Category Archives: Rwanda

Defence counsel immunity at the ICTR: there in theory but harmless in practice?

As you may recall, Peter Erlinder, a defense counsel at the ICTR, made the headlines a few months back (in June) for having been arrested in Rwanda, along with Kagame political opponent Victoire Ingabire, on charges of genocide denial under Rwandan law. The detention did not go well, to say the least, Erlinder having alledgedly tried to commit suicide, and he was released some time later, with charges still pending. At the time, this sparked some interesting debates on the nature of laws prohibiting denial of genocide, and the political use of the such laws in Rwanda (including on this blog).

One key legal question that remained to be answered was the existence and extent of any immunity afforded to Erlinder as a defence counsel, given that, at the time it wasn’t entirely clear if the statements that were considered for the charges were made in the course of his work at the tribunal or not. Some weeks ago, on the 6th of October, the Appeals Chamber of the ICTR issued his decision on the immunity of Peter Erlinder, the defense counsel for one of the accused. I didn’t have time back then to comment on it, but still wanted to say a few words.

As to the existence of an immunity:

26. […] Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute.

This decision is based on an interpretation on the MOU between Rwanda and the ICTR, and an application of the Convention on the Privileges and Immunitities of the United Nations. In light of the latter document, Defense Counsel are to be considered experts and

23. […] While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission – not their administrative status with the Tribunal. 

This recognition that Defense lawyers should benefit of some form of immunity is welcome, as it would be incompatible with principles that they not benefit from equivalent protection as the Prosecutor.

Where the decision is more problematic is on the extent of the immunity. Indeed, they adopt a narrow reading of the immunity. Basically, the Court finds that because Erlinder is being essentially charged with statements done as an academic or a commentator (except for one of them), and not done directly in the context of the representation of his clients, he was not covered by the immunity. There is some logic to the statement… but it is extremely short-sighted in light of the rationale behind the immunity in the first place. Indeed, The ICTR holds that

30. […] Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

But how can Erlinder adequately prepare for the defense of his client if he is in jail, whatever the charges? Or if he cannot set foot in Rwanda for fear of being arrested? This completely defeats the purpose of immunity.

This result is due to the in fact suprisingly unsophisticated discussion on the concept of functional immunity in the decision, especially by not taking into account the temporal dimension. On this point, one can refer to the ICJ Arrest warrant case, where it went into some detail on the scope of official immunities. It found, among other things, that (§61):

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office, as well as in respect of acts committed during that period of office in a private capacity.

I know this judgment was strongly criticised in relation to the extent of immunities applying to crimes that fall under the jus cogens category, but for the purposes of our situation it seems to be a perfectly sensible solution. The immunity stands during the time a person is in “function”, both for personal and professional activities, in order to allow the good exercise of the function. Once the function seizes, the immunity from prosecution falls in relation to private acts, but remains in place for acts done in an official capacity. This would mean that Erlinder would be immune from prosecution altogether now, but could face charges for his “private” comments later, while still being protected for statements made in the course of his defense, thus continuing to protect the current functioning of the Tribunal, “which requires that Defence Counsel be free to advance arguments in their client’s case without fear of prosecution” (§29 of the decision).
It should be point out, as did the ICJ in the Arrest Warrant case (§60) that immunity does not mean impunity. It is mostly a temporary obstacle to prosecution, but does not remove individual responsibility once it is lifted.

It is intellectually puzzling that the Tribunal, having so clearly recognised the necessity for functional immunity, so dramatically fails to recognise the logical practical requirements to give it full effect. As a result, the Appeals Chamber has  proposed a wobbly, and I believe ultimately inefficient system of protection for defense counsel in international tribunals and at the end of day of protection of fair trial rights. This is not the first time, and therefore unsurprsing, but disappointing nonetheless.

When metaphors ruin the argument: Rwanda, Israel and negationism

Famous genocide scholar and Rwanda expert, Gerald Caplan, recently published an op-ed on the events surrounding the arrest of both Victoire Ingabire and Peter Erlinder in Rwanda on charges of “genocidal ideology”. The article highlights some interesting aspects of the situation, denouncing the lack of perspective of those who criticize the Rwandan government without taking into account the entire situation. However, the author falls into the same trap in the other direction and his article is problematic in many ways, despite its good intentions.

