Mission Impossible--Justice at the ICTR--by Tiphaine Dickson (translated from the French by CM/P)

[Here, finally, after nearly two years, is the English version of Maitre Tiphaine Dickson's shocking exposé of the duplicity and craven dependence on Western militarism of the International Criminal Tribunal for Rwanda in Arusha, Tanzania. This illegal ad hoc, the sicker twin to the moribund ICTY in The Hague, uses the totally bogus pretense of national reconciliation through international justice to further punish the victims and hide the real perpetrators of the very real genocide that took place in this small Central African country between 1 October 1990 and 4 July 1994. And the reign of terror that the RPF 'rebels' introduced when they invaded from Uganda--and ratcheted up when they assassinated the two Hutu Presidents, Habyarimana of Rwanda and Nytaryamira of Burundi, on 6 April 1994--has not let up enough even to properly bury the dead. In fact, according to Honoré Ngbanda Nzambo, the former Defense Minister of Zaire, in his book, Crimes Organisés En Afrique Centrale (Duboiris, Paris, 2005), Paul Kagame's Tutsi 'rebels' were, in the best Skull'n Bones tradition, stealing the bodies of the mostly Hutu victims of their 'anti-genocidaires' raids into Congo, to fill out the Rwandan mass graves that serve as memorials to this most sinister and cynical example of national auto-liquifactionism. Recently, it has become uncomfortably clear just how the US, through the servile unto groveling offices of the UN and the OAU, with hired stooges like General Romeo Dallaire, Jacques-Roger Booh-Booh, Kofi Annan and Ugandan president Yoweri Museveni, and a legion of private armies fronted by NGOs, have leveraged the re-colonization of Central Africa, from the Congo to the White Nile in Sudan, and intensified and expanded its terrifying militarization of this vast and enormously mineral-rich region in the name of a War on Terrorism and the interdiction of future genocides. The price for this latest sortie in the Great Humanitarian Globalization Crusades is between 5 and 9 million innocent souls slaughtered--and bleat goes on. So just as with Yugoslavia and CIS/Russia and Iraq and Palestine and Haiti and much of Latin America and Central Asia (jeezuz, it's the whole goddam world they're tearing the heart out of!), the West will continue to use whatever means necessary (including the wanton killing of its own citizens on its own soil) fully to exercise its sole surviving economic engines: the wasting forces of capitalist war production. It is no longer the goal of imperialism to capture, control and exploit lands and peoples. (It NEVER has been about the oil!) Today, in order to satiate the bitch, all must be wasted, destroyed, pulverized into great dust clouds like the concrete and other building materials from the demolished WTC or the bullet-riddled city of Falluja or the bombed-out Orthodox churches of Kosovo. And at the ICTR, the most prominent victim of this putrid wastage has been the Truth. --mc]

Mission Impossible :

The Defense at the International Criminal Tribunal for Rwanda


Defense lawyers have gotten used to being unpopular when they defend those accused of very serious crimes. The job of the defense, in all judicial systems, consists in making sure, even in the most explosive situations, that the rights of the defendant are fully and definitely exercised. When the state deploys its machinery of repression against an individual, the defense lawyer is the only rampart that protects the accused from injustice, vengeance and tyranny.

Defense lawyers have also gotten used to being vilified for keeping company with those they represent, or, even worse, for being associated with the crimes of which their clients are accused. In the context of political trials, in many parts of the world, they risk their reputations, their professional futures, and certain among them risk their lives. Generally, however, defense lawyers enjoy courteous and collegial treatment before these tribunals. They are officers of the court, and they protect all citizens from the potential or actual juridical aberations of the state. In some systems their participation is essential to the search for truth, and they are rewarded with a certain respect as well as with a casual prestige.

Yet even the most seasoned and jaded lawyer is staggered by the icy welcome reserved for defense counsel at the International Criminal Tribunal for Rwanda. All too often, the work of the defense is seen as an obstacle to the grand mission which the ICTR has set itself: Bringing ‘reconciliation’ to Rwanda.


“Reconciliation”?
What could ‘reconciliation’ mean in the mind of a jurist? How can a tribunal bring it about? Rather than a juridical objective, isn’t ‘reconciliation’ a political goal? Wasn’t the establishment of the ICTR the result of political wheeling and dealing within the UN Security Council, all necessitated by some resounding political, diplomatic and military screw-ups?

