(Re)Writing history after Rwanda’s Genocide: A response to Peter Erlinder

JURIST Guest Columnist Charles Jalloh of the University of Pittsburgh School of Law responds to Peter Erlinder’s article Rwanda: Flawed Elections and the Politics of ‘Genocide Denial’, saying that certain of Erlinder’s criticisms of the ICTR are political or unfounded... As someone who has had the good fortune to work in the ICTR, I feel compelled to respond to his article for two main reasons. First, in order to help correct the misapprehension that might arise for those JURIST readers less familiar with the ICTR and Rwanda. Second, though I am no longer associated with the ICTR and obviously speak only for myself, as a lawyer and an academic, I find it hard to understand why Professor Erlinder would make such grave allegations without in any way attempting to adhere to the most basic principles of fairness and natural justice. In his article, written ostensibly to publicly rebut Rwandan Government charges that he is a “genocide denier,” Professor Erlinder unfortunately makes many sweeping claims about the 1994 Rwandan genocide, the politics of the Great Lakes region of Africa, alleged victors justice dispensed by the ICTR, alleged assassinations ordered by President Paul Kagame as leader of the Rwandan Patriotic Front and even Rwanda’s member status to the International Criminal Court (the country is not even a signatory to the Rome Statute which established the ICC, let alone a party). Much of what he presents as fact remains highly contested, or contestable, even among world-renowned historians of Rwanda. Without so much as acknowledging this reality, he claims that it is because of his “legal victory” as an ICTR defense counsel exposing ugly truths (in the course of defending his client) that Rwandan authorities recently sought to silence him with bogus charges of “genocide denial.” One cannot but be struck at the overall narrative that emerges: that of a Western lawyer soldiering bravely on to ensure justice for his (native) client in the savage backwoods of a forgotten part of Africa - if not the world. Even more strikingly, especially for an experienced defense counsel who is also an officer of the court, Professor Erlinder mischaracterizes Trial Chamber I’s factual and legal findings in the December 18, 2008 Judgment in the case of Prosecutor v. Théoneste Bagosora et al. [PDF], ICTR-98-41-T (“Military I”) to which he alluded. He states as follows: On December 18, 2008, after 7 years of receiving the best evidence the RPF could muster, three judges of the UN tribunal for Rwanda unanimously concluded that the story of the Rwanda genocide told by the victors....of a “long-planned conspiracy to commit a genocide of Tutsi civilians” by top military officers was not supported by the evidence. The three judges agreed that the documents and evidence I put into evidence were more credible and the UN prosecutor did not appeal. It was this legal victory, based on previously suppressed UN documents that got me prosecuted for “genocide denial” by the RPF victors in the Rwanda War. Among other things, it is important for readers to note the following in relation to the preceding assertion. First, the reference to the “best evidence the RPF could muster” is simply misleading. The RPF - by which he means the Rwandan Patriotic Front - is not the organization that presented evidence in the Military I trial. The case was brought by the Prosecutor of the ICTR (currently Hassan Bubacar Jallow). It is the ICTR Prosecutor, who is appointed by the UN Security Council upon nomination by the Secretary-General, who investigates and initiates prosecutions of persons responsible for genocide, crimes against humanity and war crimes committed in Rwanda as well as the serious international humanitarian law violations perpetrated by Rwandan citizens in neighboring states between January 1 and December 31, 1994. (See ICTR Statute, Art. 7). It is the ICTR Prosecutor, who is not legally permitted to seek or receive instructions from any government (whether Rwanda, the U.S., etc.), or for that matter any other source, that has the responsibility to decide whether there is sufficient basis to seek judicial approval of an indictment against a particular suspect. (See ICTR Statute, Art. 15). Consequently, though the ICTR Prosecutor, like all prosecutors in other international criminal courts, would obviously seek cooperation from relevant national authorities in order to carry out his mandate, it is simply inaccurate and unfair to make this broad assertion about the “best evidence the RPF could muster.” One would hope that Rwanda, like all other law-abiding UN Member States, would turn over every piece of relevant information it has relating to the heinous international crimes committed within its territory in 1994 to the ICTR Prosecutor. This flows from the duty it owes to cooperate with the ICTR pursuant to Article 28 of the ICTR Statute and by fiat of operation of the Chapter VII legal nature of the ICTR. To imply, without providing any evidence, that Kigali has done more than that and effectively usurped the functions of the ICTR Prosecutor amounts to a political argument. It is one that seems designed to impugn the credibility of a legal process that enjoys independent judicial oversight and principled commitment to the strict fair trial requirements of international human rights law. (See ICTR Statute, Art. 20). Secondly, though Professor Erlinder suggests otherwise, the three Trial Chamber I judges (Judges Erik Møse, presiding; Jai Ram Reddy, and Sergei Alekseevich Egorov) did not in the Military I Judgment rule, as he put it, that a “’long-planned conspiracy to commit a genocide of Tutsi civilians’ by top military officers in Rwanda was not supported by the evidence” (emphasis in original). In fact, Trial Chamber I reached exactly the opposite conclusion. For our purposes, two lines of judicial reasoning are particularly revealing. To begin with, at the outset of its deliberations on the Prosecution’s allegation that the four accused - one of whom was Professor Erlinder’s client - had conspired amongst themselves and with others to exterminate the Tutsi population of Rwanda, the Trial Chamber took pains to underscore that the question under consideration was “not whether there was a plan or conspiracy to commit genocide in Rwanda” (my emphasis). Rather, according to the judges, the narrow and ultimately controlling question before the Chamber was “whether the Prosecution