Sunday, February 01, 2009

NO Conspiracy? NO Planning? NO Genocide? NO Problem!--Professor Peter Erlinder's Commentary in 23 December 2008, JURIST

NO Conspiracy? NO Planning? NO Genocide? NO Problem!--Professor Peter Erlinder's Commentary in 23 December 2008, JURIST

[The December 18, 2008, announcement of the convictions of three of the four defendants in what has come to be known as the Military I trial before the International Criminal Tribunal for Rwanda made the headlines on all the major Western news media.

On CNN-International, the bloated and ghoulish Jim Clancy, whose very career slithered from the piles of decomposing corpses left behind by the rampaging Western liquifactionists in their aggressions against the popular (majoritarian) revolutions in Rwanda and Yugoslavia, was joined on-air by a similarly flaccid, a lifeless but for his moral squirming, David Scheffer, Clinton's 'Ambassador-at-Large for War Crimes' (theirs, not ours), in some anile clucking over yet another victory for International Justice in the never-ending struggle to 'Stop the Fucking Genocide' (theirs, not ours). The acquittal on all charges of one Defendant and his immediate release (former Rwandan Armed Forces Gen. Gratien Kabiligi is known to stand in good stead with the ruling RPF, and will probably join in seasonal festivities with his compatriot, RPF Col. Rose Kubaye, Rwandan President Paul Kagame's chief of protocol, recently arrested in Frankfurt on a warrant issued by French anti-terrorist judge, Jean-Louis Bruguière, for the murders of all on board the Rwandan presidential jet, including the three French crew members, on 6 April 1994, extradited to France, and then cut loose at the insistence of a craven collaborator, French Foreign Minister, Bernie Kouchner); and the fact that ALL Defendants were acquitted of having planned the systematic killing of Tutsi and moderate Hutu civilians, or of having taken part in any sort of conspiracy to commit genocide (which is sine qua non for this chic crime), are being written off as evidence of the Tribunal's independence and objectivity, or as mere judicial oversights that will be corrected on appeal.

(Scheffer showed not the slightest shame or even self-consciousness when, while referring to Theoneste Bagosora et al, the Defendants, as the brains and the instigators of the Rwandan genocide, the very crimes of which they had just be absolved, he suggested the Prosecution might file an appeal on the great victory that he and Clancy had just been fondling one another over).

Below, Professor Peter Erlinder describes just how 'NON-victorious' was this, yet another, shabby hit-and-run against real History and the rule of law.

But, with all due respect—and I certainly hope Professor Erlinder knows in what high regard I hold him and his excellent work—in twice referring to the martyred president of Rwanda, Juvénal Habyarimana, as the 'FORMER-Rwandan president' at the moment he was torn to shreds by one of Paul Kagame's US-supplied SAM missiles, he makes the sort of telltale misstatement more commonly used by the purveyors of RPF propaganda to minimize the significance of the events that led to the 100-day liquidation of the majoritarian Rwandan government by the neo-feudal Tutsi militarists.

Since President Habyarimana was the sitting civilian head of state at the time of his murder, and would doubtlessly have been returned to the Rwandan presidency had the democratic elections called for by the 1993 Arusha Accords been duly carried out, the only way Kagame & the RPF could effectively take power in that already war-ravaged country was by a brutally and brazenly murdering the highly-popular Habyarimana as the signal for their final assault and seizure of state power by taking the capital city of Kigali (and emptying the country of an important part of its Hutu majority, to be gruesomely eliminated later in Congo), referring to Habyarimana as the 'former president' or the 'ex-president' of Rwanda—like referring to the RPF’s missile strike of 6 April 1994 that brought down the Falcon 50 presidential jet as a 'plane crash', or worse still, 'an accident', sufficiently minimizes this terrorist act and trivializes the culpability of its perpetrators, and allows the ever-more mawkish plaints over a generations-old 'genocide against Tutsis' to continue unquestioned. And those who dare criticize this feeble orthodoxy are tagged as ‘negationists’ or even ‘Holocaust deniers’.

Professor Erlinder also leaves out a much earlier admission by the Prosecution that it had no case on the genocide charges. Some time ago the ad hoc Tribunals for Yugoslavia and Rwanda abandoned any genuine efforts to establish the legal or historical reality of the Genocide Charge. Expert supporters of this illegal or extralegal system have even stated that the nature of the crime, itself, makes it impossible to prove—like the existence of God or of extra-terrestrial interventions or of Sharon Stone’s intelligence, a Genocide Charge is based more on intuition or faith (or political expediency) than rational evidence.

So, exacerbating the already inherent presumption of guilt in all these victims' (victors') justice proceedings, the Appeals Chamber of the ICTR instructed the Trial Chamber on 16 June 2006, in the case of the Prosecutor v Édouard Karemera, Mathieu Ngirumpatse, and Joseph Nzirorera (Case No. ICTR-98-44-AR73[C]) to ‘TAKE JUDICIAL NOTICE’ of the 'FACT OF GENOCIDE’.

Dr. John Laughland, in his otherwise excruciatingly careless book, The History of Political Trials from Charles I to Saddam Hussein (Peter Lang, Oxford, 2008), explains this para-legal shuck thus:

procedure by which the need for proof is waived when
the facts in question are uncontested and uncontroversial,
and usually when they do not bear on the matter in hand.
Examples of the kinds of things of which judicial notice can
be taken include the location of a place or the day of the week
on which a certain date falls. When judicial notice is taken of
a fact, it means that that fact can no longer be disputed in court.