Yet the ICTR congratulates itself for having successfully made important break-throughs in the struggle against the ‘culture of impunity.’ It most often expresses its achievements in numbers: How many detainees, how many convictions, the first woman charged with rape, the first chief of state to have pleaded guilty to the charge of genocide . . .

No one seems interested in asking if the Tribunal’s achievement of criminal justice can decently be gauged by the number of convictions it hands down. Others might wonder as to the political usefulness of the whole endeavor. In fact, fighting has exploded throughout the Great Lakes region of Africa, while in Rwanda, democracy, human rights, the rule of law and all freedoms, save for the freedom to plunder and pillage, have disappeared like the morning mist.

But congratulations certainly must be inorder, for the ICTR now boasts of having received, in an affair without precedent in the history of juris prudence, the Human Rights award of the Freidrich Ebert-Stiftung Foundation(1) for having significantly promoted national reconciliation in Rwanda.(2) And what should one make of this Foundation, subject of recent revelations by former CIA agent Phillip Agee that its founder, Freidrich Ebert-Stiftung, was well known to US Intelligence for his engaged anti-Communism after the Second World War, and has been well used by The Agency for decades as a go-between with the old Fascist guard in Europe? According to Agee, the Foundation played a key role in the defeat of the ‘Carnation Revolution’ in Portugal in 1973. But today it bestows a prize for Human Rights on the ICTR, and the Tribunal’s representatives accept it without the slightest consideration that by so doing they might besmirch the appearance of impartiality essential to such a court, and applaud themselves for this ‘reconciliation’ to which they have contributed.

What kind of reconciliation are we talking about here when only one ethnic group is currently locked down, when the crimes of the victors are swept under the rug, against all protestations, and when the military junta currently in power in Kigali decides who the witnesses, the accused, and even who the Prosecutor will be?(3) What kind of reconciliation could blot out the attack of April 6, 1994, on the Rwandan presidential plane that killed two African presidents, the chief of staff of the Rwandan Armed Forces, several political personalities and the entire French crew?

The beginnings of the ICTR were shakey and criticized everywhere, except, curiously, by the Hutu community in exile which, already in 1994, was expressing loud and clear its support for the establishment of a Tribunal to shed light on all the crimes committed in Rwanda since the invasion of that country on October 1, 1990. As for the Rwanda of Paul Kagame: it was dead set against UN Security Council Resolution 955, notably because it did not permit the ICTR to hand down the death penalty, and because the UN would not seat the court in Kigali.

Position of the Problem
The ICTR has always been the object of criticism that ranges from the complaisant to the outright racist. The Western media have tried to out do one another in their repetitious charges that the Chief Prosecutor is ‘corrupt’ and the the Tribunal’s procedures are ‘slow’ and ‘confused’.

The reader might consider such generalizations as endemique of the functioning of African institutions.(4) But that would be a grave error. The ICTR is not an African institution, it’s a UN institution. The prosecutor’s office was directed by a South African man, a Canadian woman, and a Swiss woman.(5) And American influence on the Tribunal is undeniable.(6)

This is not to say that the ICTR doesn’t deserve this reproach, far from it, but it does serve to refocus the analysis and pose some fundamental questions. Is this Tribunal really suited to bring about justice, or is it merely an institution forged in the furnace of political opportunism? And despite the fact that the directors of the Tribunal never cease repeating that it is not an example of victors’ justice, one can not help noting a certain incapability—institutional or deliberate—to proceed with an objective examination of all the aspects of the Rwandan conflict, and not just those that serve the interests of the victors and their powerful sponsors. So the institution vows that such massacres as afflicted and forever scarred Rwanda should never again be allowed to take place. But can such a wish be realized without first arriving at the truth, the whole truth, and nothing but the truth?

One should straight-away pose and existential question: Was the ICTR created legally? The UN Charter does not give any authority to the Security Council to establish judicial bodies. The ICTY and the ICTR were established at the behest of Madeleine Albright, the same US representative who, in a grim sort of irony, pressured the Security Council to reduce the mission of the UN intervention force in Rwanda (UNAMIR) to a nearly symbolic presence, and this at the very height of the armed conflict and massacres.(7)

Even more ironically: the Security Council had the power (and the responsibility) to take action to restore the peace and security of Rwanda. It chose essentially not to do that. On the other hand, the Security Council has no power to establish a Tribunal, and yet that’s exactly what it did.(8) According to Resolution 955, the Tribunal must contribute to a ‘process of national reconciliation and the reestablishment and maintenance of the peace’. But by November 1994, it was just a little too late to be concerned with the reestablishment of peace: the Rwandan Patriotic Front (RPF) had won the war and set up a military state over the whole of the Rwandan territory. The only thing left to do was to judge the losers.

