International Justice or “Victor’s Impunity”? © - by Peter Erlinder

International Justice or “Victor’s Impunity”? © - by Peter Erlinder

[Here is some more material from Professor Peter Erlinder (The Rwanda Genocide Cover-up), defense counsel to former Rwandan Army Major Aloys Ntabakuze in the Military 1 case, laying out some of the growing body of evidence as to just what happened in Rwanda nearly 20 years ago, and, more importantly, just why the public has, by nurturing its bad faith on a diet of craven sentimentality, been able to put off dealing with the reality that this information establishes beyond any reasonable doubt: that Rwanda, like Yugoslavia, Iraq, Afghanistan, and, currently, Zimbabwe (just to name a few), was the victim of an unprovoked military aggression (1 October 1990 by forces of the Ugandan NRA), and a subsequent occupation and reign of terror, eventuating in a murderous regime change, carried out by foreign forces, financed, armed, trained and led by agents of Western imperialism (i.e., the US, UK, EU and Israel); and that the culpability for these foreign aggressions was reversed, while the righteously legal national defenses mounted by their victims were made out to be the worst sorts of war crimes, crimes against humanity, even unto genocide, through the machinations of just such legally unfounded and politically dependent ad hoc tribunals as are up and running today in Arusha (ICTR for Rwanda) and The Hague (ICTY for Yugoslavia)—with another one being talked-up for Robert Mugabe and Zimbabwe.

It has been most interesting to see the trajectory of Prof Erlinder experience, which has brought him from a vague acceptance of this new, so-called International Justice, to its skewering with the neologism 'Victor's Impunity' (© Prof. Peter Erlinder). How he gradually shredded the dominant (dys)lexicon, neutralizing, then negating, the politically charged terms like 'aggressor' and 'victim' that were the first prisoners of these highly marketed globalization wars--and many of these epiphanies came as a result of testimony Erlinder, himself, had drawn from witnesses, like the morally handicapped Canadian UN General Roméo Dallaire, during the Military 1 trial; how terms like 'neutrality', misused to describe UN Peacekeepers, or 'tribal, ethnic or civil wars', misused to describe the results of these initial aggressions, were revealed to be just more weapons of mass distraction in the militarists' marketing campaigns to waste public consciousness; and how all these revelations, finally, brought him to fear, more even than physical threats on his life, being called a 'negationist' or 'holocaust denier' by the very feudal-nostalgic war criminals who have furnished the budding industry in genocide memorials with their gruesome relics: all this makes Peter Erlinder's work essential reading for those who would clear their heads of manipulative detritus more clearly to know the real History of our times—and, thereby, better know themselves and more effectively protect their families from the sort of poisoning that has rendered most of the world public prisoners of a most maudlin ignorance. —mc]

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KIGALI ARRESTS OF RPF SUSPECTS IN 1994 PRIEST KILLINGS
CONFIRMS LONG-STANDING ICTR-OTP COVER-UP

ARUSHA, TZ -- June 12, 2008

The Bureau of ADAD welcomes the first public admission by ICTR Prosecutor Jallow in his press conference today, that the premise upon which all prosecutions at the ICTR have been based thus far . . . is a falsehood.

By announcing the arrest of 4 members of the Rwandan military for the 1994 assassination of 13 leaders of the Catholic Church in Kabgayi, including the Archbishop of Rwanda, the Prosecutor has confirmed that members of the former government or military are NOT responsible for all crimes committed in Rwanda in 1994, as the OTP had previously maintained. The arrests in Kigali, however, do not change the fact that not one member of the current government or military has ever been prosecuted at the ICTR.

This change in position by the ICTR Prosecutor was necessary because of recent public revelations by former ICTR Prosecutors Carla Del Ponte and Australian barrister Michael Hourigan, that the OTP has had the evidence to prosecute members of the current government, including President Kagame, since as early as 1997 and has refused to do so. Carla Del Ponte was removed from her ICTR office in 2003 when she refused to follow US/UK orders to NOT prosecute members of the current government, and Hourigan resigned after then-Chief Prosecutor Louise Arbour ordered him to drop any investigation related to Kagame or the RPF.

Also within the past several months, Spanish Investigative Judge Fernando Andreu issued a 180-page indictment of 40 high ranking members of the current government for genocide, crimes against humanity and war crimes committed in 1994 and after. The indictment includes references to President Kagame. In late 2006, French Judge Jean-Louis Bruguière also issued indictments for the assassins of Rwandan President Juvénal Habyarimana and requested that the ICTR prosecute President Kagame for the crime. INTERPOL warrants remain outstanding.

Last week a paper was presented at the University of Paris (attached) which details original UN and U.S. government documents from 1994 which confirm that in May 1994 UNCHR and the Red Cross reported "20-30 bodies headless bodies every 30 minutes" in the Akagera River then controlled by the RPF. And, U.S. Undersecretary of State George Moose reported in September 1994 that the RPF was killing "10,000 civilians a month" in one small part of Rwanda. The evidence from original UN files that Kagame is responsible for the assassination of Habyarimana and that he refused to agree to a ceasefire that would have stopped the killings . . . because of his military strategy to seize power, has been put into the ICTR record by the defence.

UN files also confirm that, UN experts reported as early as 2003 that Kagame's army had invaded eastern Congo in 1996 and continues to control large portions of Congo in a conflict that has cost millions of lives, and continues to this day.

ADAD calls on the Judges of the ICTR, and the members of the Security Council, to reject the now admitted manipulation of the ICTR to create impunity, described by Carla Del Ponte as resulting from political support from the current Rwandan government for its powerful patrons in the United States and United Kingdom.

(references to documents/evidence in paper attached)
*******************************

LA JUSTICE INTERNATIONAL AUJOURD’HUI
30-31 MAI 2008
ADIF/AIJD
(Association pour la défense du droit international humanitaire, France)
(Association internationale des juristes démocrates, et Droit solidarité)

Cité Universitaire de Paris, Maison Internationale
___________________

The International Criminal Tribunal for Rwanda:
A Model for International Justice or Juridical “Victor’s Impunity”? © Prof. Peter Erlinder[1]


It is unfair that politics undermines our work. I find it wounding to see that we have managed to ridicule the principles of international justice…..[2]
Former ICTR Prosecutor Carla Del Ponte 2003


Introduction

The United Nations International Criminal Tribunal for Rwanda (UN-ICTR) was established at the end of 1994 with the Security Council mandate to prosecute all international crimes committed in Rwanda during the previous year. Unlike the Nuremberg and Tokyo Tribunals, organized by the “victors” of WW-II, the ICTR and the Tribunal for the former Yugoslavia (ICTY) were created by the UN Security Council, albeit under controversial circumstances[3]. As a European tribunal, the ICTY has been closely studied and criticized, and I will not attempt to offer my own critique in this setting.

However, the ICTR has been much less rigorously reported in the western press, and much less regularly observed and studied by legal scholars. The result is that this important United Nations undertaking is almost unknown to the world and, as a result, has been relatively easy to ignore or mischaracterize. My purpose is to raise awareness of the apparent political manipulations that have turned the Rwanda Tribunal into a great-power foreign policy tool, rather than an example from which international justice might flow. The article references documents in evidence at the ICTR, but not widely reported, as well as recent revelations by former ICTR Chief Prosecutor Carla Del Ponte, who was removed from her ICTR post in 2003, after she publicly suggested that both parties to the Rwanda War should be held accountable for crimes that that have come to be known as the 1994 “Rwanda Genocide.”

During the thirteen years of its existence, the ICTR Office of the Prosecutor (OTP) has come under great criticism for moving ever-so-slowly in bringing its cases to trial, which can be explained as either: a lack of competence; or the result of particularly difficult investigative or evidentiary challenges.[4] The credentials of former ICTY-ICTR prosecutors: Hon. Richard Goldstone; Hon. Louise Arbour; and, Ms. Del Ponte (who was retained as Chief Prosecutor at the ICTY, even after she had been removed from her ICTR post in the fall of 2003), suggest that competence of leadership has not been the main impediment. However, the now well-established evidence of crimes committed by the victors in the Rwanda War; the suppression, by Ms. Arbour in 1997, of investigation of crimes committed by the victors;[5] and the removal of Ms. Del Ponte in 2003 for suggesting that both side had committed crimes in Rwanda[6] raise the possibility that the ICTR-OTP has had the difficult challenge of re-writing history, to justify prosecuting only one side in the Rwanda War.

