Destroying the rule of law -- by John Laughland

Destroying the rule of law -- by John Laughland

[Here's John Laughland's piece on the degradation of International Law inspired by Chris Black and Peter Erlinder's breaking of the news of the Rwandan Tribunal's court ordering of 'The FACT of the Genocide of 100 Days' in 1994 into the canon of the Obvious, thereby relieving what pathetic little burden of proof remained on the prosecution in these Victims' Justice cases. Laughlin has for some time been a strong supporter of Yugoslavia, but, as far as I know, this is his first venture into the Central Africa dossier. He is certainly to be applauded for this brave gesture--one that few other critics of US/UK foreign policies have dared to make. The article was pirated by CM/P from Sanders Research Associates for your reading pleasure. --mc]


Destroying the rule of law

By John Laughland
Jul/05/2006

On 16th June 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a ruling which destroys at it most fundamental level the very concept of due process in a criminal trial. It ruled that the Trial Chambers must ‘take judicial notice’ of the ‘fact’ that ‘between 6th April 1994 and 17th July 1994 there was genocide in Rwanda against the Tutsi ethnic group.’

The goal if this decision is not to make the prosecution's job easier, instead it is designed to prevent the defence from presenting the overwhelming evidence now developed that there were many complex reasons for the events in Rwanda, but genocide is not one of them. This political purpose of the decision is stated outright in the press release when the Tribunal states that this decision by the Appeal Chamber should "silence the rejectionist camp".

Further, not only is the Appeal Chamber decision wrong on the facts, it is wrong in law as in no legal jurisdiction in the world is it possible for a court to take judicial notice of a "fact" which is disputed by one of the parties in the case.

Many opponents of the US-led war on terror rightly attack the US for committing abuses of due process, of which the prison camp at Guantánamo Bay has now become an anti-iconic symbol. The Americans are often attacked for disobeying ‘international law,’ in this case by denying to their prisoners on Cuba the right accorded prisoners of war by the Geneva Conventions. Few such opponents, however, disagree with the concept of ‘international law’ itself and instead believe that it embodies a superior morality than the narrow self-interest of nation-states. Recent developments in international law suggest, however, that this is not the case and that, on the contrary, international law is even more corrupt than national.

Ever since the end of the Cold War, there has been a tendency to ‘criminalise’ international relations and to bring the methods and philosophy of the criminal law into a legal structure which used to be based only on consent between sovereign states. Ever since President George H. W. Bush proclaimed the ‘new world order’ on 11th September 1990, and ever since the UN Security Council approved the First Gulf War and reproached Saddam Hussein’s regime for the way it was allegedly mistreating its Kurds and Shiites, international law has become increasingly coercive. This, indeed, was precisely what Bush Senior meant when he used that pregnant phrase. Prior to that, broadly speaking, international law had consisted only of the treaty agreements between states, while national sovereignty and the principle of non-interference in the internal affairs of states were considered the cornerstones of the international system.

The new approach to international law quickly led to important institutional changes at the international level, in particular to the creation of international criminal tribunals for Yugoslavia and Rwanda in 1993 and 1994. Although the new International Criminal Court, which was created in 1998 and whose jurisdiction may one day cover the whole planet, was not imposed by the Security Council in the way the ICTY and the ICTR were, it will doubtless draw on the practices of these two ad hoc tribunals. It is essential, therefore, to observe their practices to see whether a future regime of coercive ‘international law’ with universal reach would be desirable or dictatorial.

Two recent developments suggest it would be the latter. On 16th June 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a ruling which destroys at it most fundamental level the very concept of due process in a criminal trial. It ruled that the Trial Chambers must ‘take judicial notice’ of the ‘fact’ that ‘between 6th April 1994 and 17th July 1994 there was genocide in Rwanda against the Tutsi ethnic group.’[1]

Taking judicial notice of a fact is a recognised procedure in many jurisdictions. It is a rule in the law of evidence which allows a fact to be formally accepted by the court if its truth is so well known that it cannot be refuted. The rule is customarily used for matters which really are beyond dispute, such as the locations of streets in a court’s jurisdiction or the day of the week on a certain date. When a court takes judicial notice of such facts, the parties in the trial cannot contest them. Superior courts can instruct lower courts to take judicial notice of facts like federal laws and other government regulations.