And as far as the struggle against impunity is concerned, a little more irony arises: The US refuses to recognize the jurisdiction of the Internation Criminal Court (Treaty of Rome). They seek to undermine the court’s authority by signing treaties of ‘mutual non-cooperation’ with other nations, the terms of which dictate that the signatories will never transfer one another's citizens to this permanent Tribunal. Such a treaty was signed by Rwanda, which has chosen to side against all those nations that have recognized the authority of the ICC.

An independent Tribunal?
Article 20 of the Statutes of the International Criminal Tribunal for Rwanda, which are contained in the annex of Security Council Resolution 955 that the UN used to create the ICTR, set forth the rights of the accused. This Article was inspired by, and transcribed almost word for word from, Article 14 of the Internation Pact on Civil and Political Rights. Judge Laïty Kama (then President of the ICTR) recognized this lineage in his speech before the UN Generaly Assembly on 10 December 1996.(9)

Article 14 of the International Covenant on Civil and Political Rights, adopted by the UN General Assembly, is the principal international instrument for the protection of individual rights. It garauntees the exercise of those fundamental rights recognized by the community of nations.

It garauntees every individual the right to a trial before an independent tribunal:
“All are equal before the tribunals and courts of justice. Every individual
has the right to have his case heard equitably and publicly by a
competent, independent and impartial tribunal established by law”;

Article 20 of the Statutes of the International Criminal Tribunal for Rwanda, however it may have been ‘inspired’ by the principled terms of the Covenant, left out the explicit and fundamental garauntees of the right to a trial before an independent, impartial, competent tribunal established by law.

The ICTR is not constrained by garauntees of impartiality and independence as set out in international and regional instruments for the protection of the rights of the individual or in the constitutions or legal codes of many countries.(10) The Security Council deliberately omitted according the accused their most fundamental right: the right to a trial before and independent and impartial tribunal established by law.

An institution can not pretend to be judicial without being independent. Independence is at the very heart of the idea of Justice. An institution that is not independent, or that cannot garauntee or affirm its independence and its impartiality, is not capable of exercising a judiciary function. It can pretend to do this and it can drape itself with all the cosmetic trappings of justice, but any tribunal that cannot garauntee to those it judges that it is independent, is, at the very essence of its judicial function, hollow.

The ICTR and the search for truth
Whoever calls for reconciliation, necessarily, calls for truth as a precondition. Early on in the course of the trials in Arusha, the first President of the Tribunal, Laïty Kama, let it be very clearly understood that he considered the search for truth to have been assigned to him as a judge by the UN. Thus, in the Akayesu case, the first trial begun before the ICTR, the trial chamber became immersed in a number of questions that bore no connection with charges against Mr. Akayesu, the former burgermaster of the tiny commune of Taba. During the long testimony of Alison Des Forges, a leading American activist for Human Rights Watch,(11) recognized as an expert-witness by the Chamber,(12) what took place was actually the first ‘collective prosecution’ in the history of the Tribunal. In effect, what was called into question was ‘the actual intentions’ of President Habyarimana, the election of President Kayibanda, or that of Colonel Lizinde, the student quotas, the speech of Leon Mugesera, or that of Colonel Bagosora, the Akazu, the UNAMIR, the events at Bugesera, but little if anything about Akayesu or what he’d been charged with.

Thus it appears that the ICTR agreed de facto and out of a need to understand the context, which, it would seem, is certainly the right of any investigator, to install an examining magistrate on the bench. It should be noted, however, that with the testimony of Des Forges in the Akayesu case, the judges explored only those elements favorable to the Prosecution. Unlike any other known examining magistrate, who would look equally into both sides of the case, the ICTR openly sided with the Prosecutor in his search for elements that would support his dominant argument.