For one, he embarks in a haphazard comparison with holocaust denial in Israel. Here’s how that works:

An enigmatic, controversial woman returns to Israel after decades away and announces she’s running for Prime Minister.
She regrets the Holocaust, but after a tour of Yad Vashem, the country’s main memorial to the genocide of the Jews, she can’t help asking why no one bothers recalling all those good people that were killed by Jews resisting the Nazis. In fact she says not even sure whether more Germans or more Jews were murdered.
The Israeli authorities decide to take her seriously. She’s imprisoned, awaiting trial.
Soon her lawyer appears, from another country. He proves to be one of the world’s most notorious Holocaust deniers. The Law Society of Upper Canada (i.e. Ontario) writes to remind the Israeli government that UN protocols protect the right of a lawyer to perform his/her professional functions without hindrance. The responsibility of the Law Society, its website tells us, is to ensure that “the people of Ontario are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct”. And the people of the world, as well. Their letter fails to mention the lawyer’s views on the Holocaust.
The Israeli government unceremoniously throws the lawyer-denier out of the country. Despite UN protocols, the world cheers.

And the conclusion is that:

This story never happened in Israel. It is happening right now, with minor situational variations, in Rwanda. But the world’s reaction is entirely different. 

Gerald Caplan says there are “minor situational variations”… But, I fail to see how the differences are not “major”. The comparison with Israel does not really work. For the comparison to work, you would need a jew to actually fight and win a bloody civil war in Germany and gain power there, thus becoming the leader of a majority population that is considered to have in large numbers contributed to the genocide. Surely that makes the political reality and sociological evaluation far more complex. The comparison as it stands is certainly flashy, but is not really helpful. It looks like a variation of world-famous Godwin’s Law, according to which any debate will end up with a reference to Hitler or the Nazis. In this case the variation is that there will always be a holocaust reference to advance an argument, however irrelevant this is…

On the substance, I find it disturbing that an academic gives so little thought for the real question of the link between criminally prohibiting revisionist discourse and the freedom of expression. The arguments for free expression are strong and can’t so easily be brushed aside, even if one does need to take into account the fragile situation of a country, only some years after such a scar on its history. And it is not really an answer to say that such discourse is banned in other countries. Mere examples do not constitute an argument. The fact is that one can legitimately consider that there is always a risk when law has a say on the content of history, with Orwell’s 1984 as a extreme, but perfect example. Some at least lip service for this would be the minimum to expect for an honest intellectual assessment of the issue.

A second point is the totally one-sided view of the political situation. As I’ve had the opportunity of saying several times in this blog, the genocide totally obscures the reality of the situation in the great lakes. For one, it is well documented that the FPR was involved in large scale massacres in their conquest of the country in 1994. This doesn’t justify Ms. Ingabire gross exaggeration of the numbers, but one should at least have the right to say it. In the same way, in relation to Erlinder, I had sort of understood that the scope of the genocidal plan has been circumscribed by the ICTR itself, the intent not necessarily attributable to some parts of government and the military. As for today’s situation, maybe Ms. Ingabire is linked to extremist Hutu in Eastern Congo, as the author suggests, but it is also true that Kagame, with the support of Uganda, has been an integral part of the destabilisation in the region, for equally pragmatic reasons as taking over areas rich in minerals. There is a general leniency towards the Kagame regime that is most problematic, and on the long run, not necessarily helpful. It must be possible to condemn the genocide at the same time criticize the excesses of the regime and denounce the crimes committed by the FPR.

Finally, Gerald Caplan concludes with this remark:

But then, why would he listen to an outsider like me? I did nothing in 1994 to try to stop the genocide. Why would he listen to any of those who support Erlinder’s rights without even alluding to Erlinder’s inflammatory views? Why should the ban on genocide denial not apply to him? Who has earned the right to tell this Rwandan nation, abandoned and betrayed by the world a mere 16 years ago, how to deal with the fear of renewed genocide? Who would dare lecture Israel on the rights of Holocaust deniers?