It is obvious that this procedure is strictly limited to facts which are really not in dispute, and that it is intended to prevent defendants from wasting the court’s time by disputing everything. It has never been used to take as given the very thing which is at issue in the trial. The Rwanda Tribunal has therefore done something which does not exist in any civilised jurisdiction in the world. It has imposed mandatory judicial notice on the Trial Chambers of the ‘fact’ that genocide occurred in Rwanda in 1994, whereas many of those who are accused of committing genocide or of complicity in it are basing their defence on their denial that genocide occurred at all.

No wonder that, according to the official ICTR press release, the Office of the Prosecutor welcomed the ruling because it would ‘silence the “rejectionist” camp which has been disputing the occurrence of genocide’. The ruling does indeed remove at a stroke the central plank of the case of many defendants. The word ‘rejectionist’ is presumably intended to translate the French term ‘négationniste’ which refers to those who deny the Holocaust and therefore to tar defendants at the ICTY and their lawyers with the same brush. But the Appeals Chamber ruling goes to very heart of what criminal trials are all about. This is because ‘genocide’ has a specific meaning in international law, as formulated by the 1948 Genocide Convention and by the ICTR Statute itself.

That Statute defines genocide using the following words and phrases:

‘acts … committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ [including] ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,’ and ‘imposing measures intended to prevent births within the group.’

In other words, the legal definition of genocide in international law contains repeated and crucial references to the all-important concept of mens rea . According to the statute, therefore, it should be impossible to be convicted of the crime of genocide without mens rea being established. You cannot commit genocide by mistake. Yet the Appeals Chamber ruling says that mens rea has been established, and it has required the Trial Chambers to take judicial notice of this ‘fact’ and therefore to treat it as established in all the trial pending before them.

All criminal trials turn on the question of mens rea (guilty mind): once the actus reus (guilty act) has been established, if it has, then the court must establish whether the defendant intended to commit the act or whether it was an accident or had some other cause. Only if mens rea is established can a criminal conviction be obtained on the full charge. By ruling that Trial Chambers must take judicial notice of the ‘fact’ that genocide occurred, the Appeals Chamber of the Rwanda Tribunal is ruling as proven the very thing which criminal trials are supposed to establish and which, in this case, the defendants deny, namely that they desired or organised the events in question.

This ruling recalls but goes beyond a doctrine adopted in 2004 at the Rwanda tribunal’s sister court, the International Criminal Tribunal for the former Yugoslavia, which has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’ It uses this concept, which is so contentious that it is unconstitutional in many jurisdictions, in order to convict people of crimes when even the Tribunal accepts that they did not, in fact, commit them or that the proof is lacking to show that they did. The reasoning is that people can be convicted of crimes if they were associated with the actual perpetrators in a joint criminal enterprise. To be sure, all criminal jurisdictions recognise the criminal liability of aiding and abetting — the man who keeps a look out while his friend burgles a house is as guilty as the burglar himself — but the Yugoslav Tribunal casts the net of ‘joint criminal enterprise’ so widely that it allows convictions as primary perpetrators even for people who neither committed nor intended to commit the acts in question. On 19th March 2004 the Appeals Chamber ruled that

‘The third category of joint criminal enterprise … does not require proof of intent to commit a crime…’.

In June of the same year, it specifically applied the same doctrine to genocide, in spite of the fact that its statute also defines the crime in the same way as the Rwanda Tribunal’s statute does.

In other words, international tribunals have abolished the very thing which criminal trials are supposed to be about. If you can be convicted of a crime as a primary perpetrator for something which you neither committed nor intended to commit, and if mens rea can be ‘established’ by judicial ruling, then while it may be true that nation states sometimes abuse their criminal justice systems for political ends (such as when they lock up or execute enemies of the regime) the danger is even greater with international tribunals. Detached from any of the potentially moderating influences which exist in all national courts, such as popular pressure, culture or precedent, international tribunals are a law unto themselves. The collective professional belief of their officials and judges that they are engaged in forging a new and superior judicial order has led these two courts to tear up the established rules of civilised criminal justice systems, introducing into the heart of their systems measures which are the very hallmark of dictatorships.[2]

[1] ICTR Appeals Chamber takes Judicial Notice of Genocide in Rwanda

The Appeals Chamber of the International Criminal Tribunal for Rwanda on 16 June 2006 ruled that the Trial Chambers must take judicial notice of the following facts:

(i) The existence of Twa, Tutsi and Hutu as protected groups falling under the Genocide Convention;

(ii) The following state of affairs existed in Rwanda between 6 April 1994 to 17 July 1994: there were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification.

