But now shrinks the place where you stand: Where now, stripped by shade, will you go? — Paul Celan

The Trial of David B.

“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.”  Franz Kafka, “The Trial”

I was reminded of Kafka’s novel when I heard that the charge of contempt of court has been brought against the Bangladeshi based British journalist David Bergman. For some time now Mr. Bergman has been blogging in great detail on the proceedings of the Bangladesh International Crimes Tribunal (ICT) which is in the process of trying a dozen or so Bangladeshi nationals (some in absentia) for war crimes and crimes against humanity committed during the country’s nine month long Libration War of 1971. Although recognized by many in Bangladesh (the writer and David Bergman included) and abroad as a long overdue, necessary step towards coming to terms with the traumatic birth of Bangladesh, and bringing justice to the victims, the trials have nonetheless been mired in controversy, most importantly about serious lapses in its procedural aspects.

David Bergman, in his blog http://bangladeshwarcrimes.blogspot.com/, which contains more than eight hundred posts so far, has been chronicling these trials. Written in English, his blog is one of the few non-Bengali language outlets reporting on what’s been happening in these trials. Though most of the posts involve day to day notes and transcripts of tribunal proceedings (which are open to the public), some of the posts have involved commentary and have been critical of the trial process which Mr. Bergman sees as falling short of the standards that both national and international courts dealing with international crimes generally follow.

For example, one of the blog posts for which contempt charges have been brought against him, compares the international standards in war crime trials held by other international tribunals in-absentia to those of the ICT. He points out that contrary to the claims made by the ICT it has actually fallen short of the standards of both the European Court on Human Rights as well as the UN supported Special Trial for Lebanon in the in-absentia trial of Abul Kalam Azad (Bachchu Razakar). The post also deals with the choice of the defence lawyer appointed by the state, who seemed to have definite political leaning towards the ruling Awami League party. David Bergman shows that the defence lawyer made very little independent initiative to investigate the charges brought against his (absent) client and was thus quite ineffectual as a defence attorney. David Bergman argues convincingly that the practice followed by the defence lawyer, although in line with the standard practices in Bangladesh, fell woefully short of international standards applied by international courts and tribunals dealing with such trials. The defence was also given relatively little time in view of the gravity of the trial although given the defence lawyer’s relaxed attitude it seems unlikely that more time would have made a difference in this case.

Why was David Bergman arguing for proper and fair standards for this trial? The particular blog article on the trial and conviction of Bachchu Razakar is silent on this. As explained below in greater detail, David Bergman’s initial interest in the war crime trials stemmed from a film he made in the 1990s on three British nationals– one of whom, Chowdhury Mueen Uddin, has also been tried and convicted in-absentia by the ICT. When the verdict came out in this case, David Bergman had this to say:

“[T]he trial was held in absentia. This, in my view, was a great pity, as the prosecution case was not able to be been [sic] properly tested, and Mueen Uddin was not able to put forward his own defence.

I have always thought that evidence against Mueen Uddin, collected in the making of the film, was compelling. But I also knew that journalistic endeavours are in themselves not sufficient proof of a person’s guilt, and an appropriate judicial process was essential.”

What I would like the reader to take away from this is that David Bergman isn’t satisfied by simply “journalistic endeavours” (even when referring to his own work) to prove a person’s guilt; he wants to see iron clad proof of the accused’s guilt. That can only be done if the trials adhere to certain strict standards.

In general Mr. Bergman’s blog posts come across as cool headed and unemotional. He is precise and detailed in his analysis of the facts and clearly knows what he is talking about.  He has background in both law and politics from the University of Birmingham and the London School of Economics, as well as almost a decade of experience of running the Centre for Corporate Accountability in the U.K. He has read widely on the topics that he discusses and it shows clearly in his posts. He is very patient in answering well formulated questions from his readers in the comment section of his blog.

Another one of the contentious blog posts deals with issue of the accuracy of the official figure of 3 million people killed in the war of 1971. In Bangladesh this is a highly emotive number and by calling it into question David Bergman has, according to the contempt application to the ICT, “caused grave hurt to the emotion of the nation and also belittled the authority of a court of law”.