 This seems to make sense on the face of it, but doesn’t really. For one, does past conduct mean that one can never say anything again? this means, given the history of all countries, that nobody is legitimate to express outrage about anything that happens in the present. Secondly, and more importantly, it is an ontological no brainer for anyone working in ICL, human rights and genocide prevention, and more generally for any outsider. Who are we ever to say anything about anything? who are we to even condemn a genocide? If the author really believes in what he says, he should consider a career change…

New book from French General on France and Rwanda in the never-ending "complicity debate"

Ever since I’ve started doing ICL, I’ve been in endless debates about France’s role in Rwanda and accusations of complicity of Genocide. I won’t go into the details of the debate, but would like to focus on one aspect of it that has come up time and again: the Turquoise UN operation in the summer of 1994 that was led by France. Indeed, the accusation is that France went in to protect the genocidaires and that they even committed atrocities themselves, such as doing some South-American style throwing people out of helicopters. In response to these accusations, the General in charge of the operation, Jean-Claude Lafourcade, just published a book on his experience in Rwanda. He makes some interesting points which I’d like to bring to the discussion.

1) Although it seems obvious, he reminds us that Turquoise in not a French military operation, it’s a UN Chapter VII operation, which was approved, if grudgingly, by the US. Also, he points out that the US refused to provide logistical support for transport of troops and that the French troops had to use old soviet planes provided by Ukraine. In addition, he finds some fault in the conduct of the UN, through Romeo Dallaire, which he considers to have not been given sufficient means to act immediately and for being partial towards Kagame.
2) He also reminds us that the Hutu interim government was recognized as the legitimate Rwandan government until mid-July by the UN, which is quite interesting when singling out France for its “support” for the Hutus. In relation to that he recalls that the last French troops left Rwanda in December 1993, so were not present when the genocide started.
3) The general presents in a very clear way the difficulties of intervening in an ongoing conflict. The idea was to be seen as impartial, despite the hostility of the FPR and also of the Rwandan army, once they had realized that the objective of Turquoise was not to maintain them in power.
4) specifically in relation to the genocidaires among the population and the refugees, he acknowledges the difficulties in deciding what to do. For one, the UN Mandate did not include the arrest of war criminals, and he regrets that this was not the case. Second of all, he asks the question of what he he should have done with the refugees, women and children, that were fleeing the advance of the FPR and the accounts of violence against the civilian population, in retaliation for the genocide? Should he have not helped them because there were genocidaires among them? He also points out that Turquoise did not promote the fleeing of the Hutus to the DRC. On the contrary, they tried to set up “safe zones” of humanitarian aid within Rwanda, but that it was the insistance of Kagame to refuse a cease fire that pushed the refugees over the border, justifying the later military operations in eastern Congo that continue, to this day, to destabilise the whole region.
5) In relation to the previous point, Lafourcade insists on the ambiguity of Kagame’s conduct. Officially, he criticized France for helping the genocidaires leave the country, while refusing a cease-fire that would have greatly stopped the flow of refugees. On this, he wonders why the FPR assault stopped at the end of April, only to start again, despite the certainty of victory, only when the Turquoise operation started.
6) Interestingly, he points out that it is Turquoise that decided to scramble the radio des mille collines.
7) Finally, the book concludes on some thoughts about the accusations of complicity of genocide. He wonders how come none of the 200 accredited journalists ever denounced alleged misconduct by French troups at the time. He calls for some court decision to be reached impartially on this (there is an ongoing case in France, but it has reached a stalemate for lack of evidence). On the position of the French authorities, he wishes that they would take a clear stand: either acknowledge French involvement in the Genocide if the evidence exists, or clearly denounce the accusations if they are not true. He regrets the actual ambiguity of the political discourse.