Unlike the ICTY, which has brought at least some charges against each of the protagonists (with the notable exception of NATO forces), only members of the former Rwandan government and military have been among the accused at the ICTR. Now the ICTR is scheduled to end its trials in 2008[7] and appeals in 2010, and Ms. Del Ponte’s replacement has proposed to transfer UN-ICTR detainees to the Rwandan government, despite Del Ponte’s conclusions and the fact that numerous members of the Rwandan government have been indicted for war crimes and genocide by the judiciaries of two European countries, one of which is a member of the Security Council.[8]

Given the mandate of the ICTR (i.e., to prosecute all crimes committed in Rwanda), this is quite an extra-ordinary set of circumstances. Either the “Rwanda war” is the only war in history in which only one of the contestants committed crimes during the war (a proposition about which the previously un-published documents, referenced herein, raise some doubt)….OR the UN-ICTR has been manipulated for political reasons to create impunity for a favored war-time contestant and has actually become a “victor’s” tribunal, like those that were established after WW-II.[9]

Because of access to original UN and U.S. government documents that the ICTR defense has put into the record, another narrative is developing that confirms the observation of former Chief ICTR Prosecutor Carla Del Ponte, just prior to her removal from that post after suggesting prosecution of the RPA:
It is unfair that politics undermines our work….[10]


ICTR Defence Evidence:
The Real Narrative of the Rwanda War

There is no doubt that extreme violence swept Rwanda during the last 3 months of the 4-year war in Rwanda.[11] That war pitted the French/Kinyarwanda-speaking Rwandan Government and armed forces of Rwanda (FAR), supported by France and other African governments, against an invading force made up largely of English/Swahili-speaking Rwandan ex-patriots, members of the Ugandan National Resistance Army who broke-off to invade Rwanda, known as the Rwandan Patriotic Army (RPA). Between 20-25% of the Ugandan army that deposed Milton Obote in favor of Yoweri Museveni in 1986 had been composed of Rwandans whose parents were members of the Rwandan ruling elite that left Rwanda more than 20 years earlier. At independence from Belgium in the early 1960’s, members of the “Tutsi” monarchy and ruling class had left Rwanda when the monarchy was replaced with a republic dominated by the peasant “Hutus,” who made up more than 85% of the population, then and now.[12]

Evidence at the ICTR shows between 1990 and 1994 the RPA military actions in Rwanda were supported by a steady stream of materiel and weapons delivered from the territory of Uganda,[13] but had little support from either “Hutu” or “Tutsi” members of the Rwandan population. In September 1994, Amnesty International reported that it had received numerous reports of atrocities committed in areas controlled by the RPA, but was unable to confirm many of these reports because the RPA prevented access by journalists or human rights observers to the areas it controlled, without RPA accompaniment.[14]

By February 1993, the RPA demonstrated its military superiority in an assault that nearly captured Kigali.[15] The presence of French and Belgian military advisors in Kigali deterred the final assault, and a March 1993 ceasefire was followed by negotiations and a power-sharing agreement, called the Arusha Accords.[16] This political compromise would have resulted in the political wing of the RPA, the Rwandan Patriotic Front (RPF), taking a minority role in a “unity” government.[17]

On April 6, 1994, the final terms of the “transitional government” agreement that had been approved by all Rwandan political parties (with the exception of the RPF), by all surrounding countries, as well as by the U.S., France, Belgium and the papal nuncio, consigned the RPF political arm of the invading forces (RPA) to a minority role, even though it exceeded the number of their identifiable supporters in the population.[18] Thus, the RPA/F was faced with having to accept minority political status, though it had demonstrated military dominance and the ability to seize complete power by force.

The recently-arrived U.S. Ambassador to Rwanda, David Rawson, expected that the final compromise would be announced by Habyarimana on his return from a conference in Dar es Salam regarding the problems facing Burundi after the assassination of the first Burundian “Hutu” President in October 1993. (Following the assassination of President Ndadaye by elements of the exclusively “Tutsi” Burundian army and massive killing of “Hutu” civilians in Burundi, some 350,000 refugees entering Rwanda in late 1993, which further destabilized Rwanda ).[19] President Habyarimana of Rwanda and the new President of neighboring Burundi, Cyprien Ntariyamira, as well as key members of the Rwandan military leadership and the French flight crew, were killed when missiles hit the President’s plane on its approach to the Kigali Airport.

The 4-year Rwanda war resumed after the apparent assassination, and the RPF's refusal to abide by a continuation of the ceasefire, which UN documents reveal was repeatedly requested by the FAR defending forces, beginning as early as the night of April 6 and repeated almost weekly thereafter. The FAR claimed they lacked the military capacity to defend against the RPA, and to put down the civilian massacres, an assessment which UN and U.S. government documents support.[20] While this 100-day period is usually called the “Rwandan genocide”, recently revealed UN and U.S. government documents now make clear that this killing, designated a “genocide”, did not end with the change of governments in Kigali in July 1994, and is, in all likelihood, the responsibility of both sides in the war.[21]

This horrible, violent reaction to the death of the Rwandan President was not completely unexpected. Massive killings of civilians had followed, only six-months earlier (late October 1993), the assassination of the previous Burundian President by Burundi’s “Tutsi” military, and even U.S. Ambassador Robert Flaten testified at the ICTR that he personally warned both Kagame and Habyarimana in November 1993 that “Burundi-like” massacres would be the result if either side resumed the war.[22] And the U.S. State Department chief for Africa, Prudence Bushnell, stated on the night of April 6 (April 7 in Washington, DC) that mass killings were likely in both Rwanda and Burundi as a reaction to the assassination of the two presidents, without any consideration of pre-planned ethnic violence.[23] This sort of mass violence had already happened several times in Burundi before October 1993, during the previous two decades when Rwanda had been relatively peaceful.[24] Civilian-on-civilian killing was a predicted consequence of the resumption of the Rwanda war (i.e., war crimes or crimes against humanity), not because of planned killing of civilians for ethnic reasons (i.e., genocide).

Former Ambassador Flaten also testified that he had no credible information that there was a plan afoot, by the Habyarimana government or military, or any other group in the country, to carry out a planned “genocide.” Further, he testified that in a small country like Rwanda, particularly one with a multi-party government, it was extremely unlikely that such a plan could be kept secret. He testified he had received no reports from the Belgian, French or U.S. intelligence agencies that such a plan was even being discussed during his term in Rwanda (1990-1993), or that of his replacement Ambassador Rawson.

The Rwandan Patriotic Army (RPA), led by former Ugandan Military-Intelligence Chief, Paul Kagame, seized the eastern 1/3 of Rwanda by April 20[25] in well-orchestrated “blitzkrieg” fashion and took control of the capital Kigali by mid-July. But recently revealed document show that, as early as May 17, 1994, the UNHCR had detailed reports of massive killing of civilians by the RPA in the southeastern part of Rwanda that they had controlled for nearly a month:[26]

The presence of the RPF at the border and across the border . . . raises critical security concerns . . . The following are excerpts from a UNHCR-Ngara protection report . . . made on 14 and 15 May:

• At Rusomo commune, sector Kigarama, the RPF . . . called for a “peace meeting.” Those who did not participate voluntarily were forced to the meeting. At the school people were tied together, three by three by three – women and children – and stabbed. The bodies were put on trucks and thrown into the Kagera River.

• At . . . sectors Nyamugari, Gisenyi, Nyarubuje, the RPF comes at 05h00 . . . the villagers are caught and taken away to the river by trucks. No one has returned. Refugees in the area have seen people being tied together and thrown into the river. It seems guns are only used if somebody tries to escape.

• At . . . sector Muzaza, . . . the RPF launched several attacks on the village and its population. On 13.05, 40 RPF soldiers . . . surrounded the village. Villagers were gathered in houses, which were burned down. An eye witness saw 20 people burned this way. 8 villagers were thrown into a latrine and the latrine was filled with soil. Asked by UNCHR field officer, refugees said that RPF did not care whether the victims were Hutu or Tutsi villagers . . .

• On 15.05 . . . a group of Rwandan people were observed running away from 20-35 soldiers . . . some jumped into the river. One person drowned. The soldiers rounded up a group of civilians and marched them off . . .