It is not my aim here to rehash the arguments and estimates for the number of actual dead but simply to point out that there is an extremely lively debate going on the veracity of this number amongst genocide historians and activists around the world — and in informed circles this “3 million” figure is far from an established fact. For example, most recently, Gary Bass who is a genocide scholar at Yale University, writes in the preface to his new book “The Blood Telegram: Nixon, Kissinger and a Forgotten Genocide”,

“Midway through the bloodshed, both the Central Intelligence Agency and the State Department conservatively estimated that about two hundred thousand people had lost their lives. Many more would perish, cut down by Pakistani Forces or dying in droves in miserable refugee camps.”

I find it extremely strange that precisely when historians and writers around the world are calmly discussing this number, for the sake of historical understanding of the conflict, the ICT appears to believe that David Bergman, by the mere fact that he has pointed out that there is such an international debate, could be in contempt of the court. How does discussing a debate “hurt the emotion of the nation”? Who is the nation and how does any court seek to speak for its behalf? Has there been a referendum to verify that the nation has indeed been insulted? Even if there were such a referendum doesn’t the cause of truth trump the nation and individual judge’s “feelings”? These are questions that should naturally present themselves to us.

I grew up in a Bangladesh under various military dictatorships (Zia and Ershad). Under these dictatorships Sheikh Mujibur Rahman was a name that was edited out of the school textbooks. I still remember with awe that day when I was reading a short story by Jahir Raihan titled “Shomoyer Proyojone” (translation: What the hour calls for) to my father from my school textbook as preparation for my Bengali final exam. One of the lines from the story struck my father as odd and he pulled out the original story from his library to show me that the name of Sheikh Mujibur Rahman had been edited out of the short story. That little episodes stands out in my mind as representative of the kind of pervasive rewriting that our history had to suffer at the hands of military dictatorships. (For a history of censorship in Bangladesh see Naeem Mohaiemen’s article on the subject.) But when the court decrees that to contest the “3 million” figure is to “cause grave hurt to the emotion of the nation and belittle the authority of a court of law” aren’t they doing the same thing as military dictatorships that caused so much damaged to Bangladesh? Shouldn’t we be committed instead to talking and discussing the truth regardless of how much “hurt” it causes to the nebulous “emotion of the people”?

Recently in Bangladesh we have seen a continual silencing of dissenting voices. Granted that some of these voices have had their own agendas, and some of these voices have been outright ugly and noxious, but then hasn’t the government had its own agenda in silencing those voices? This gradual elimination of contrary opinions from the public sphere has created an atmosphere of intimidation such that we have started to censoring ourselves. This does not bode well for the cultural and intellectual future of Bangladesh. Especially, when a completely independent and politically non-partisan voice like David Bergman is being threatened to be silenced we should be worried how extreme the situation has become.

If we look at the history of David Bergman’s link to Bangladesh we see that after a short visit at the time of the fall of Ershad (where he wrote a piece for the EPW), his first significant visit to Bangladesh was in 1994 to investigate Chowdhury Mueen Uddin who at that point was a British citizen and has been living in the U.K. for many years, and had even become a community leader of the Muslim community in London. What David Bergman’s film “The War Crime Files”, which he made in collaboration with Gita Sahgal, and several Bangladeshi journalists, unearthed was the extensive evidence for the active role that Chowdhury Mueen Uddin seemd to have played in the killings of the pro-independence Bengali intellectuals in the final days of the Liberation War. The film also documents Chowdhury Mueen Uddin’s complicity in routine torture and mass killings in Feni which was his hometown.

“The War Crime Files” should be recognized for what it is: an important milestone in the history of Bangladesh’s search for truth and justice for atrocities of 1971. It builds upon and carries forward an important tradition by brave individuals (which includes cultural heroes such as the writer and activist Jahanara Imam) in its search for justice for 1971.

In recent years Bangladesh has initiated the laudable practice of recognizing those foreign nationals who stood by Bangladesh in her hour of need during the Liberation War. But did her need vanish with the surrender of the Pakistani troops on the 16th of December, 1971? Doesn’t pursing  and exposing the killers who wanted to maim Bangladesh in its moment of emergence as a new and free country by killing its leading intellectuals qualify as standing by Bangladesh in her hour of need, even if it was done twenty-three years later? Don’t both David Bergman and Gita Sahgal deserve to be given “Friend of Bangladesh” awards for their contribution to the pursuit of justice? Even if they aren’t we as a nation should at least morally recognize that they stand in the same category of those who have actually been recipients of the award. Those who are swift to judge David Bergman for critiquing the ICT shouldn’t forget this aspect of his involvement with Bangladesh.