The ICTR and the crime of aggression commited against Rwanda in 1990
We have seen how the Tribunal showed itself to be rather informal in the Akayesu case. The testimony of Alison Des Forges was considered precedential in its function as research into the truth, yet her testimony largely exceeded the bounds of the charges against the accused. This kind of investigation would not have been acceptable in a court of common law, where the rules as to the admissibility of evidence strictly limit the debate and do not permit the introduction of facts that are not pertinent to the charges or might be prejudicial to the accused.

The procedural suppleness of the ICTR was tested when the matter of the 1990 invasion of Rwanda from Uganda was examined.

First problem: the Tribunal’s jurisdiction did not extend to the time period of the Rwandan invasion by the RPF in October 1990. Formally, the Tribunal is competent to judge crimes under its jurisdiction committed between 1 January 1994 and 31 December 1994.(13) The judicial result of this political choice is to grant immunity from prosecution to Uganda and the Rwandan Patriotic Front.


The invasion of Rwanda is the pivotal event of that nation’s recent history. All consequent events quite obviously flow directly from it. This invasion is typical of the crime of aggression, described by the Nuremberg Tribunal as ‘the supreme war crime'.(14) But the ICTR has used its jurisprudence to fog-out the reality of this aggression, preferring, in its very first decision in the Akayesu case, to conclude that Rwanda was the object of a simple ‘attack’:

The 1st of October 1990, an attack was launched from Uganda by
the Rwandan Patriotic Front (RPF), whose predecessor, the Rwandan
Alliance for National Unity (‘RANU’) was created in 1979
by Tutsi exiles in Uganda.(15)

This passage illustrates very well that the reconciliatory function of the Tribunal, as it concerns this fact fundamental to the understanding of the Rwandan tragedy, is conspicuous in its absense. It was not a matter of a mere ‘attack’ but of an invasion, which is the only decent way to describe it. Also, the fact that this ‘attack’ was said to have come ‘out of Uganda’ is misleading. Elements of the Ugandan Army, led by a Ugandan Army general, with tanks, guns and ammunition from this same Ugandan military committed an aggression against Rwanda. Paul Kagame, who at the time was a high-ranking Ugandan Army officer, and a citizen of that country, and was director of military intelligence for the Ugandan Army, was at Fort Leavenworth, Kansas, when the invasion took place.

Why hide this reality? Because it will shed light on other aspects of the debate. Because the invasion of Rwanda, and then the shooting down of the presidents’ plane on 6 April 1994, invalidates the thesis so carefully prepared by Des Forges and others, that a genocide was planned by President Habyarimana, those close to him, certain members of his party, the MRND, the Rwandan Armed Forces, and by a sinister but indistinct media.


Biased Expertise: and if this was true?
Finally, the Federal Court of Canada rendered an important decision in the Mugesera case.(16) Unlike the ICTR, the Federal Court of Appeals recognized that Rwanda was the object of an armed aggression(17), and taking this reality into full account concluded that the words spoken by Dr Leon Mugesera in a political speech in 1992 did not constitute an incitation to commit murder or other crimes against humanity. This very speech was described by Madame Des Forges, in her testimony before the ICTR as well as in the Mugesera case in Canada, as being one of the elements that prepared the massacres of 1994.(18) However, Des Forges was severely criticized by the Canadian Court, which said it was astonished by her lack of rigor and by the troublesome gaps in her methodological observations, as much in her testimony as in the report of the International Commison of Inquiry (1993) of which she was one of the authors. The hearsay, the unverified facts, the truncated speech, sources which could not be named: these elements made the Canadian Judges brush aside such evidence as had been considered the gold standard by many so-called experts on Rwanda: that Leon Mugesera was close to President Habyarimana, that he was a member of the death squads, that his speech immediately provoked the killings.

This remarkable opinion by the Canadian Federal Court of Appeals, written with special regard to the dire manipulation of Dr Mugesera's speech, must make one wonder at the real value of these experts, certain of whom have been deposed in Arusha—notably Alison Des Forges—and who have written, sometimes a little quickly, sometimes quite badly, the history of Rwanda:

“(. . .) some of these conclusions, often erroneous, often hasty and
speculative, often dubious and fundamentally superficial, were repeated and
reiterated so many times without discernment or any other form of validation
as to engender a belief in a non-existant reality.(19)

While some of the defense lawyers at the ICTR happily consider this statement as it might apply to their clients, rarely would they permit themselves to believe, for more than an instant, that this institution that stands in judgment over the vanquished, the ICTR, is capable of what the highminded might consider a political and judicial blasphemy.(20)


Invisible assault
It is agreed by one and all, regardless of their slant on or interpretation of the events, that the spark that set off the explosion in Rwanda in 1994 was the shooting down of the plane that killed Presidents Habyarimana of Rwanda and Ntaryamira of Burundi, the Rwandan Army chief of staff, several personalities close to the presidents and the entire French crew.