• An IRC staff person wrote to their office: “Things are getting very bad at the border here . . . Each day there are more and more bodies in the river and most of them without their heads; the count is between 20 to 30 each 30 minutes…

• We believe that only Tanzania . . . the only border open to refugees – Zaire has been closed to them; . . . Burundi is undesirable because of RPF presence and instability . . . RPF atrocities on the other side of the river will force people to flee . . .

• We will be overwhelmed here unless someone takes action to stop the bloodshed, the atrocities, the massacres, in Rwanda.

In August 1994, UNHCR received the only independent human rights report from any area controlled by the RPF/RPA before, during or after the war.[27] The so-called “Gersony Report”[28] of massive RPA killings, given to Kofi Annan and other UN figures, was confirmed by publicly available Human Rights Watch[29] and Amnesty International[30] reports from September/October 1994. A memorandum from the Undersecretary of State for Africa, George F. Moose, to “the Secretary” (U.S. Secretary of State under President Clinton, Warren Christopher) reports a briefing on September 17, 1994:

A UNCHR investigative team that spent July and August in Rwanda (i.e., Gersony - author) has reported systematic human rights abuses by the GOR (i.e., RPF) forces – including systematic killings – in the south and southeast of the country. The team has concluded that the GOR is aware of these reprisals against Hutu civilians and may have sanctioned them . . . .

On the basis of interviews with refugees/individuals, the UNHCR team concluded that a pattern of killing had emerged. The RPA convened meetings of displaced persons to discuss peace and security. Once the displaced persons were assembled, RPA soldiers moved in and killed them. In addition to these massacres, the RPA engaged in house to house sweeps and hunted down individuals hiding in camps. Victims were usually killed with hoes, axes, machetes and with fire. Although males 18-40 were at highest risk, the young and elderly were not spared. The team estimated that the RPA and their Tutsi civilian surrogates had killed 10,000 or more Hutu civilians per month, with the RPA accounting for 95% of the killing. (emphasis added)

The UNHCR team speculated that the purpose of the killing was a campaign of ethnic cleansing intended to clear areas in the south of Rwanda for Tutsi habitation. The killings also served to reduce the population of Hutu males and discouraged refugees from returning to claim their land.[31]

The former Foreign Minister of Rwanda, Jean Marie Ndagiyimana, who had been a diplomat in the former government and had only been at his new post for a few months in October 1994, has testified at the ICTR that UN documents showing that he was approached at his office in Kigali in October 1994 by Kofi Annan and USAID chief for Africa, Brian Atwood, in an effort to cover-up the killings by the RPA, were correct. And, as a member of the former government who had only recently taken his post in the “unity-government” testified, he was not willing to take part in a cover-up of RPA crimes. He resigned his post and went into exile in November 1994.[32]

RPA/F crimes against civilian supporters of the former government were also fully documented by the United Nations in early 1995, and not seriously disputed, when the RPA was openly killing civilians by the thousands in the Kibeho Refugee camp.[33] In 1996, the RPA and Ugandan armies invaded the eastern Congo triggering a war that continues today. More than 6 million deaths and the largest UN peace-keeping operation in history have been the result of these invasions and occupation, using surrogate forces.[34]

By early 1997, the chief investigator for the ICTR, Michael Hourigan, a former prosecutor from Australia, along with a team consisting of former FBI Agent James Lyons and Maj. Amadou Deme (the former Chief Military Intelligence Officer for UNAMIR General Roméo Dallaire in Kigali in 1994) concluded that the two Presidents had been assassinated by an RPA execution team under the command of Paul Kagame. This was reported to Chief Prosecutor Louise Arbour, but, according to the testimony of QC Hourigan, after initially being apparently pleased with this information, Ms. Arbour ordered him to stop his investigations and confiscated his investigative reports and notes. Hourigan and all his team also resigned from the ICTR in 1997.[35]

The undeniable fact that only members of the former government and military have been prosecuted is completely consistent with the well-established narrative[36] that even I had come to accept, before I began an independent investigation, in my role as ICTR Defence Counsel in 2003. However, the hard evidence in the ICTR record (only some of which I have alluded to here) requires a serious reappraisal . . . in the interest of international justice, the integrity of the ICTR and the fate of the detainees that the ICTR Prosecutor has proposed be transferred to their former enemies in battle.

Recently issued European indictments have confirmed that the Kagame-RPA/F government committed massive, uncharged criminal acts during 1994. Among these are indictments issued by Judge Jean-Louis Bruguière of France in November 2006. Judge Bruguière is also reported to have met personally with then-UN Secretary General Kofi Annan to urge the ICTR prosecution of Rwandan President Kagame for the assassination of his predecessor, President Juvénal Habyarimana, in as much as France grants immunity to sitting heads of state.[37]

The Bruguiere indictment was followed in February 8, 20008 by Judge Abreu of Spain, who issued a 180-page indictment charging Kagame and 40 members of his government, including the Military-Attache to the Rwandan Embassy in Washington, DC,[38] but INTERPOL international arrest warrants have yet to be executed in the US, or elsewhere. The European indictments confirm the evidence in the record at the ICTR that the current US/UK-supported Rwandan government is actually responsible for many of the crimes that have been charged to the former government and military.

It is becoming increasingly apparent that, for the past 13-years, Rwandan President Kagame and the RPA/F have benefited from juridically-created impunity at the ICTR, and that the UN-ICTR detainees, all members of the vanquished former government, are facing transfer by the United Nations into the custody of indicted war criminals.[39] It is as though the United Nations were being used as a “bounty hunter” for the current government of Rwanda . . . and its super-power patrons.[40] It seems plain, in retrospect, that the ICTR has been used to create impunity for the “victors” in the Rwandan war . . . but it was not until September 2007 that it became clear why this creation of impunity has occurred.

My first hint that the “standard narrative” was not the real “Rwanda-genocide” story (or at least the full story) came in the summer of 2003 from the then-ICTR Prosecutor Carla Del Ponte, herself. The second hint came from U.S. Secretary of State Colin Powell, and, later, the third came from UN Secretary General Kofi Annan. ICTR Prosecutor Carla Del Ponte’s removal from office in the fall of 2003, at the insistence of the Kagame government, the United States, the United Kingdom and, eventually, Secretary General Kofi Annan, confirmed that closer scrutiny of the entire ICTR process was necessary.


Prosecutor Carla Del Ponte Acknowledges Crimes of RPF/A:
Another Narrative Begins to Emerge in Mid-2003

In July 2003, ICTR Chief Prosecutor and Swiss Judge Carla Del Ponte (who was also Chief Prosecutor for the ex-Yugoslavia Tribunal) announced that her office had enough evidence to prosecute members of the Kagame Government that had taken power in Rwanda in July 1994![41] This announcement was clearly at odds with the standard narrative, and, if this was the reality of Rwanda, why were members of the former Rwandan Government the only ones in the dock?

This was the first time in nearly nine years that the ICTR Office of the Prosecutor (OTP) had publicly admitted that there was at least shared responsibility for the tragedy in Rwanda, and it was the first time I had even considered such an idea. But, it gave hope that the UN Tribunal might be on the cusp of fulfilling its mandate by fairly assigning blame where it should properly be placed. And, not surprisingly, within a day of the Del Ponte press conference, the Rwandan Government in Kigali was calling for the resignation of the ICTR Chief Prosecutor.

But the mystery deepened a few days later when U.S. Secretary of State Colin Powell took time out from the on-going search for “Weapons of Mass Destruction” in Iraq to echo Kagame’s call for Del Ponte to be removed from office. And, a few weeks later, UN Secretary General Kofi Annan also called for Del Ponte to be removed from her Rwanda post. For an interested observer, the question was, why on earth would the highest levels of the United States government, or the United Nations, for that matter, object to the United Nations ICTR Prosecutor in Arusha, Tanzania, announcing nothing more than her intention to carry out her mandate to prosecute all crimes committed in Rwandan some nine years earlier? History had become a current story.