“[T]he bloody massacre in Bangladesh caused Allende to be forgotten, the din of war in the Sinai Desert drowned out the groans of Bangladesh, the massacres in Cambodia caused Sinai to be forgotten, and so on, and on and on, until everyone has forgotten everything.”

Milan Kundera, “The Book of Laughter and Forgetting”

What is the contribution of David Bergman to Bangladesh apart from the obvious fact that he is the maker of an extremely important movie about its past? Many have argued that by critiquing the ICT in his blog David Bergman has “helped the cause” of Jamaat-e-Islam and its incarcerated leaders who are awaiting trials for crimes against humanity by the ICT. One should note that any criticism of the fair standards of any trial will in almost all cases likely to benefit the defendents – and that cannot be a reason against criticism. However, to suggest that this is Bergman’s intention is utter nonsense; At best these accusations are symptoms of the Bengali tendency towards extreme simplification and conspiracy theory, while at worst they are cynical distortions of the facts. Unlike many of those accusing David Bergman of helping Jamaat it has never been his aim to politically gain from these trials. I believe that it would be a grave mistake to view David Bergman from this point of view. If anything the opposite is true: Many of the interviews conducted for the film he made were subsequently set down in affidavit form and forwarded to the New Scotland Yard and finally to the Bangladesh Government to be used in possible trials against those accused of war-crimes. If David Bergman is holding the ICT to, what he considers to be recognised fair trial standards,  it is because of the simple fact that he is deeply invested in the whole process of bringing the war criminals to justice, in the truest sense of the word.

I believe that David Bergman’s contribution to Bangladesh becomes clear when we remember his movie “The War Crimes Files” not just the fact but the movie itself. It is a detached, emotionally restrained movie based on solid investigative journalism. Its purpose was not to rehash the same old emotions but something much more concrete: to uncover new facts that would lead to the trials of three British nationals who possibly committed war crimes in the then East Pakistan in 1971. It should be pointed out that at that point there were no such documentary film based on investigative journalism by anyone, Bangladeshi or otherwise.

Milan Kundera, in his book “The Book of Laughter and Forgetting,” explores the ways in which human beings continually forget the past — but in doing so he also discovers something deep about memory: that it is an active thing and that not only is the past not dead but in order to keep it alive we need to dive deep into it, we need to go out into the world searching for it. Repeating a thin litany of facts like mantra is not remembering or honouring the past — it is its exact opposite, it is forgetting the past. From this point of view David Bergman is an extremely important person for Bangladesh because he discovered some crucial and forgotten facts about Bangladesh in his film “The War Crime Files”. Thus, he is deeply tied to our memory of ourselves.

Take the example of the abduction of Mufazzal Haidar Chowdhury who was a leading Bengali intellectual and a professor at Dacca University during the Pakistani era. His family last saw him when he was taken away by Mueen Uddin and his gang on the eve of the liberation of Bangladesh in 1971. To his family’s knowledge that was the last anyone had seen Professor Chowdhury alive. It was believed that he was executed in the killing fields of Rayer Bazaar along with a score of other leading Bengali intellectuals and many other Bengalis picked up the shadowy death squad known as Al-Badr. But his body had never been found.  The documentary researched by David Bergman “The War Crime Files” contains an interview with Delawar Hossain, the only survivor of the Rayer Bazaar massacres, who while blindfolded had heard Mufazzal Haidar Chowdhury being beaten and tortured. Thus Delawar Hossain was able to confirm what had been feared by Professor Chowdhury’s family all along. I can only imagine what it must have been like for Professor Chowdhury’s family to come across this fact twenty five years after his death!


The most quoted line from Milan Kundera’s oeuvre is this: “The struggle of man against power is the struggle of memory of against forgetting.” However, it is a misquotation of sort. It is an unfortunate feature of our time that we conflate the utterances of characters of a novel with those of the novelist. Inspiring as it may sound the line that one should be quoting is the following:

“It is 1971 and Mirek says: The struggle of man against power is the struggle of memory against forgetting.”

