of justice in a democratic society. Perhaps, in one of the Stalinist courts of the 1930s where men like Bukharin were compelled to confess to ideological ‘errors’, one could expect such a ruling. In the minds of men like Abul Kalam Azad, the War Crimes Tribunals should become the ideological guardian of historical ‘facts’ whether they be disputed or not.

The historic task of the Tribunals is to bring to justice those responsible for the appalling war crimes and crimes against humanity that were carried out in a premeditated manner by fanatical supporters of the Pakistani state. The impunity under which they have lived for decades is a stain on the conscience of this country and the world.  The Tribunals have an immense task to accomplish justice in this regard and thereby honor the memory of the hundreds of thousands of victims. My view is that no one knows the truth or has an accurate number. In my opinion the death toll from armed violence might well have exceeded the 250,000 estimated by the 1974 Home Ministry study before it was shut down.

In March 2011, I was invited by the special investigations unit of Bangladesh’s War Crimes Tribunal to speak to the investigators about my knowledge and experience in Bosnia. I had co-edited a book with Rabia Ali entitled Why Bosnia? Writings on the Balkan War. I had also traveled widely in Bosnia and sadly I had walked through the many parks and soccer fields of Sarajevo and other towns that were filled with graves where the civilian dead were hurriedly buried in the midst of the long sieges and heavy bombardment of Bosnia’s war ravaged cities. I also had friends among the contributors to our book who had worked with the war crimes tribunals that were set up following the conflict.

In Bosnia, all the unmarked mass graves scattered throughout the country were excavated when the conflict ended. DNA tests were done on each person whose remains were exhumed. Their remains were respectfully kept until living family members could reclaim their relatives for burial once they had been accurately identified. This happened at Srebrenica and elsewhere.

The cost of deploying carefully trained forensic teams was significant and was funded by the UN, the European Union and the Bosnian government. Although it took years, this work was undertaken as a moral commitment by a society coming to grips with the aftermath of genocide. By this means, the Bosnians have built up a rough estimate of those who perished. But no one knows the precise number. Such a number is always elusive.

When I met the Bangladesh investigations unit in 2011, I was told by the team that they had identified over two hundred mass graves across Bangladesh, and they were still counting. David Bergman in his discussion of this issue cites the study of Dr. M.A. Hasan, the Convenor of the War Crimes Fact Finding Committee, who since the fall of General Ershad had a assembled a team of researchers who “travelled around the country, village-to-village, to uncover accurate information on the numbers of dead.” Dr. Hasan told Bergman that he thought the figure of 3 million was an exaggerated number and that more accurate number was closer to 1.2 million. “We have identified 948 killing fields or mass graves,” Hasan told Bergman. “Our research suggests that for every one grave that we have found there are four others which have been built upon or are not accessible. That makes a total of 5,000 graves.” 

Dr. Hasan estimated approximately a 100 bodies in each grave, which results in an estimate of 500,000, or twice that of the projection developed by the 1974 Home Ministry study.  Yet, Dr. Hasan estimates based on his discussions with local villagers that those buried in the mass graves represent about 30 percent of the total number of deaths, with the a greater number of the dead having been disposed of by being thrown into local rivers where they were washed away. Thus, Dr. Hasan, who is perhaps the only person to have researched this issue in such depth, estimates that 1.2 million people died during the Liberation War. Of course, this does not include many young, ill and elderly individuals who died in the refugee camps or on the road fleeing the violence.

The truth is that no one knows with any precision, or even approximately, what a real number might be. Dr. Hasan’s estimate is probably the most accurate.  Whatever the number is, the unmistakable truth remains that it is a number of horrific magnitude.  It reflects the pain and grief of thousands of families whose loved ones perished in the war.