Sham Elections in Rwanda: August 2003

Just weeks after Colin Powell’s call for Del Ponte to be removed from office in late July 2003, the Rwandan Government held its first presidential election in nine years of rule by the RPF transitional government, in which Paul Kagame controlled the Rwandan military and was either Vice-President or President. Readily available stories in the popular press reported that Kagame had become President in 2000 when RPF party members in Rwanda’s un-elected “transitional” parliament voted 81-5 to replace former President Pasteur Bizimungu with Kagame. Bizimungu, who had been President since July 1994, had abruptly resigned and left the country after finding himself accused of misdeeds when he objected to other members of the government who were possible opponents of Kagame being unfairly attacked and driven into exile. The western press had reported that when Bizimungu returned Rwanda in 2002 to contest the 2003 popular presidential election, he was imprisoned for establishing the opposition PDR party, which Kagame loyalists in the transitional appointed-Parliament deemed illegally “divisionist.”[42]

By August 2003, it was also a matter of public record that the only credible opponent to Kagame was former Prime Minister Faustin Twagiramungu, who had also returned from exile to contest the election. He had been the main figure in the opposition to the Habyarimana government as the leader of the MDR party, before the RPF seized power, and was Kagame’s first RPF Prime Minister in the “Unity Government.” But he, too, had resigned and gone into exile in 1995, after refusing to be associated with the well-documented killing, earlier that year, of thousands of unarmed civilian war-displaced Hutus at the Kebeho Refugee Camp by RPA troops, and other such RPF crimes. Twagiramungu announced for the Presidency from abroad in early 2003, but, by April 2003, his MDR party had also been declared illegally “divisionist” (like Bizimungu’s PDR) and banned.[43]

When Twagiramungu returned to Rwanda in June 2003 to run as an independent, the elections were moved up from November to August 2003, making organization and campaigning even more difficult for the challenger. And, two days before the elections, his 12 provincial campaign representatives were arrested for “planning to coordinate acts of violence in all the provinces”, and his campaign managers resigned citing fear for their lives.[44]

This was far from a speculative concern, as a growing list of former members of the Kagame government, in addition to Twagiramungu and Bizimungu, had found it necessary to leave the country. Twagirimungu’s successor as Prime Minister, Celestine Rwigyema, had gone into exile in 2000, as had former Speaker of the National Assembly Joseph Sibarenzi. Other former members of the “Unity Government” had been assassinated, including former Interior Minister Seth Sendashonga (in Nairobi) and Assiel Kabrera, an advisor to Sibarenzi and Bizimungu (in Kigali). The European Union Observer Mission, which had been in Rwanda for nearly a month before the August election, reported large-scale ballot fraud, vote-buying and a “climate of intimidation”, which characterized the entire process, owing in no small part to the absence of opposition parties and the arrest of supporters of Twagiramungu.[45]

Kagame was elected with nearly 95% of the vote, and under the new constitution, which was also approved in 2003, Kagame was elected to the first of two 7-year terms. By the fall of 2003, it was clear that Kagame had been virtually guaranteed remaining in power for a minimum of 23 years . . . a term longer by several years than assassinated President Juvenal Habyarimana, whose term came to an end with the downing of his plane on April 6, 1994. This outcome was particularly ironic because, as early as 1990, one of the stated aims of the RPF had been to establish a “multi-party” system, to bring an end to the “Habyarimana dictatorship.”[46]

By the 10th Anniversary of the “Rwandan genocide” on April 7, 2004, The Economist reported that the Kagame government was the most repressive on the African Continent,[47] its apparent post-war economic improvement notwithstanding.


The 1996-2003 Rwandan/Uganda Rape of the Eastern Congo:
UN Experts Report October 2003

At nearly the same time, in the fall of 2003, that Carla Del Ponte was appealing for her job at the UN Security Council, another UN body issued a report that shed an entirely new light on what seemed to be an increasingly curious Rwanda story. The UN Panel of Experts Report on the Illegal Exploitation of the Democratic Republic of the Congo was issued on October 20, 2003,[48] after several years of study and preliminary reports, which detailed the invasion of the Congo by Ugandan and Rwandan troops in 1996, and again in 1998. The Report described in damning terms how these foreign armies had stripped the eastern Congo’s resources and permanently altered the economy by directing Congo’s wealth, including gold, diamonds and coltan (a mineral essential to cell phone manufacture), east toward Kigali and Kampala. The capitals of Rwanda and Uganda became major trading centers for valuable mineral resources that did not originate in either country, but which existed in great abundance in the eastern Congo.[49]

These invasions of eastern Congo resulted in the deaths of millions of Congolese as a consequence of war and the destruction of the fragile Congolese infrastructure. The Rwanda/Uganda initiated wars in eastern Congo had drawn the militaries of surrounding nations into what has been called the first “World War” of Africa. By 2003, the Congo wars had been going on for 7 years and had killed more than 3 million Congolese, all as a consequence of the joint Rwandan/Ugandan invasions and resulting occupation by foreign troops, or their surrogate local forces.[50]

All of these events occurred within the first few months after I accepted the appointment at the ICTR and only raised more questions that I could not answer at the time. But, once, as part of my new assignment, I began to pay closer attention to contemporaneous events in Central Africa, it was relatively easy to see that the Kagame/RPF government and its RPA army was not behaving in the way they had been portrayed in the conventional Rwanda-genocide narrative. Far from being the “democratic liberators,” the role to which they had been assigned in the dramatic events in Rwanda, 1994, since coming to power, Kagame’s RPF/RPA had been seizing power and resources in Rwanda and the surrounding area, and at a terrible human cost.


U.S./U.K. Pressure UN Security Counsel:
Del Ponte Removed “With Immediate Effect” in October 2003

With all of this on the news and in the public domain, I watched in stunned wonder as, in October 2003, only a few months after her Arusha press conference, Judge Del Ponte was removed from her position as ICTR Prosecutor by the UN Security Council, at the urging of the United States and the United Kingdom. She was replaced by Hassan Bubacar Jallow, who publicly pledged not to follow-up on the prosecutorial initiative announced by his predecessor to go after both sides in the Rwanda War. Del Ponte was permitted to retain her post at the ICTY, indicating her removal was not a question of competence, but the publicly asserted reasons were “efficiency” questions that, on their face, were murky at best. Despite her protestations, the duties of the Chief Prosecutor’s office were split, and Mr. Jallow was appointed to replace her at the ICTR. Jallow publicly pledged not to prosecute members of the Kagame Government and all settled back to “normal” at the ICTR.[51]

But what could Carla Del Ponte possibly have been referring to when she announced that members of Kagame’s Government had also committed crimes? And, if Carla del Ponte had the evidence to prosecute members of the Kagame Government in 2003, and the public record revealed manipulated one-party “elections” in Rwanda, and massive civilian killings in the Congo by the Rwandan military; why had no RPF prosecutions been launched before 2003? Why did Colin Powell take time out from laying waste to Iraq to call for her removal from office, when her announcement only meant that she was carrying out the mandate of the Security Council to prosecute all crimes committed in Rwanda in 1994?[52]

Was it possible that the highest levels of the United States government and its closest ally were not aware of the years of massacres and economic piracy being committed by Kagame’s RPA and its surrogates in Congo, as reported by the UN experts and numerous journalists following events in there? Was it possible that U.S. sources were unaware of the manipulation of the “elections” documented by the EU and the obvious elimination of all political opposition to Kagame within Rwanda, which had left him with military control and virtually dictatorial powers? Hadn’t US President George Bush been informed this had all been going on before he met with Paul Kagame at his ranch in Texas during Kagame’s state visit to the US in March 2003?[53]

By the end of 2003, all recent information emerging at a public level pointed to either: highly unlikely ignorance on the part of the United States and the United Kingdom (Kagame’s major patrons since both governments had been the first to immediately recognize the RPF government in July 1994) or publicly unacknowledged support and acceptance of the Kagame government by the United States and the United Kingdom, so well-established that it would be unaffected by hard evidence of massive crimes committed by that government both inside and outside Rwanda’s borders after the RPF seized power in July 1994. However, hard evidence that this apparent quid pro quo existed, and that it has had a continuing impact on shaping the story of the “Rwanda genocide,” and the ICTR, itself, was not confirmed until September 2007, first by Carla Del Ponte’s long-time press aide Florence Hartmann, and in February 2008 by Judge Del Ponte, herself.