Milan Kundera, “The Book of Laughter and Forgetting”

Mirek is the protagonist of the first chapter of Kundera’s great novel and he is seen fleeing from the secret police in communist occupied Bohemia (Kundera never uses the word Czechoslovakia). It is a cat and mouse game which Mirek knows all too well will ultimately be won by the secret police. While Mirek is uttering beautiful high sounding sentences like the one quoted above, he is on a last but deeply personal mission — he is taking a trip to retrieve from an ex-lover the gushing love letters that he wrote to her as a young man. Mirek, who is about to be arrested by the communists for being a counter-revolutionary and hence about to be made into a martyr, has a “tryst with destiny” (to borrow the famous phrase from Nehru), but he perceives the long-forgotten love affair with an ugly woman as a blot on the otherwise beautiful story of his life and in his vanity he wants to erase that memory. However, he knows that cannot happen as long as she has in her possession of the love letters that he wrote to her long ago. But that is not all: he is also erasing from his own memory the fact that he once actually loved this girl. The communist rulers and occupiers of Bohemia, not unlike the military dictatorships of Bangladesh, have been quietly airbrushing people out of history books. Kundera’s ironic message is that Mirek, who is seen as a champion for remembering those who have fallen on the wrong side of power and are being deleted from history books, is doing the same with his own life and his own memory.

This deeply held human tendency to rewrite our own history, to beautify it by editing out the untidy details, it the deep truth that Milan Kundera is after in the opening chapter of his famous (and mostly unread and misunderstood) novel. In the same novel Milan Kundera dares to suggest the same tendencies that drive human action are also at work in driving history.

I believe that our disquiet about David Bergman and the silence of many of the intellectuals in our country, and more so the self-declared human rights activists, regarding his trial by the ICT is related to this tendency: as long as David Bergman’s activism served the grand narrative that the Bengali nation had erected for itself we were happy to embrace him and celebrate him. But now that David Bergman is deconstructing (in a cool, logical and detached manner) the ICT proceedings and picking flaws with the trial process that he himself helped give birth to, he is no longer a person who serves that grand and beautiful narrative. And therefore he needs to be silenced and erased from memory. And it is only by erasing this blot can we revert back to our grand narrative about 1971.

It is possible to defend David Bergman’s work from the point of view of free speech. But we often forget why it is important to defend free speech — it is to safeguard speech and utterances that contribute to a complex understanding of the world and history. That free speech also ensures that a lot of people get away with a lot of nonsense and dishonest discourse is an unfortunate side-effect, but that shouldn’t divert us from the real argument for free speech. I have argued David Bergman’s dedication is to the cause of memory, in its totality, and that embraces all its contradiction and paradoxes. I believe that David Bergman’s work on the ICT represents an important part of our memory project: he reminds us constantly of that contradictory aspects of our national identity where we gloss over unpleasant and inconvenient facts that don’t fit the grand national narrative. He also hold us to a very high standard — his work is a reminder that we should keep the proceedings of the ICT to the highest standards and that only by doing so can we be honour the memory of the dead and not by hasty demands for revenge.

Despite his reservation about the ICT processes David Bergman is deeply respectful and appreciative of the significance of these trials to the families of the victims. He wrote after the verdict of death penalty in the case of Chowdhury Mueen Uddin:

“Whatever questions there may be about this trial process, it is important for people to recognise and understand that it does at least meet the need for justice felt by the families of those abducted and murdered forty two years ago.”


The narrative of 1971 and our efforts to come to terms with the awe-inspiring events of that year are indeed poignant, grand and beautiful, but history behoves us to understand it by taking into cognizance the totality of its facts. Otherwise we aren’t loyal to our history but only the version of it which serves one political quarter or another. Unfortunately that has been the history of our efforts to chronicle history. This abominable practice must end now. For example, we cannot ignore the revenge killings by Muktijoddhas of the Urdu-speaking minorities, then known as Biharis, if we are asking the world to be sympathetic to the massacres of the Bengalis and our efforts to bring the killers to justice. And as we are carrying out these ambitious trials to bring the collaborators of the Pakistani army to book we cannot look away as suppression of human rights of the Adibashi and Pahari population is being carried out in broad daylight in contravention to the CHT Peace Accord of 1997. How can we claim to be true to the spirit of 1971 when we allow attacks on the Hindu and Buddhist minorities to continue in independent Bangladesh?

My old professor and friend Jamal Nazrul Islam used to say, “You see, everything is related.” I often think of him and his commitment to truth however complex it might be. Perhaps because of that he was also a lonely figure in Bangladesh — someone who couldn’t be depended on to take sides for short term political gains. Yes, everything is related. If we are to remain faithful to the memory of those who died to give us our freedom, that is if we are to remain faithful to the memory of Bangladesh, and the living spirit of liberation, not only must we stand up for and defend inconvenient figures like David Bergman but we should recognize him for the positive contribution that he has and is making to our country.

Truth is an inconvenient thing but at the end of the day it is all we’ve got.

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