has proven beyond reasonable doubt based on the evidence in this case that the four Accused committed the crime of conspiracy” to commit genocide. (See Military I Judgment, para. 2092). Ultimately, it is true that after carefully weighing the evidence presented during the trial, the Trial Chamber found that the Prosecution failed to discharge its burden of proving the various accused guilty on the conspiracy to commit genocide charge. In a nutshell, in the absence of smoking gun evidence - as is often the case in conspiracy cases - the judges noted that the mostly circumstantial evidence that the Prosecution had tendered was insufficient to establish that the only reasonable inference from the totality of the circumstances was that the accused military officers conspired to perpetrate the genocide before it started in Rwanda on April 7, 1994. Importantly, clearly having in mind the weightiness of its finding in the specific case before it but also for Rwanda’s contested history, the Trial Chamber went further and sought to lay the matter to rest once and for all. In this regard, the judges clarified that, given the evidence presented to support the conspiracy charge and the rest of the case against the accused, “the Chamber cannot exclude that there were in fact plans prior to 6 April [1994] to commit genocide in Rwanda” (my emphasis). In fact, the Prosecution had argued and the judges accepted that “there are certain indications in the evidence of a prior plan or conspiracy to perpetrate a genocide as well as other politically motivated killings in Rwanda, which could have been triggered upon the resumption of hostilities between the government and the RPF or following some other significant event.” (See Military I Judgment, para. 2107). Moreover, since the evidence in the case only implicated the accused in the prior planning of genocidal acts to “varying degrees,” the Prosecution had simply failed to convince them that the only reasonable inference to be drawn was that the accused conspired amongst themselves or with others to commit genocide. Nevertheless, and even more detrimental for Professor Erlinder’s argument, the judges reasoned that “it is even possible that some military or civilian authorities did intend these preparations as part of a plan to commit genocide.” (See Military I Judgment, paras. 2107; 2111). Thirdly, again unlike Professor Erlinder’s claim in his article, the Trial Chamber specifically examined the alternate explanations that Defense counsel advanced to counter the conspiracy charges but also the Rwandan genocide more generally. While it found some of the defense theories useful in providing limited context for certain events, the Chamber ultimately concluded that the bulk of the “alternative explanations had little relevance to the Prosecution’s specific allegations that there was a conspiracy” to commit genocide. More fatally, noting that its finding of insufficiency of evidence is inevitable given “exacting standards of proof and procedure” and the “specific evidence on the record before it,” the Chamber specifically noted the possibility remained that “[o]ther or newly discovered information, subsequent [ICTR] trials or history may demonstrate a conspiracy involving the Accused prior to 6 April to commit genocide.” (See Military I Judgment, paras. 1995; 2112). Furthermore, far from agreeing that the evidence that he proffered in the Military I case was more credible, as Professor Erlinder suggested in the above extract, Trial Chamber I forcefully rejected his theory that genocide did not in fact occur in Rwanda. It found the contention devoid of any merit. The judges observed that a review of the evidence amply showed that the perpetrators acted with genocidal intent. In addition, for those who might still harbor doubts, the Chamber noted the high number of individuals convicted by the ICTR for genocidal acts carried out throughout Rwanda as well the Appeals Chamber position that the Rwandan genocide in 1994 constitutes “a fact of common knowledge.” To the judges, all these factors taken together put the question of whether genocide occurred in Rwanda in 1994 beyond reasonable dispute. (See Military I Judgment, para. 1998). Similarly, Trial Chamber I forcefully rejected many of the same assertions made in Professor Erlinder’s article about alleged RPF killings of Hutus or the alleged improper imbalance in ICTR prosecutorial strategy in respect to alleged Tutsi crimes. In any event, as the judges rightly observed, international humanitarian law does not accept the tu quoque (they did it too) argument as a valid defense to individual criminal liability - as the ICTR Appeals Chamber has affirmed. Consequently, it was hard for the Chamber to discern how the defense submissions would exculpate these specific accused of responsibility for their own alleged crimes. (See Military I Judgment, para. 1999). While it is perhaps understandable that Professor Erlinder feels aggrieved by his recent arrest and incarceration in Rwanda, it is unfortunate that despite being an officer of the court in his capacity as defense counsel, he has taken it upon himself to seek to discredit the ICTR in the world of public opinion. To be sure, in the ICTR as well as other international criminal courts, defense lawyers are entitled to zealously and skillfully mount the best defense possible for their clients. Equally importantly, in the ICTR and in mature adversarial criminal justice systems like that of the United States, defense counsel - because of their role in a larger judicial process - must always strive to ensure that their actions and public statements do not give the appearance of bringing the administration of justice into serious disrepute. Unfortunately, despite numerous judicial rulings to the contrary, Professor Erlinder has continued to make largely political arguments about ICTR cases and obviously tense domestic politics in Rwanda. Yet, on numerous occasions, his views have been forcefully repudiated in reasoned decisions by the ICTR judges. Interestingly, as if to magically transform them into truths, the arguments lost in courtroom battles with prosecutors are recycled precisely in the public spaces where his views are most likely to go unchallenged. Charles C. Jalloh is an Assistant Professor of Law at the University of Pittsburgh School of Law. He was formerly an Associate Legal Officer in the ICTR and duty counsel to former Liberian President Charles Taylor at the Special Court for Sierra Leone. Ends