The 2007-08 Del Ponte/Hartmann Revelations:
U.S.-U.K./Rwanda Political Quid Pro Quo Distorts ICTR Mandate

Some of these questions were answered on September 10 of 2007 when the former long-serving press-aide to Ms. Del Ponte, Florence Hartmann, published Paix et Chatiment, that described Del Ponte’s years at the Yugoslavia and Rwanda Tribunals.[54] Hartmann had direct access to Judge Del Ponte both before and after 2003, and, after the publication of Hartmann’s book, Del Ponte published her own book in February 2008, War Criminals and Me,[55] that recounts some of the same incidents and supports Hartmann’s account. Carla del Ponte has not disavowed any of the accounts of events described in the Hartmann book.[56] A small number of pages are devoted to the Rwanda Tribunal, and specifically the events of the summer of 2003, when Del Ponte made her public announcement about evidence sufficient to prosecute the Kagame Government for 1994 war crimes, and the events that followed which resulted in Del Ponte's being removed from office.[57]

The Hartmann book explains that, shortly after her announcement, Prosecutor Del Ponte was summoned to the U.S. State Department in Washington, D.C., to meet with Bush Administration “War-Crimes Ambassador,” Pierre Prosper, who was no stranger to the ICTR, or the Rwanda disaster. He had formerly been a member of her office at the ICTR, and had actually prosecuted one of the first cases that convicted a leader of the losing side.[58]

According to the book, Prosper flatly ordered Del Ponte to drop all notions of prosecuting the Kagame Government. He explained that the United States had “strategic interests” in Central Africa that included a close working relationship with the Kagame Regime.[59] He specifically mentioned cooperation by Rwanda in excluding U.S. persons from the jurisdiction of the International Criminal Court, and military cooperation of long-standing that her prosecutions would disrupt. The book cites dates, places, names and details that only Ms. Del Ponte could have known, and which she has not disavowed in her own account.

The book also explains the behind-the-scenes machinations of the U.S. and U.K. delegations to the Security Council that eventually resulted in her removal from office in the fall of 2003. So, the Hartmann book solves at least one part of the “mystery.” Because of U.S./U.K. relations with the Kagame Government, according to Ms. Del Ponte, ICTR prosecutors who even consider prosecuting the side that won the Rwanda War will not have long U.N. careers. Presumably this would apply to other ICTR personnel as well, and it is difficult to imagine that the ICTR Judges have not learned this lesson, too.


Military-I Trial Evidence Confirms the ICTR “Cover-up” of RPA/F Crimes

Plainly stated, the Hartmann and Del Ponte books describe the entire ICTR enterprise as a “cover-up” of what really happened in Rwanda in 1994, but do they explain how the “cover-up” began, or how long it has been going on? During 5-years of research at the ICTR, I managed to see all of the UN-Rwanda files that had been generated at UN headquarters by Kofi Annan’s Department of Peace Keeping Operations (DPKO) between 1993-1995, and those swept up from the UNAMIR (United Nations Mission in Rwanda) in Kigali when it closed down. Many of these documents are in the evidentiary record of the Military-I trial,[60] and the rest are on the web in a researchable database, so that other researchers can verify my conclusions.[61]

I also benefited from the domestic U.S. Freedom of Information Act (FOIA) requests for contemporaneous, unclassified reports about Rwanda, generated by the State Department, Pentagon and CIA. The “disclosure” rules of the ICTR made most of this possible, and are an unintended consequence of establishing Tribunals that purport to embody even a small level of due process. The Tribunal rules have permitted the accumulation of documents that the “vanquished” never get an opportunity to examine under “normal” circumstances . . . and may never become public, under other circumstances. In addition to these contemporaneous documents, the Tribunal also made it possible to interview witnesses scattered all over the world, and to include their sworn testimony in the ICTR record. However, not all of the most important testimony is publicly known because of the “closed session” procedures which have the effect of shielding important testimony from public view.

Carla Del Ponte was not the first ICTR Prosecutor to conclude that members of the Kagame Regime should be prosecuted. As briefly mentioned earlier, in 1997, Michael Hourigan recommended that Col. Bagosora and Col. Nsengiumva of the losing side be brought to book and, based on his investigations, both Bagosora and Nsengiyumva where indicted and are defendants in the Military-I trial, in which my client is also a defendant. But he also recommended that President Kagame, himself, be arrested for the assassination of the Rwandan and Burundian presidents that triggered the 90-days of violence.


The ICTR-OTP Had Evidence to Prosecute Paul Kagame
for Habyarimana’s Assassination as Early as 1997

As mentioned above, according to the sworn affidavit of UN investigator Michael Hourigan, shortly after he presented his report recommending the prosecution of Paul Kagame, Chief Prosecutor Louise Arbour ordered him to drop the Kagame investigation, to forget it had ever happened, and not retain any of his notes.[62] Instead, he resigned in 1997, as did the other members of his team shortly thereafter, and his affidavit and copies of his notes are now in the evidentiary record in the Ntabakuze Defence in the Military-I case at the ICTR, as is the affidavit of former UNAMIR Chief Military Intelligence Officer, Major Amadou Deme, describing the evidence he had turned up in 1994-95 pointing to Kagame having ordered the assassinations.[63]

The Del Ponte book and the sworn statements of barrister Hourigan raise serious questions about the real “mission” of the ICTR. Former ICTY/ICTR Prosecutor Ms. Arbour has never said publicly whether Canada’s allies (the same super-powers that threatened and removed Ms. Del Ponte) had anything to do with her orders to “bury” the prosecution of Kagame. But every ICTR prosecutor, and Judge, must have gotten the message that keeping all of the blame for the Rwanda tragedy firmly focused on the losing side is the only way to hold onto one’s job![64] The unfortunate fact seems to be that the ICTR is in the business of creating impunity for war crimes, not exposing and prosecuting the real perpetrators.

The witnesses testifying at the ICTR in the Military-I case have included former members of the Kagame army like Lt Joshua Ruzibiza, who was accompanied by a bodyguard provided by the European government that has granted him asylum.[65] His 2006 book, The Secret History of Rwanda, describes in great detail how he, and a select assassination team, launched the missiles that brought down the Presidents’ plane on the night of April 6, 1994, on orders from then-Gen. Paul Kagame.[66] Other witnesses, also former officers in the Kagame army, testified how they secretly transported the missiles from Uganda to Kagame’s own house in Mulindi for safe-storage, and then to Kigali for the launch.

Several former RPA/F officers testified to the detailed planning and the accumulation of weapons and ammunition from Uganda that took place between August 1993 and April 1994. They also testified that the order for the final assault to seize power was given by Kagame on the night of April 6, shortly after he confirmed that former President Habyarimana had died in the attack on his plane. All of the commanders of the military units had been called into RPF headquarters by Kagame a few days before and were given their orders to begin the war during the Africa Cup soccer match on the night of April 6.[67]

For more than 10-years, every effort to raise the assassination of President Habyarimana as the “triggering” event of the civilian massacres in Rwanda was declared “irrelevant” by ICTR judges. Whether they were influenced directly or indirectly by the same pressures that were brought to bear on Carla Del Ponte, Michael Hourigan, and, possibly, Louise Arbour, is impossible to know, but it is undeniable that before the Ntabakuze Defence in the Military-I case accomplished it, the assassination of the President was never discussed at the ICTR. And, even today, the Chief Prosecutor who replaced Ms. Del Ponte is on record as publicly stating that the assassination is “not within the jurisdiction” of the United Nations International Criminal Tribunal for Rwanda.[68]

But, despite the obstacles, not only was evidence of the Habyarimana assassination put into the Military-I trial record, but more than a thousand United Nations and U.S. Government documents that had only been in the prosecutors files have been put before the ICTR judges.[69] One of these is a May 17, 1994, UNHCR report describing huge massacres of civilians taking place in southeastern Rwanda, an area long-controlled by the invading Kagame army.[70]

And numerous references to the “Gersony Report” that had been prepared for the United National High Commissioner for Refugees (UNHCR) based on the only “independent” human rights investigation in Rwanda since the Kagame Government seized power in mid-July 1994, which detailed assassination-style killings of “at least 30,000 civilians” in southeastern Rwanda by the Kagame RPF army, and the UN documents reveal the fire-storm that erupted in its wake.[71] And, perhaps even more significantly, the September 17, 1994, memo from George Moose to the U.S. Secretary of State makes clear that the upper levels of the Clinton Administration knew that the RPA/F was “killing 10,000 a month” in a small area of southeastern Rwanda.[72]

But the U.N. documents, now in the record at the ICTR, reveal more.