Nearly ten years after the catastrophic attack of 6 April 1994, no criminal or civil charges have been brought, nor have any diplomatic sanctions been imposed. As if the airplane simply crashed, and thereafter the killings began. As crude as this statement may seem, it is exactly the thesis adopted by the Prosecutor at the ICTR in the charges brought against Georges Rutuganda, my client:

“The 6th of April 1994, an airplane carrying President Juvenal Habyarimana
of Rwanda, and President Cyprien Ntaryamira of Burundi crashed at the Kigali airport
killing all aboard. Following the deaths of the two presidents, the generalized political
and ethnic killings began in Kigali and then spread to other parts of Rwanda.”

The ICTR Prosecutor’s terminology did not demonstrate any great willingness of see into the heart of the matter: the plane ‘crashed’. Two presidents of two countries so torn by wars and coups d’état that they were quite likely once again to return to bloody war were ‘dead’— simple as that.

It is not inexact to state that the plane crashed. But it is hugely improbable that a judicial institution spawned by the UN Security Council should neglect to mention that before the plane crashed, it was blown out of the sky by two SAM-16 missiles.

The ICTR has all the judicial power and technology necessary to initiate and carry out a thorough investigation of this terrorist act that begat such nightmarish consequences. Yet its causes seem to be of astonishingly little interest to this organ of the UNSC, which was also responsible for the UNAMIR force in Kigali at the time of the attack.

The importance of this attack has not, at any rate, gotten past the defense. Already by the 7th of February 1997, this writer had pleaded, in Chamber I of the ICTR, that the Prosecution devulge all evidence obtained by its investigative services at the time of the attack on the presidential plane, or, in the case that no such investigation had yet taken place, that the Prosecution proceed immediately to initiate such an investigation. The response of the Associate Prosecutor was stupefying: “Our responsibility is not to investigate the crash of the plane; this is not our job. I am, therefore, in the most categoric fashion, going to set that question aside. And I can say emphatically that we have not carried out such an investigation, nor have we received any reports on such an investigation. Secondly, it is not our role, it is not our mission to carry out an investigation on the crash of an airplane carrying some presidents or vice-presidents. The question is not relevant to our authority.(21)

That was in February 1997. On the 1st of March 2000, the Canadian daily, National Post, revealed that investigations into the attack had been carried out by the Prosecution from 1996(22)—before the Prosecutor had denied it, categorically on his oath of office, during the trial of Georges Rutaganda—and that his investigations had been fruitful: two witnesses from Kagame’s elite unit, ‘The Network’, had been located and had confirmed that the attack was the work of the RPF, in collaboration with a foreign country.

Two documents had been obtained by a journalist from The Post: ‘The Hourrigan Report’, as well as an unsigned letter detailing the testimony of members of ‘The Network’. The first report, marked ‘Confidential’, was directed to the attention of the Office of Internal Investigations of the United Nations by a former investigator for the Prosecutor’s Office(23), and related the frustrations of its author, in particular the fact that he was forbidden to continue his investigation into the attack, despite his having made significant progress and that Prosecutor Arbour seemed thrilled by the new developments. But she brought the whole thing to a brutal halt. The investigation was closed just as it was approaching the truth about the causes of this attack.

Investigation suddenly stopped. And this despite new witnesses, inside witnesses, who would knock the pins out from under the whole thesis that had been in play until then, or at least that idea put forward by certain people to explain the attack: that the attack was commited by ‘Extremist Hutus’ inorder to liquidate Habyarimana as he returned from peace negotiations in Dar es Salaam, because he seemed ready to put in place the institutions set forth in the Arusha Accords, was too weak with regard to the Tutsis, and inorder to begin the genocide which had been programmed for some time.