Of course, you wouldn’t expect a French general to say otherwise, but I think it’s interesting to have his account of what happened in the summer of 1994. Personally, I’ve never bought the complicity of genocide accusation specifically leveled at France. France made a choice in the late-eighties/early-nineties to promote change from the inside and support the Habyarimana regime (with some results, including the first multi-party elections, which, in fact allowed the extremists to be more present in government, as is often the case), whereas Belgian and the US chose the Tutsi rebels supported by Uganda (a rebel army that was trying to overthrow a government legally recognized by the UN until the month of July 1994…). It’s a foreign policy choice that can be challenged, but it hardly amounts to complicity of genocide. When you see the people leveling the accusations (an “independent” Rwandan commission among others…), it’s hard to give them much credit. Let’s have a court decision, in any country, or the ICJ, and settle this.
I perfectly agree with Lafourcade on the actual ambiguity of the French authorities. Either come out and clearly acknowledge wrongdoing, or clearly defend the honor of France, which is accused of the worst of crimes. The weak-kneed middle ground of Sarkozy’s visit to Rwanda earlier this year was in that respect very puzzling. I don’t understand what kind of guilt-trip can push the President of France to be shown “proof” of French involvement in a genocide at a museum, and not say a word. Once again, either France was involved, and let’s have a formal apology from State authorities, or France wasn’t, and it is France who should sever diplomatic ties with Rwanda as a point of principle. Anyway, Rwanda doesn’t really care about France in any case, with it’s anglophone and sinophile turn…

More generally, I remain baffled at the leeway given to Kagame. As I’ve had the opportunity of saying before, the genocide should not prevent us from critically assessing the conduct of Kagame, before and including during the 1994 civil war, and in the destabilization of the region since, with help from Museveni, another leader who incredibly remains in the good books of the international community, even being rewarded with the ICC review conference this month, despite his country being under investigation… but that’s another issue and I expect that I’ll post about it in coming weeks…

France and Rwanda Week: Widow Habyarimana arrested

This week, a French president visited Rwanda for the first time in something like 25 years to try and mend diplomatic relations between the two countries. The already cold interactions had taken a turn for the worst a few years ago when a French judge claimed that Tutsi rebels brought down the plane of Habyarimana, which sparks the beginning of the genocide. Kagame has resolutely tried to end francophone influence in Rwanda, leaving the francophonie and joining the commonwealth, and has continuously claimed that France was an accomplice in the Genocide, as a recent Rwandan report alleged.
Sarkozy didn’t go as far as saying that France was sorry, but he did accept that France had made “mistakes” and “misjudged” the situation. In a further show of goodwill, the widow of Juvenal Habyarimana, against whom Rwanda had issued an arrest warrant, was arrested in France today. How convenient…
I suppose that France, along with other members of the international community (whatever that means), could accept some responsibility in not preventing the genocide, although they would probably have received as much criticism for neo-colonialist meddling. What I’ve never understood is the international pandering to Kagame. He’s a warlord from the outside that wanted power and seized the opportunity of the genocide to reach his goal. Why do people who can accept the evil of 800 000 people being killed with machetes can’t accept the evil of a man rising on the graves of his fellow Tutsis to get into power. The “genocide approach” to Rwanda has completely taken politics out of our evaluation of Rwanda and there can be no criticism of Kagame, for fear of being seen to be insensitive with genocide victims. But the people in power are not the victims of the genocide. The people in power are the rebels from Uganda that didn’t experience the genocide.
Of course, Kagame can be seen as not “as worse” as other African leaders. But the difficulties of Rwanda are real, especially in terms of democratic deficit, and I’m not sure that recreating the conditions under which the Tutsi dominate the army and State institutions, in a country that is 84% Hutu, which created the resentment in the past, is a very good idea for the future. And that’s without even going into the influence Rwanda has in the destabilization of neighboring states, such as DRC. If there hadn’t been the genocide, i’m not sure that Kagame would be so immune to criticism. And in the same way as I find it completely beside the point when israelis (and jews) brandish the Shoah as an irrelevant moral shield against current criticism, I think the 1994 genocide cannot be an excuse for Kagame today. Recognizing the past is in no way the same as excusing the present.