The ICTR “Rwanda-Genocide Cover-up” of RPF Crimes

In the fall of 1994, both Kofi Annan and the chief representative of USAID in Africa (a U.S. State Department agency), Brian Atwood, traveled to Kigali shortly after Gersony’s findings became known. The U.N documents report a meeting with the new Foreign Minister of the Kagame Government, Jean Marie Ndagijimana, who had been elevated to his position only months before from the Ambassadorship to France in the previous government. He was one of the French-speaking “Hutus” brought into the new government in a show of unity. The Foreign Minister also testified at the ICTR and confirmed all of the details reported in the UN documents.[73]

According to the U.N. documents, the Foreign Minister was told that disclosure of Gersony’s findings “would be embarrassing to the Rwandan Government and to the U.N.” Why the crimes of the RPF should be embarrassing to the United Nations and United States is subject to speculation, but both the UN documents and the former Foreign Minister confirm that the attempt to cover-up the RPF/A crimes by the United Nations and United States goes back at least to August 1994.[74]

Now the “cover-up” is almost complete. Within a few months the ICTR will shut down, and current ICTR Prosecutor Jallow will be conveniently unable to carry out the Security Council mandate to prosecute the crimes described in ICTR evidence and the international warrants issued by France and Spain.[75] The Rwandan Government, with U.S. and U.K. support, is actively campaigning to have ALL of the ICTR cases transferred to Rwanda.

No one at the ICTY would dare to suggest transferring Croats to Serbia, or Serbs to Bosnia, when the ICTY shuts down, but the ICTR has always been treated “differently.”[76] The Kagame regime also wants all ICTR records and all UN prisoners to be transferred to Kigali. And, although UN records for 1994-95 list no more than 500 major criminal suspects immediately after the war, more than 100,000 suspects have been held in Rwandan prisons for more than a decade, and the Kagame government has recently issued over 40,000 new warrants for both Hutu and Tutsi “genocidaires” in the Rwandan diaspora. After the 2003 election and numerous accusations of “negationism” and “divisionism” directed at any “Hutu” or “Tutsi” who is critical of the Kagame regime, it appears that the Kagame government’s impunity is being extended far beyond the ICTR to reach opponents of the Kagame government worldwide.

The Security Council has announced that new trials will be over in 2008 and the appeals in 2010 . . . soon the ICTR will be no more.[77] IF all goes as planned, the ICTR will soon pass into history as the only International Tribunal that was not designed as a tool of “victor’s justice” . . . but became one, in practice.


Rejecting Juridically-Constructed Impunity:
The Only Chance for Reconciliation in Rwanda.

I have been declared a criminal by President Kagame, himself, for putting these facts before the ICTR and the court of public opinion. Under the laws of Rwanda, I have violated the ban against “negationism” by questioning the Kagame version of events. My former Rwandan investigator has been threatened with arrest and is seeking asylum. A Rwandan ICTR lawyer was been arrested when he attended the court,[78] and a defense investigator is being prosecuted for manipulation of evidence by the same ICTR Prosecutor who has refused to follow Ms. Del Ponte’s lead, the recommendations of Judge Bruguière or the indictments and warrants issued by Spanish Judge Andreu.[79]

One has to hope, now that the manipulations of the ICTR by the U.S. and U.K. for their own political purposes are known at the ICTR and increasingly outside of Africa, that the good judges in Military-I will carefully evaluate the evidence and require “proof beyond a reasonable doubt” before they permit my client, Major Ntabakuze to be convicted . . . but it is hard to be optimistic. ICTR process has made it possible to document a narrative which contradicts the story told by the “victors,” something not possible at Nuremburg or Tokyo, and which permits a more balanced and accurate historical appraisal of the Rwanda war . . . and genocide. Now that this evidence has been discovered, it can be evaluated by scholars and historians, even if it cannot change the pre-ordained outcome of the Tribunal.

And, perhaps, this will eventually prove to be the greatest contribution that the ICTR has made to the development of “international justice.” And if the more accurate historical record provides the basis for a sharing of responsibility for the undeniable tragedy of Rwanda, a South African-style “reconciliation” process might be possible for Rwanda. However, if the ICTR succeeds in fixing blame only on the losing side of the Rwanda war, through juridically-created impunity, the likelihood of a stable peace in Rwanda will have been reduced to the vanishing point . . . and another Rwanda tragedy is a predictable consequence.

Rejection of juridically-constructed impunity is not only a necessity for justice to be achieved in the short-run, it is also necessary to prevent a distortion of international legal institutions into political tools of the powerful of the world, in the long-run. With respect to Rwanda, juridically-constructed impunity is certain to be the source of future conflict, created by a false reconstruction of history. In the absence of at least some mutual acceptance of responsibility, the ICTR will actually establish the ground for future explosions of violence, which is the inevitable consequence of a “peace” imposed by force and the power of external actors. And that there are nations in the world still in a position to project, even to distort the operations of supposedly neutral juridical institutions established under the auspices of the United Nations, despite the good intentions of human rights advocates.

This will be the unfortunate legacy of the ICTR, unless the Security Council insists that its mandate be fulfilled . . . despite the now well-established intervention of two of its most powerful members.

Prof. Peter Erlinder
President, ICTR-ADAD (Association des Avocats de la Defence), Arusha, TZ
ICTR Lead Counsel, Military-I Trial (Prosecutor v. Ntabakuze)
Past-President, National Lawyers Guild, New York, NY
c/o Wm. Mitchell College of Law
875 Summit Av.
St. Paul, MN 55105
peter.erlinder@wmitchell.edu / (651) 290-6384

***********************************

Notes:

© Prof. Peter Erlinder, May 2008

1 President ICTR-ADAD (Association des Avocats de la Defence), Arusha, TZ; ICTR Lead Defence Counsel, Prosecutor v. Ntabakuze (ICTR Military-I Trial); Past-President, National Lawyers Guild, New York, NY; Prof. of Law, Wm. Mitchell College of Law, St. Paul, MN.

2 Hartmann, Paix et chatiment les guerres de la politique (Flamarion, Paris September 27, 2007), p. 271-72: “It is unfair that politics undermines our work. I find it wounding to see that we have managed to ridicule the principles of international justice . . . because Kagame has signed a bi-lateral agreement [with the United States].”

3 Whether the Security Council has a proper mandate to establish tribunals under Chapter 7 “peace-enforcement” powers is an issue raised at both the ICTY and ICTR, and remains the source of some controversy.

4 Recent revelations indicate that the task of the ICTR Prosecutor has been complicated by the necessity to re-cast the Rwanda war, and the resulting prosecutions, in a manner that is actually inconsistent with the evidence showing that the Rwanda narrative upon which the ICTR prosecutions have been grounded has been complicated by the political necessity of creating impunity for the victors in the Rwanda war. See Del Ponte and Hartmann references, Infra.

5 See, infra.

6 See, infra.

7 However, on May 27, 2008, Hirondelle Newservice reported that ICTR President Dennis Byron will report to the Security Council that the 2008 “completion strategy” is not realistic.

8 The ICTR has recently approved Rwanda as a possible transfer site, despite the recent indictments of leading figures in the Rwanda government for crimes committed during 1994. See indictments of Judge Bruguière (France, November 2006) and Judge Andreu (Spain, February 2008). See also commentary by author, “The Great Rwanda Genocide Coverup” February 18, 2008, “Different Justice at the Rwanda War Crimes Court,” March 10, 2008, JURIST website, (U of Pittsburgh, U.S.) However, the OTP request to transfer the Prosecutor v. Munyakazi case was rejected by one of the ICTR trial chambers on May 29, 2008.

9 Of course, the Nuremburg and Tokyo Tribunals failed to consider the fire-bombing of Dresden or Tokyo, much less atomic weapons used on civilians in Hiroshima and Nagasaki. Delineating the nature of these acts as “crimes” is beyond the scope of this paper, but the commission of “crimes” by all participants in WW-II is beyond dispute, the asserted justifications for their commission are another matter.

10 Hartmann, Paix et chatiment les guerres de la politique (Flamarion, Paris September 27, 2007), p. 271-72. Ms. Hartmann reports the 2003 exchange between Ms. Del Ponte and Iqbal Riza, the first assistant to Kofi Annan in 1994 in the Department of Peacekeeping Operations.

