Recent statements by former chief prosecutor Louise Arbour call for justice for convicted persons of the International Criminal Tribunal for Rwanda (ICTR)

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“Kagame government blocked criminal probe”, Former Chief Prosecutor Louise Arbour said to The Globe and Mail: News, 26 October 2016

  1. Former Chief Prosecutor of ICTR Mrs. Louise Arbour provided journalists and researchers Michelle Zilio and Geoffrey York who published in “The Globe and Mail of October 26, 2016” some of her admissions. Her statements can easily be characterized as admissions since she recognizes the serious weaknesses of her office towards the government of Paul Kagame. These have resulted in harmful accomplishments as regards justice for the Rwandan people.
  1. It must be pointed out at the outset that these admissions are not extraordinary because they relate to facts known to all and they have been already issued by her successor, Carla del Ponte. But they are worth their weight in gold given the identity of their author and her unsuspected achievements in international criminal justice. There would be good reason to say a lot about the damages of Louise Arbor’s work on justice at the ICTR, but in this paper, we will confine ourselves to describe them in part and to indicate what is still possible to be saved in that matter.
  1. As a preliminary note, let us mention that Louise Arbour fulfilled a mission entrusted to her when she was appointed on 1 October 1996 to serve as Chief Prosecutor of ICTR. Her appointment was a mark of hypocrisy by the Clinton administration, which often had recourse to nationals of western friend countries such as Canada, in order to carry out its plans in Rwandan affairs. It is also the case of General R. Dallaire appointed commander of the UNAMIR Force, General Baril, who headed the military branch of the United Nations Department of Peacekeeping Operations (DPKO) in April-July 1994 and who is at the root of the recruitment of Colonel Dallaire for the first time in the Rwandan matters and General G. Toussignant also as the head of the UNAMIR force. All those four Canadian personalities were appointed to various positions in relation to the Rwandan tragedy at the request of US representatives, notably Madeleine Albreight, then US Ambassador to the UN.
  1. Louise Arbour was given a mission by the Clinton administration through the UN Security Council to put behind the bars all the tenors of the hutu opposition that the regime of P. Kagame could fear. This is one of the main achievements of the ICTR. The conclusion is drawn up by Thierry Cruvellier, a journalist who has covered the trials of the ICTR for six years and who noticed that the former Rwandan leaders are either in prison or feel sufficiently threatened to be prosecuted before this Court and disappear from the political scene. [1]
  1. Even if the mission entrusted to Louise Arbour is not explicitly formulated in this direction, the results of her actions let it be seen so in any case. Only the Hutu have been indicted by ICTR; all the former dignitaries not indicted have adopted a low profile, were scared stiff and did not dare testify for their former colleagues under lock and key.

6. The most spectacular gesture of the ex-chief prosecutor is probably to conceal in 1998 the UN memorandum that called into question the direct responsibility of P. Kagame in the attack of 6 April 1994 against the plane of President Habyarimana, action which triggered the genocide against Tutsis. We are precisely talking about a confession insofar as the former prosecutor changes completely her view especially as regards the investigations into the responsibility of that attack of 6 April 1994.

7. Louise Arbour was of the view surely in 1997, one year after having taken office, that the responsibility of the person who murdered the President of Rwanda took responsibility for planning and triggering the genocide against Tutsi which started on April 7, 1994. She certainly embraced at that time the version then in vogue: “The bad Hutu killed their hutu dictator president who wanted to share power with the nice Tutsi.”

8. For the Canadian magistrate, ICTR was then competent to try those responsible for the attack of 6 April 1994. But as a member of the Hourigan team named James Lyons affirms, her position about this competence changed sharply in light of the results of the UN investigation. Hourigan team is the unit of investigators to which Louise Arbour entrusted the 1997 mission to find out who shot President Habyarimana’s plane. Lyons said that the assassination of President Habyarimana “was the spark that triggered the conflagration in Rwanda and everyone at the ICTR, including Chief Prosecutor Louise Arbour, considered that the act was within the competence of the tribunal. But when we received serious testimony involving in that terrorist attack General P. Kagame, head of the Rwandan Patriotic Army, Mrs. Arbour ordered the file to be closed.”[1]

9. Since then and until October 26, 2016, Louise Arbour has not publicly reiterated her prevarication regarding the jurisdiction of ICTR.