Entering into this complex, difficult and emotional terrain, the War Crimes Tribunal (ICT-2) has decided to make a judicial ruling on a matter upon which jurists have no authority or place to declare a “right answer”.  No one needs someone like Abul Kalam Azad telling us, or asking a Court to tell us, what to think. Indeed, the man himself has failed to demonstrate any knowledge of the disputed facts or the debate that has taken place over four decades. Can ignorance dressed up as patriotism be anyone’s guide to knowledge?

One can only hope the Tribunal is wise enough to understand that this historical debate is outside their jurisdiction to rule on.  The War of Liberation was a war in the name of democracy and self-determination. It was an uprising against the ignorance, the hubris and the cruel violence of a military dictatorship determined to deny the outcome of a democratic election.

Bangladesh’s democracy, like others before it, is struggling. What is needed is enlightenment within its most important institutions. In my view, an enlightened Court would think hard about what Voltaire said about opinions he didn’t agree with. Voltaire was a distinguished 18th century philosopher and writer associated with the French Enlightenment.  He once commented, “I do not agree with what you have to say, but I’ll defend to the death your right to say it.”

×  ×  ×

On May 23, 2011, Serajur Rahman, the Deputy Head of the BBC’s Bengali service, wrote a letter to the British newspaper The Guardian. He was commenting on an article written by Ian Jack in which the issue of the number of deaths during the Bangladesh war was discussed. Rahman had a story to report. He wrote the following:

“On 8 January 1972 I was the first Bangladeshi to meet independence leader Sheikh Mujibur Rahman after his release from Pakistan. He was brought from Heathrow to Claridges [in London]. . . and I arrived there almost immediately. . .He was surprised, almost shocked, when I explained to him that Bangladesh had been liberated and he was elected president in his absence. Apparently he arrived in London under the impression that East Pakistanis had been granted the full regional autonomy for which he had been campaigning.

“During the day, I and others, gave him the full picture of the war. 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.”

I met Sheikh Mujib in July 1969 when I was traveling through Dhaka after working in India for a year on a Fellowship from Yale University where I was an undergraduate. We had a long talk lasting two hours, just the two of us, over lunch and tea at his residence in Dhanmondi. I met him again after independence when I returned to Bangladesh as a young journalist and lived in Dhaka for a year. After 1975 I would spend many years unraveling the circumstances of his assassination. 

There is not a single man or woman I’ve ever met who hasn’t made a mistake in their lives. Mujib had his own share, as do we all. I believe he misspoke in the Frost interview that Serajur Rahman has written about. The error should have been corrected but it never was. Unfortunately, in some circles this number took on the quality of rigid dogmatism.

Indeed, Serajur Rahman’s estimate in light of Dr. Hasan’s later research was probably an underestimate, but Rahman wisely pointed out on that cold January day in London in 1972 that there was “no accurate figure of casualties”. It would take research and analysis in the years ahead to gain a clearer understanding of the magnitude of suffering the people of Bangladesh underwent to gain their independence.

I am publishing this article on a website of a small publishing house (www.pamphleteerspress.com) based in the United States with which I am affiliated. My right to publish is protected by the First Amendment of the American Constitution. Unfortunately, I am unable to publish this article in Bangladesh because the Justices of the War Crimes Tribunal some months ago declared this matter sub judice within their jurisdiction, and made clear that there should be no public discussion of this matter until they have issued their decision. Therefore, my Bangladeshi colleagues are unable to publish this article in their newspapers. However, I believe there is relevant information that should be in the public domain that may inform both the Court and the public about new information.  The facts of the 1974 Home Ministry study are published here for the first time.  My purpose is not to defy the Court but to inform it.

9 October 2014  —  Stony Creek, CT  USA

Lawrence Lifschultz was South Asia Correspondent of the Far Eastern Economic Review (Hong Kong). He has written extensively on European and Asian affairs for many publications, among them The Guardian, Le Monde Diplomatique (Paris), BBC, Economic & Political Weekly (Mumbai) and The Nation (New York). He is the author of Bangladesh: The Unfinished Revolution. He can be reached at: OpenDoor.Lifschultz@gmail.com