And what if the abandoned investigation had revealed that the RPF had brought down the presidential plane? What would have been the political consequences? In the case of the Prosecution v Rutaganda, Filip Reyntjens, called by the prosecution as an expert-witness, conceded during his cross examination that:

“The Arusha Accords gave a great deal to the RPF. They could have
gained a lot more if they had carried on the war to its end, which was what
they finally did in fact, but they certainly could not have done this without
first having a good pretext.

Now, I am not at all suggesting that the RPF was looking for this pretext,
because this pretext could have been the shooting down of the presidential
plane and we do not know today who carried out this attack.”(24)
(emphasis added)

We do know today, in fact, that at the time professor Reyntjens gave this testimony, the Prosecutor held evidence that established the RPF’s responsibility for this attack. But in light of Reyntjens’ observation, some gargantuan problems arose.

In the first place, the identities of the perpetrators of this attack, unlike what the Associate Prosecutor contented in February 1997, is of great importance. And even more significant is that the Prosecution’s fundamental thesis regarding the events in Rwanda925)—that President Habyarimana, the MRND, the general staff of the Rwandan Armed Forces and other ‘Extremists Hutus’, did not negotiate for peace in good faith, because they did not want to share power with the RPF—collapses like a house of cards. And in place of this thesis, today, irrevocably implanted in hearts and minds, is a doubt: the RPF could have shot down the plane to create a pretext for continuing armed hostilities, and to take advantage of the predictable chaos that would follow on the shock of this assassination to take over the country militarily. And the UNAMIR were not actually there to ‘maintain the peace’—as fragile as it already was—for, from the moment of that attack, the peace just evaporated.

The killings, the massacres began. With consequences we all know of, and which continue their macabre unfolding into Congo. Five million, six million human lives taken since the invasion of Rwanda in 1990? Where is the Tribunal for the Congolese victims, for the Hutus slaughtered in the refugee camps in the ex-Zaire?

What would be the judicial consequences drawn from the fact the Prosecution’s investigators had discovered: that the presidential plane was brought down by the RPF?

Professor Reyntjens led us down a new path of considerations essential to understanding, not only the Rwandan catastrophe, but also the real reasons why a good faith investigation of this tragedy could be so badly botched:

“But there would also have been a judicial interest. Those who
shot down the plane knew very well what the consequences of this attack
would be, and in this case they would bear a legal responsibility—
and I’m not saying political, now, but legal—for the genocide.
Because they would have—knowing full well what the consequences
would be—they would have ignited the genocide.”(26)

Despite this evidence presented at his trial, the judgement condemning Georges Rutaganda made note only of a ‘plane crash’. The attack is invisible, its victims are demonised, and the fact of the attack serves merely as a point in time from which to mark the beginning of the genocide.

The defense lawyers are still waiting to get all the evidence from the Prosecutor’s investigation into this murderous assault, nearly seven years after the first formal request was filed. They will undoubtedly have to wait for the results of the investigation conducted by the French anti-terrorist judge, Jean-Louis Bruguière.


Fragile Edifice
The ad hoc Tribunals are very fragile constructs whose excessive politicization (as much in their conception as in their subsequent instrumentalization) has made them institutions of varying moral geometry. Some have criticized them for not arresting and condemning enough of the guilty, and for spending much too much money on the prodigious defense of those already ‘presumed guilty’. A few others, like me, are scandalized by the insupportable violations of fundamental rights commited by this pretentious adjudication in the name of a SINGLE international justice. It is even more unbearable to note that this injustice is being committed by a creation of the Security Council—the gendarme of the UN, that represents only a tiny, though all-powerful, minority of its member states. This injustice committed in the name of the gravity of the crimes, which one presumes, and what a presumption this is, will be seen better and better, is only the sad result of defamatory campaigns led by special interests which would never be given the right to argue before a real court issued from a real democratic institution. The repetition, ad nauseam, of the ‘aimable et convenable’(27) (‘kind and decent’) story of the ‘genocide of the Tutsis’—is this an exclusive franchise?—discredits and subverts any notion of justice. The fact that the whole truth is obscured does not honor the innocent victims of the massacres: men, women , children, and old folks, be they Tutsi, Hutu, Twa or Congolese. They all had the right to live in a country at peace. And their memory is profaned when Justice refuses to lift the viel on the causes of a war that ended up executing them, without due process of law.