During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to person[s] perceived to be Tutsi. As a result of the attacks, there were a large number of deaths of persons of Tutsi ethnic identity;

(iii) Between 6 April 1994 and 17 July 1994 there was genocide in Rwanda against Tutsi ethnic group.

This land mark decision was delivered by the Appeals Chamber on Prosecutor's Appeal on Judicial Notice, dated 16 June 2006, in the trial of Prosecutor v. Karemera, Ngirumpatse and Nzirorera, ICTR-98-44-AR73 (C).

The decision will have an immediate impact on the trial proceedings in the Karemera et al case, and will be felt in all of the current and pending trials before the Trial Chambers of the ICTR. Judicial notice of the above matters means that they are to be taken as established beyond any dispute and not requiring any proof.

This is one of the most significant rulings of the Tribunal, given the consequences in terms of putting the occurrence of the genocide beyond legal dispute. It can be recalled that until now the OTP has had to in each case lead evidence and prove the occurrence of the genocide. This will no longer be necessary.

In the view of the OTP the ruling should now silence the rejectionist camp which has been disputing the occurrence of genocide. By relieving the OTP of a substantial burden of proof the ruling has the potential to shorten the cases as each will essentially focus on the personal involvement of the accused person in genocide. (Comment by Chris Black)

[2] It is worth noting that this decision came on the heels of the demand by the RPF regime, several weeks ago that the Tribunal should not have to prove there was a genocide and that judicial notice should be taken of it, thus saving the RPF and the ICTR the embarrassment of admitting that there is no such proof. It also followed closely a meeting between The President of the Tribunal Judge Mose of Norway and a sitting trial judge in the Military I case, accompanied by the Prosecutor Hassan Jallow, with Condaleeza Rice in Washington, in violation of the ICTR statute's requirement that the Tribunal be independent of any national state. (Chris Black)

The editor wishes to thank Chris Black for bringing this key decision to our attention. For related stories see Who Killed Agathe? - The Death of a Prime Minister View from Rwanda: The Dallaire Genocide Fax: A Fabrication[1]

Chris Black is a trial Lawyer with over 25 years experience and active involvement with many anti-war and anti-poverty groups. Since 2000 to the present, has been the lead counsel at the International Criminal Tribunal For Rwanda representing General Augustin Ndindiliyimana, Chief of Staff, Rwandan Gendarmerie. From 2001, he has been Vice Chair and Chair of the Legal Committee for the International Committee For the Defence of Slobodan Milosevic. Mr Black is a Member of the Association of American Jurists, National Lawyers Guild (USA), International Assocationa of Democractic Lawyers, Member of the Defend the Cuba Five Committee and a Member of the combined US-Canadian legal delegation to North Korea and co-author of their report re North Korea-200.

Appendix:

Statement from Roland Weyl, head of the IADL, International Association of Democratic Lawyers condemning the Tribunal genocide decision:

Droit-Solidarité vient d’être informé de l’arrêt rendu le 16 juin par la Chambre d’Appel du Tribunal Pénal International pour le Rwanda, qui déclare que l’existence du génocide doit être considérée comme un fait de connaissance acquise, que donc le Procureur n’a pas à le démontrer, et que les accusés ne sont pas en possibilité de le discuter.

Nous n’entendons pas ici prendre position sur la question de fond (savoir si la tragédie du Rwanda relève de la qualification juridique de génocide). La seule question est de savoir si des accusés peuvent se voir interdire de débattre de quelque aspect que ce soit des bases juridiques de la qualification pénale dont ils sont appelés à répondre. L’exigence du droit au procès régulier garanti par la Déclaration Universelle des Droits de l’Homme et le Pacte de 1966 sur les Droits Civils et Politiques implique un respect absolu des Droits de la Défense, comportant le droit pour tout accusé de discuter non seulement la matérialité des faits qui lui sont reprochés mais leur qualification juridique, ceci incluant le cas échéant le droit de critiquer et de contester la valeur juridique des textes de référence comme contraires aux principes fondamentaux du Droit.

La décision du 16 juin susvisée ne peut être appréciée que comme gravement contraire à ces principes essentiels relevant des garanties fondamentales en matière de Droits de l’Homme