11 For purposes of this paper, this brief historical review has been drawn from a much more detailed account in the author’s forthcoming book on the ICTR and the Rwanda War. For a description of the war from the perspective of a former officer in the RPF/A, see Military-I exhibit DNT 218, Ruzibiza, The Secret History of Rwanda, (Paris, 2005)

12 The NRA of Uganda, under Yoweri Museveni, had deposed a socialist-oriented Milton Obote in 1986, after a war for power in which at least 300,000 civilians were killed between 1981-1985. See, Mamdani, When Victims Become Killers, (Kampala, Fountain 2001) and Waugh, Paul Kagame and Rwanda, (McFarland, USA 2004). In 1996 and again in 1998, the combined armies of Uganda and Rwanda invaded the Eastern Congo and established de facto control over the economic and material resources of that region with Kigali and Kampala becoming major trading centers for gold, diamonds and precious minerals that are now being exported through Uganda and Rwanda, rather than westward down the Congo River as had previously been the case. See, 2003 Experts Report on Congo and references, infra.

13 Testimony at the ICTR from former RPA officers identified several ammunition/weapons caches of 200-300 tons in the area of Rwanda controlled by the RPA, much of which was delivered in 1993 after the RPA had established military dominance in February 1993.(i.e., Lt. Abdul Ruzibiza March, 9 and 10, 2006, and others).

14 See notes and Amnesty International Report of September 1994, infra.

15 ICTR Military-1 exhibit DB 71: The RPA military superiority was documents by Gen. Dallaire in the Sept 1993 UNAMIR Reconnaissance Report filed at the ICTR.

16 The Arusha Accords were signed in August 1993.

17 The political consequence of the resumption of the war was that the RPF became the ruling political power as a compliment to the military superiority the RPA had achieved in February 1993 and demonstrated conclusively in April-July 1994.

18 The final sticking point was the inclusion of an “anti-Tutsi” party, the CDR, if it agreed to modify its positions as required by the Arusha Accords. By April 1, 1994, the CDR had agreed to the conditions imposed by the Arusha process and all parties, safe the RPF, agreed that the CDR must be permitted to joint the “unity”/transition government.

19 ICTR Military-1 exhibit DNT 121: April 1, 1994, Code Cable from U.S. Ambassador Rawson in Kigali to U.S. Embassy in Kampala Uganda.

20 A March 28, 1994, cable from Gen. Dallaire describes the FAR Gendarmes as completely non-functional as a result of the long war and incapable of addressing ordinary law and order issues, much less a massive increase in violence as had recently occurred in Burundi after the assassination of the Burundian President.

21 See references infra.

22 ICTR Military-I testimony of U.S. Ambassador to Rwanda 1990-1993, Robert Flaten, July 2006. (It is worth noting that, after Amb. Flaten called for a Truth and Reconciliation Commission for Rwanda, along with Paul Rusesabagina of Hotel Rwanda fame, he was publicly accused of being a “gun-runner for the Hutus” during 1994 by the Rwandan Ambassador to the U.S. at a Chicago conference sponsored by Rev. Jesse Jackson in the summer of 2007 – author)

23 ICTR Military-I exhibit DNT 315. April 7, 1994, cable of Amb. Prudence Bushnell: “If, as it appears, both Presidents have been killed, there is a strong likelihood that widespread violence could break out in either or both countries, particularly if it is confirmed that the plane was shot down.”

24 Burundian massacres of several hundreds of thousands of mainly Hutu civilians after the assassination of President Ndadaye in October 1993, as well as in 1972 and 1988. See Lemarchand, “Managing Transition Anarchies, Rwanda, Burundi and South Africa,” Journal of Modern African Studies, Vol. 32, No. 4 (Dec. 1994) and numerous other sources.

25 A sustained military campaign such as that conducted by the RPF is indicative of necessary pre-planning and organization of materiel and logistical support.

26 ICTR Military-I exhibit DNT 259. May 17, 1994, UNCHR Report of RPF killings at Rusomo Bridge to Tanzania, over Kagera River, in southeastern Rwanda. This evidence was put into the ICTR record by the Ntabakuze Defence, NOT by the Prosecution. (emphasis added).

27 See, ICTR Military-I defense Exhibit DNT 258:
Amnesty International, Rwanda: Reports of killings and abductions by the Rwandese Patriotic Army, April-August 1994, October 20, 1994:
• 1. Introduction:
Amnesty International has known for years that the RPF closely monitored and
controlled movements of foreigners in areas under its control. Journalists and
representatives of humanitarian organizations rarely talked to Rwandan citizens
under the control of the RPF without an RPF official being present. This ensured
that before the new government came to power on 19 July 1994 very limited
information about abuses by the RPA could be gathered and made public . . .
However, Amnesty International has received numerous reports of human rights
abuses committed by the RPA since the war in Rwanda began in October 1990. These
have included hundreds of deliberate and arbitrary killings or possible extrajudicial
executions and disappearances . . . reports of civilian supporters of the RPF being allowed
to kill opponents . . .

28 ICTR Exhibit DNT 260A:

New York Times, August 5, 1994: Bonner, Raymond, “Rwandans Say the Victors Kill Many Who Go Back”

KADUA, Rwanda, Aug. 4 -- . . . Recently, hearing from the new Government in Kigali that it was safe to go home, some have tried. And now they are coming back to the wretched refugee camps with reports that some Hutus [have been
killed by the] Rwandan Patriotic Front . . . In separate interviews, other Hutu
men and women . . . gave similar accounts of men tied up and led away by Patriotic Front soldiers and of men, women and children being killed when they returned
to their villages. There have been persistent rumors of atrocities by the Patriotic
Front but no confirmations until now. But, two reporters who spent several hours today in separate interviews with refugees found their accounts credible.

New York Times, September 28, 1994: Bonner, Raymond “U.N. Stops Returning Rwandan Refugees,”

GENEVA, Sept. 27 -- “In a sharp reversal of policy, the United Nations has
stopped encouraging Rwandan refugees and is refusing to even assist those who
wish to go home because of a report that the new, Tutsi-dominated Government
in Rwanda has killed thousands of members of the Hutu ethnic group . . . the report
concluded that there was ‘an unmistakable pattern of killings and persecutions’ by
soldiers of the Rwandan Patriotic Front, ‘aimed at the Hutu populations’ . . . the report
was based on a five-week investigations that included interviews with 300 Rwandans
in 41 of Rwanda’s 145 communes and at nine refugee camps.”

Le Monde, October 10, 1994
“Rwandan: Un rapport confintiel faisat état de la mort de 30,000 Hutus controverse
persiste sur les allegations du HCR (RAPPORT GERSONY)”

See also, ICTR testimony of former Rwandan Foreign Minister Jean Marie Ndagiyimana,
November 2006 and documents associated therewith.

29 ICTR Military-I defense Exhibit DNT 261:

Human Rights Watch, Absence of Prosecution, Continued Killings, Sept. 1994:

• Killings, Arrests and Disappearances of the Accused, p. 3

• At Kimuvu parish . . . priests were evacuated when RPF soldiers arrived to make camp on the grounds. When the priests returned in July, they found a considerable number of bodies. Apparently, the victims, whose arms had been bound, had been assembled for interrogation by the soldiers and had been beaten to death. The priests organized the burial of the bodies in three large mass graves which were located and photographed by Human Rights Watch/Africa.

• On July 13, in the southern town of Butare, RPF soldiers gathered several hundred displaced persons . . . most or all of the men have not been heard from since. The men were detained in the veterinary school . . . Witnesses related that for a period of two days there were sounds of people being killed in the woods next to the school.

• (many other examples included in report)

• The RPF Killing of Civilians During the War, p. 5


30 ICTR Military-I defense Exhibit DNT 258:

Amnesty International, Rwanda: Reports of killings and abductions by the Rwandese Patriotic Army, April-August 1994, October 20, 1994:

• 1. Introduction:
Amnesty International has known for years that the RPF closely monitored and controlled movements of foreigners in areas under its control. Journalists and representatives of humanitarian organizations rarely talked to Rwandan citizens under the control of the RPF without an RPF official being present.
This ensured that before the new government came to power on 19 July 1994, very limited information about abuses by the RPA could be gathered and made public . . . However, Amnesty International has received numerous reports of
human rights abuses committed by the RPA since the war in Rwanda began in
October 1990. These have included hundreds of deliberate and arbitrary
killings or possible extrajudicial executions and disappearances . . . reports of
civilian supporters of the RPF being allowed to kill opponents . . . many prisoners
held by the RPA have been subjected to a particularly painful form of tying . . .

• 2. Deliberate and arbitrary killings by the RPA, p. 3.