Mission Impossible?
How then can one mount a defense in such a context ? Must one engage in an institutional direction, accept that the institution exists, and that those who find themselves imprisoned by it have the right, like everyone else, to be defended ? All the more so when the lawyer has convinced herself that her client is totally and objectively innocent, a conviction that many of her colleagues hold with regard to their own clients. The accused has the right to tell his side of the story, to fight against the half-truths and outright lies that are used against him. To turn the Tribunal into a political platform, as was done by Dreyfus, Mandela and Barghouti.

On the other hand, it must be asked to what extent the Defense contributes to legitimizing an institution so politicized as to be the antithesis of a judicial body. The ICTR can not function without the cooperation of the Kagame government, and it is an inevitable juridical consequence to point out that this Tribunal lacks the capacity to be independent. Yet, independence is at the very heart of the concept of justice. Without garauntees of independence, an institution that judges human beings charged with the worst crimes imaginable can not pretend to be a court of justice. Its function, its judgements, will be fatally influenced by the source of its lack of independence, whether institutional, political or by coercive forces coming from outside interests.

The Defense is sometimes practiced, as the saying goes, without regard to borders. But we must make very sure that it is not practiced without regard to conscience. And with a total understanding of the case.

Tiphaine Dickson
© 2003

(1) The Foundation was established in West Germany after WWII and was especially appreciated by the CIA for its fervent anti-Communism. In effect, the Foundation Freidrich Ebert-Stiftung was used by the CIA as a go-between for decades and was notably effective in the reversal of the ‘Carnation Revolution’ in Portugal. See ex-CIA agent Philip Agee’s “Terrorism and Civil Society”:
The Instruments of US Policy in Cuba", http://www.counterpunch.org/agee08092003.html:
"From early on the CIA channeled money through these foundations for non-government organizations and groups in Germany. Then in the 1960's the foundations began supporting fraternal political parties and other organizations abroad, and they channeled CIA money for these purposes as well. By the 1980's the two foundations had programs going in some 60 countries and were spending about $150 million per year. And what was most interesting, they operated in near-total secrecy.
One operation of the Friedrich Ebert Stiftung shows how effective they could be. In 1974, when the fifty-year-old fascist regime was overthrown in Portugal, a NATO member, communists and left-wing military officers took charge of the government. At that time the Portuguese social democrats, known as the Socialist Party, could hardly have numbered enough for a poker game, and they all lived in Paris and had no following in Portugal. Thanks to at least $10 million from the Ebert Stiftung plus funds from the CIA, the social democrats came back to Portugal, built a party overnight, saw it mushroom, and within a few years the Socialist Party became the governing party of Portugal. The left was relegated to the sidelines in disarray."

(2) "Le TPIR recevra le 20 mai un prix de la Frederick Ebert Siftung" (sic), Fondation Hirondelle, le 16 mai 2003.

(3) Carla Del Ponte, Prosecutor for both ad hoc UN Tribunals since 1999, was forced to resign her post at the ICTR at the insistant pressuring of the Rwandan government, and because of support for her removal from the American and British governments. "Carla Del Ponte craint que Kigali n'exploite sa mise a l'écart du TPIR", Agence France-Presse, 9 août 2003.

(4) This Western sensibility is strongly influenced by the colonialist discourse present in popular literature and imagery. Voir l'excellente analyse de See the excellent analysis of Robin Philpot in his Ça ne s'est pas passé comme ça à Kigali, Montréal, Les Intouchables, 2003.

(5) From 1994 to 1996, the prosecution was directed by South African Richard Goldstone. He was replaced by Canadian Louise Arbour, whose mandate was terminated in the autumn of 1999. The Swiss Carla Del Ponte took over the position until her recent forced departure. A Gambian, Hassan Bubacar Jallow, now occupies the post of Prosecutor at the ICTR, though the job was split up at the demand of Kigali and Washington, see above.

(6) The Deputy Prosecutor who tried the first cases at the ICTR is today the US Ambassador for War Crimes. This is a US State Dept. post: Office of War Crimes Issues, http://www.state.gov/s/wci/
Dernièrement, le gouvernement rwandais annulait une rencontre prévue avec des responsables du Tribunal en raison de l'indisponibilité de l'ambassadeur Recently, the Rwandan government canceled a planned meeting of Tribunal officials because of the unavailability of ambassador Pierre-Richard Prosper: "La rencontre TPIR-Rwanda, prévue à Arusha, n'a pas eu lieu", Fondation Hirondelle, 10 décembre 2002.