To instruct the Trial Chamber to take judicial notice of the fact
of genocide, however, is to remove from defendants the right to
plead that genocide did not occur. (p. 212)>>

And it also creates a sort of hard-wired, simultaneous Double Jeopardy, allowing the court to acquit the Defendants of genocide while convicting them of individual ‘acts of genocide’ ALLEGEDLY COMMITTED BY OTHERS and condemning them to perpetual imprisonment.

But because of the tenaciously committed work of lawyers like Erlinder and Chris Black and Tiphaine Dickson, the ICTR has turned into its sponsors' and minders' worst nightmare: a livid recording of the unwholesome political manipulation of History and the degradation of International Justice.

This is exactly the record that a constitutional scholar like President-elect Obama should be made to listen to—and should insist his so-far thoroughly reactionary foreign policy team (especially where Africa is concerned) rigorously study and learn to dance to.

Let the Obama team's master class begin here. —mc]


JURIST Commentary, December 23, 2008:

Rwanda: No Conspiracy, No Genocide Planning ... No Genocide?


JURIST Guest Columnist Peter Erlinder of William Mitchell College of Law and a Lead Defense Counsel at the International Criminal Tribunal for Rwanda (ICTR), says that if - as the ICTR recently ruled in the "Military I" trial - alleged "masterminds" Colonel Theoneste Bagosora and fellow top Rwandan military officers engaged in no conspiracy and no planning to kill ethnic civilians, the tragedy that engulfed Rwanda in 1994 may not properly be called a "genocide" at all...


The media reports of the December 18 judgment of Chamber-1 at the International Criminal Tribunal for Rwanda focused primarily on the convictions of three of four former top military leaders, who were the supposed “masterminds” of the Rwandan genocide. But, as those who have followed the ICTR closely know, convictions of members of the former Rwandan government and military are scarcely newsworthy.

Ever since former ICTR Chief Prosecutor Carla Del Ponte and ICTR Chief Investigative Prosecutor Michael Hourigan went public in 2007-8 exposing US-UK manipulations to grant de facto impunity to current Rwandan President Paul Kagame and his henchmen, between 1997 and the present, convictions of the vanquished in the Rwanda war are a given.

The real news was that ALL of the top Rwandan military officers, including the supposedly infamous Colonel Bagosora, were found not guilty of conspiracy or planning to commit genocide. And Gen. Gratien Kabiligi, a senior member of the general staff was acquitted of all charges! The others were found guilty of specific acts committed by subordinates, in specific places, at specific times - not an overall conspiracy to kill civilians, much less Rwandan-Tutsi civilians.

This raises the more profound question: If there was no conspiracy and no planning to kill ethnic (i.e., Tutsi) civilians, can the tragedy that engulfed Rwanda properly be called “a genocide” at all? Or, was it closer to a case of civilians being caught up in war-time violence, like the Eastern Front in WWII, rather than the planned behind-the-lines killings in Nazi death camps? The ICTR judgment found the former.

The Court specifically found that the actions of Rwandan military leaders, both before and after the April 6, 1994, assassination of former-Rwandan President Juvenal Habyarima ('sic'--he was the seated head of state at the time of his murder--nb), were consistent with war-time conditions and the massive chaos brought about by the four-year war of invasion from Uganda by Gen. Paul Kagame's RPF army, which seized power in July 1994.

Although the Chamber did not specifically mention more recent events, it is worth noting that this is the same government that was named in a UN Security Council-commissioned report on December 12, 2008, as having invaded (with Uganda) the eastern Congo in 1996 and again in 1998 and having occupied an area 15-times the size of Rwanda since then. Similar UN Security Council reports in 2001, 2002 and 2003, make clear that Rwanda and Uganda's economic rape of the eastern Congo, and the resulting 6 million-plus civilian deaths, have long been an “open secret".

As Lead Defense Counsel for Major Aloys Ntabakuze, who was convicted of three specific crimes committed by troops without evidence they were acting under his authority, I would say the judgment was actually a victory. Our defense was based on previously suppressed contemporaneous UN and declassified US documents that showed Kagame's RPF to be the war-time aggressor responsible for the assassination of the former (sic) President and for preventing military intervention to end the predicted civilian massacres.

The ICTR oral judgment specifically refers to this “alternative” explanation of the tragic events in Rwanda as being a basis for rejecting the conspiracy and planning charges against the former military leaders. But the documents show more.

As early as May 17, 1994, UNHCR was receiving reports of massive civilian killings by Kagame's RPF in the 1/3 of Rwanda they had occupied since April 22. Other documents from August, September and October 1994, describe a conscious attempt by UN and US government officials to “cover-up” reports of RPF killings, including memos to Secretary of State Warren Christopher. Apparently, US policy to create “impunity” for Kagame began nearly as soon as he took power.

Had the US “impunity policy” not been in place, Kagame might well have been prosecuted along with Military-1 defendants Bagosora and Nsengiumva, as ICTR Prosecutor Michael Hourigan recommended in early 1997. Kagame's responsibility for the assassination of Habyarimana has been known to the ICTR Prosecutor since at least that time, if not early.

Had the US “impunity policy” not been in place, Kagame might well have spent the last decade awaiting trial at the ICTR, rather than getting rich from the resources of the Congo, and the blood of millions of Africans.


Peter Erlinder is a professor at William Mitchell College of Law, St. Paul, MN. He is a past-President of the National Lawyers Guild, a Lead Defense Counsel-UN International Criminal Tribunal for Rwanda, and the President of the ICTR-ADAD (Association des Avocats de la Defense).




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