• 3. Abductions and “disappearances” by the RPA, p. 8.


31 ICTR Military-1 Evidence, DNT 264.

32 See, ICTR Military-I testimony of fmr. RPF Foreign Minister Jean-Marie Ndagiyimana, November 2006.

33 Donatella Lorch, New York Times, April 28, 1995:

The United Nations says some 2,000 ethnic Hutu refugees were killed -- shot, trampled or hacked to death -- when Rwandan Government troops opened fire Saturday on a surging crowd in Kibeho. Many bodies were buried before the United Nations gained complete access to the site early Sunday, so the figure is an estimate based partly on its survey of the carnage on Saturday.

(The temporal jurisdiction of the ICTR extends only to the year 1994 and crimes committed by the RPF/A after 1994 are at issue at the ICTR and are mentioned here only to establish the fact that later actions and policies of the RPF/A confirm that the use of military violence and civilian casualties are tactics which the Rwandan government has adopted).

34 See, UN Panel of Experts Report on the Illegal Exploitation of the Democratic Republic of the Congo, October 20, 2003.

35 ICTR defence evidence in Military-I, Exhibit DNT 365. March 8, 2007, Affidavit of QC Michael Hourigan (and supporting affidavit of Amadou Deme):

In late January or early February 1997 members of the National Team were approached by three (3) informants (either former or serving member of the RPF) claimed direct involvement in the 1994 fatal rocket attack on the President’s aircraft. Their evidence specifically implicated the direct involvement of President Paul Kagame, members of his administration and military. The informants also advised that the Kagame administration was actively involved in covert operations aimed at murdering high profile ex-patriot Rwandans – one such murder was the death of Seth Sendashonga in Nairobi.

36 i.e., that the current Rwandan government and military, led by Paul Kagame, were the “heros” who had stopped their genocidal predecessors by seizing power in mid-July 1994, after the previous President had blocked efforts to democratize Rwanda and was killed, probably by his own military.

37 See Bruguière Indictment, November 2006, charging RPF leaders for the assassination of former President Habyarimana, and recommendation that Kagame be prosecuted at ICTR.

38 See Andreu Indictment, February 8, 2008, charging 40 RPF leaders, including Paul Kagame, with crimes committed during 1994, including the assassination of former President Habyarimana and genocide.

39 In September 2007, it became apparent that, “According to independent experts, some 30,000 Hutu had been killed in Rwandan territory, at the time the army of the RPF was advancing. The Arusha prosecution had catalogued fourteen sites of massacres and was making efforts to go up the chain of command.” Hartmann, Paix et chatiment, p. 66.

40 See Hartmann and Del Ponte, infra. However, on May 29, 2008, an ICTR trial chamber rejected the OTP request to transfer the Munyakazi case to Rwanda, an indication that the exposure of the RPF crimes may be causing a reappraisal by at least some members of the ICTR judicial chambers.

41 See, Hartmann, Paix et chatiment, pp. 261-72

42 See generally, Waugh, Paul Kagame and Rwanda: Power, Genocide and the Rwandan Patriotic Front (MacFarland USA 2004)

43 See generally, U.S. State Department 2003 Human Rights Report on Rwanda, Feb. 25, 2004.

44 The Economist, Aug. 28, 2003.

45 Rptr. Colette Flesch, Report of European Observer Mission, September 2003; See also, Waugh, Paul Kagame and Rwanda: Power, Genocide and the Rwandan Patriotic Front, pp. 185-206 (Mcfarland USA 2004)

46 ICTR Military-I Defence Exhibit: Joint Statement issued by RPF and opposition parties from Brussels, May 1992.

47 The Economist, March 28, 2004.

48 UN Panel of Experts Report on the Illegal Exploitation of the Democratic Republic of the Congo, October 20, 2003.

49 Id.

50 United Nations Security Council Report of Experts Oct. 2003, which are continuing as this is being written in spring 2008. The most recent estimates are that more than 6 million people have been killed and more civilians are being killed in eastern Congo every 4 months than have been killed in Darfur in total!

51 Hartmann, Paix et chatiment.

52 In September 2007, the 1994 reports of RPF crimes mentioned earlier were cited as the basis for ICTR prosecutions by Hartmann quoting Del Ponte, “According to independent experts, some 30,000 Hutu had been killed in Rwandan territory, at the time the army of the RPF was advancing. The Arusha prosecution had catalogued fourteen sites of massacres and was making efforts to go up the chain of command.” Hartmann, Paix et chatiment, p. 66.

53 BBC, March 02, 2003.

54 Hartmann, Paix et chatiment: les guerres de la politique. (Flammarion, Paris, September 10, 2007).

55 Del Ponte, War Criminals and Me (2008).

56 In the main, the Hartmann book discusses the Yugoslavia Tribunal, from which Ms. Del Ponte resigned at the end of 2007, and describes Del Ponte’s frustration with the U.S. State Department’s interference with the prosecution of Slobodan Milosevic because of his usefulness to the U.S. during and after the Dayton Accords. The book sets out in some detail the numerous ways that UN member-states manipulated, or tried to manipulate, the Yugoslavia Tribunal for their own purposes.

57 Hartmann, Paix et Chatiment, pp.261-72.

58 Presumably, Ambassador Prosper had access to much of the same information that had caused Prosecutor Del Ponte to make her public announcement of RPF culpability, since he was a lead prosecutor in Prosecutor v. Akeyesu, one of the first convictions following trial at the ICTR.

59 Hartmann, Paix et Chatiment, pp. 261-72.

60 See, ICTR Military-I and Military-II exhibits.

61 See website (under construction) by the author with the assistance of Wm. Mitchell College of Law to put documents into the public record that makes independent research possible: www.rwandadocumentsproject.net

62 ICTR Military-I Defence Exhibit DNT 365, (Affidavit of Michael Hourigan QC).

63 ICTR Military-I Defence Exhibit proposed DNT 366.

64 The Hartmann book also describes how a U.S. prosecutor, Michael Johnson, undermined Del Ponte’s investigations of the Kagame government in 2003.

65 ICTR Military-I testimony of Lt. Abdul Ruzibiza, Mar. 9-10, 2006.

66 ICTR Military-I exhibit DNT 218: Ruzibiza, The Secret History of Rwanda, (Paris, 2005)

67 ICTR Military-I testimony (closed session)

68 See, LeMonde, June 29, 2007, quoting Prosecutor Jallow. In 2007, the principal figure in the film Hotel Rwanda, Paul Rusesabagina, publicly called for the investigation of the RPA and Kagame’s involvement in the Habyarimana assassination. The response from Mr. Jallow of the OTP was that there was insufficient evidence to proceed against Kagame or the RPA/F, a copy of the Rusesabagina responsive open letter of July 9, 2007, was published at: www.taylor-report.com.

69 See ICTR Military-I documentary evidence et seq.

70 See, related notes, supra

71 Similar reports were published by Human Rights Watch and Amnesty International in the fall of 1994. See related notes supra.

72 See related notes, supra and infra.

73 See testimony of fmr. Rwandan Foreign Minister Jean Marie Ndagiyimana, November 2006.

74 Id. and related notes, infra.

75 However, on May 29, 2008, an ICTR chamber rejected the transfer of the Munyakazi case to Rwanda, which indicates that the growing public record exposing the crimes of the RPF may be having an impact on the judges sworn to due justice at the ICTR.

76 See article by this author on JURIST website (U. of Pittsburgh, US), March 8, 2008, cited supra.

77 On June 4, 2008, ICTR President Dennis Byron will report to the Security Council that the 2008 completion date is not workable, which has been reinforced by the May 29, 2008, Decision in Munykazi to deny transfer to Rwanda, and return two accused from European countries which have declined to accept jurisdiction.

78 ADAD member Me. Gakwaya, a Rwandan ex-patriot living in Mozambique, was arrested by Tanzanian authorities based on a Rwandan warrant when he appeared at the ICTR in September 2007. He has since been released, but is now deceased. Emilien Dusabe, formerly an investigator in the Military-I trial, was threatened with prosecution in Kigali and is seeking asylum in Europe. Investigator Nshogoza has actually been prosecuted (see note infra) and another investigator has recently gone into exile and is seeking asylum (source confidential).

79 An indictment in Prosecutor v. Nshogoza, an investigator charged in Rwanda and transferred to the ICTR was filed in mid-2008.