(7) Madame Albright acknowledges today that she regrets the US opposition, and her own, to an intervention force for Rwanda. "Albright Admits US Errors on Genocide", Kevin Kelly, The East African (Nairobi) 22 septembre 2003.

(8) It is interesting to note that the current Secretray General of the UN, Koffi Annan, was the UN’s director of Peacekeeping Operations in 1994.

(9) “. . . Article 14 of the International Covenant on Civil and Political Rights, was the inspiration for Article 20 of the Statutes”, ibid.

(10) Canada: The Canadian Charter of Rights and Liberties, article 11(d); US: 5th Amendement of the Bill of Rights in the US Constitution; France: Constitution, Title VIII; Switzerland: LFOJ, art.21; UK: Act of Settlement. See also the Lusaka Statement on Government Under the Law (Commonwealth, 1992): “We express our joint belief in the central place enjoyed by an independent, impartial and informed judiciary in realisation of just, honest, open and accountable government”, in Fragile Bastion-Judicial Independence in the Nineties and Beyond, Judicial Commission of New South Wales, Sydney, 1997. And many nations are signatory to international and regional instruments which include garauntees of independence and impartiality.

(11) The American NGO which took part in The International Commission Investigating Violations of Individual Rights in Rwanda since the beginning of the war in 1990, Final Report, FIDH, Paris, March 1993. Its report, which came out in March 1993, had some important repercussions: see infra. Human Rights Watch and La Fédération internationale des ligues des droits de l’Homme (FIDH) directed a project on the events of 1994, Aucun témoin ne doit survivre (No witness to tell the story), Paris, Éditions Karthala,1999.

(12) Unlike many national jurisdictions, the ICTR did not examin Mme Des Forges before recognizeing her expertise. It was enough that the Prosecutor affirmed that she was an expert. Procureur v Akayesu, ICTR 96-4-T, transcripts of 11 février 1997.

(13) Statutes of the International Criminal Tribunal for Rwanda, Article 1.

(14) "To initiate a war of aggression is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Justice Birkett, from Judgment of the International Military Tribunal, l'affaire Goering et al.

(15) Procureur c. Akayesu, ICTR 96-4-T, Jugement, 2 Septembre, 1998, par. 93.

(16) Mugesera c. Ministre de la Citoyenneté et de l'Immigration, 2003 CAF 325, available at http://decisions.fct-cf.gc.ca/cf/2003/2003caf325.html

(17) Ibid., par. 240

(18) In the cases of Akayesu, Nahimana et al, et Bagosora et al.

(19) Mugesera, supra, para. 256.

(20) At this writing, the Canadian Ministry of Citizenship and Immigration had not appealed the decision, but were it to do so, the arguments would be heard before the Supreme Court of Canada, the court of last resort, on which sits the Honorable Louise Arbour, who was the Prosecutor at the ICTR at the time that Alison Des Forges testified on the subject of Dr Mugesera. Des Forges brought up Leon Mugesera at the behest of the Prosecutor, even though, in the case in question—Akayesu—the Mugesera speech was of no pertinence to the debate.

(21) Procureur c. Rutaganda, ICTR 96-3-T, transcriptions du 7 février 1997, pp. 44-5.

(22)"Explosive Leak on Rwanda Genocide", Steven Edwards, National Post, 1er mars 2000, page 1.

(23) Michael Hourrigan, Austraian lawyer, employed by the Prosecution of the ICTR in the first years of operation of the Tribunal. See "Hourrigan contre l’ONU", Thierry Cruvillier, Diplomatie judiciaire, 9 mai 2000, http://www.diplomatiejudiciaire.com/Tpir/Parquet29.htm

(24) Procureur c. Rutaganda, ICTR 96-3-T, transcriptions du 24 novembre 1997, pages 19-20.

(25) This is identical to Mme Des Forges’ thesis.

(26) Procureur c. Rutaganda, ICTR 96-3-T, Transcriptions du 24 novembre 1997, pp. 113-114.

(27) Robin Philpot, Ça ne s'est pas passé comme ça à Kigali, op. cit., borrowing a phrase from Gustave Flaubert.