  1. Unanimously yet, all the prosecution experts at ICTR, including the man whose report is the very foundation of the creation of ICTR Denis Ségui, have continuously recognized that the assassination of President Habyarimana was behind the massacres of 1994. The expert witness of the prosecution in Georges Rutaganda case F. Reyntjens, at the hearing of 27 November 1997, stated that the investigation had an obvious legal interest : “Those who brought down this plane knew very well what the consequences of this attack would be, and in that case would carry a legal responsibility … in the genocide. Because, knowing very well what would be the consequence, they would have triggered genocide.”[2]
  1. It is only very recently that Louise Arbour declared that the Rwandan Patriotic Front (RPF) authorities in Rwanda and “their supporters” prevented her from carrying out investigations into the assassination of the hutu President Habyarimana and into the crimes committed by RPF elements during the period of the ICTR jurisdiction. She admitted that this shortcoming remains a very serious failure of the international criminal justice. Ms. Arbour acknowledged that the government of General Kagame “could turn on and off the co-operative tap at will, depending whether they were pleased or not with the work that was being done.” In other words, she admitted that the ICTR prosecutor’s office was a hostage of Mr. Kagame’s government. Her successor Carla del Ponte made similar statements when she revealed in her book “La Traque, les Criminels de guerre et moi” that the Rwandan authorities kept under control every step of the investigations conducted by her office. Thus, questions must legitimately be asked as a result of this “quasi-repentance” of Madame Arbour.

  1. Who made the investigations into the 1994 killings in Rwanda? Who prepared the indictments presented to the ICTR judges? Who issued the list of names of the accused at the ICTR and the contents of the indictments prepared between 1 October 1996 and 15 September 1999 (date on which Carla del Ponte replaced Louise Arbour) and even afterwards?
  1. If the government of Kigali prevented the former prosecutor and her team from investigating the crimes committed by the RPF, it was in practice not possible to let them conduct investigations into the crimes committed by the other party to the conflict given the spatial and temporal configuration of the 1994 killings. Some could not go without the others! Therefore, there is only one step to assert that the ICTR prosecutor’s office, under Louise Arbour and Carla del Ponte, only picked up what one of the parties to the conflict was kind enough to give, to be specific the RPF. It is a reality known to everybody but it is only now that it is revealed indirectly by the one who was in charge of these cases.
  1. The indictments confirmed by the ICTR Judges had a special aspect. The least that can be said is that their form was fanciful and everything showed that they were not prepared on the basis of serious inquiries. Without exception, they were full of contradictions, factual errors and unlike erroneous statements that some judges openly complained about during the proceedings. Among them, Russian Judge Ostrovsky raised his voice in 2001 and said: “The accused are often charged with several dozen of allegations, but it is characteristic that the ensuing trial reveals that no crime has been committed. In addition, the prosecution often does not even bother to provide evidence on a number of counts.[1]This assertion applies not only to those acquitted by the Ostrovsky Chamber (Messrs. Ntagerura and Bagambiki), but also for almost all the accused persons.
  1. And the fanciful and untimely amendments that the judges allowed did not change anything because they were still fed by the same source: the government of Paul Kagame.
  1. Louise Arbour did not reveal the whole truth concerning the obstacles that stood against her as an investigator. For example, what she does not disclose is that the charges were not prepared by the Office of the Prosecutor of ICTR but by the office of the General Prosecutor of Rwanda. She did not dare reveal that it was up to Paul Kagame’s government to recruit witnesses for the prosecution, to run real training centers for prosecution witnesses, to make life hard for the potential witnesses for the defence or straight to kill them or to force them into exile.
  1. In summary, the reality is that Kigali government not only hindered the work of the prosecutor’s office as Louise Arbour said, but it did the job for her. It should be remembered that this was the time when the RPF authorities did not tolerate any presence of human rights monitors on Rwandan territory, where Paul Kagame even expelled the UN Human Rights Mission on 8 May 1998.
  1. For 20 years, Louise Arbour did not lift a finger about the imposed “partnership”. Her successor Carla del Ponte did not react either otherwise to this strange partnership until September 2003. At that time, she expressed the will to prosecute RPF elements suspected of having committed crimes against humanity falling under the mandate of the ICTR. As everyone knows, it was the self-righteousness of Carla del Ponte in this matter which costed her the position of ICTR Chief prosecutor as a result of her tussle with the tandem Pierre Richard Prosper-Paul Kagame.
  1. By dissecting the inventory of the fixtures of the administration of justice by ICTR, we realize that Louise Arbour is the person who has laid the most the foundations of the drifts of justice at ICTR. Her successors can be considered as “performers” in the sense that they have only implemented the strategies set up by Arbour team. Names one can give to those drifts are : guilty plea of Prime Minister Kambanda, to charge following the membership of an institution, joint criminal enterprise, judicial notice, non-prosecution of the murderers of President Habyarimana and “visible hand” of a party to the conflict in judicial cases. We call them drifts because they are actions or judicial decisions having each at its level undermined the administration of justice of ICTR.
  1. a) Guilty plea of ​​Prime Minister Jean Kambanda
  1. It is under the responsibility of Louise Arbour that the confession of guilt of the former Prime Minister was snatched on April 28, 1998, the date of the cooperation agreement. It was the result of a high rigging flight! The agreement signed between Jean Kambanda and the deputy of Louise Arbour, the Cameroonian Bernard Muna, was supposed to facilitate the prosecutor’s task, to wash away Kagame and his acolytes of any sin. Kambanda’s admissions had to be regarded as a judicial notice and to change the course of the ICTR’s judicial proceedings. In more concrete terms, the agreement involves all members of the interim government, all prefects, burgomasters, military leaders and all the existing decisionmakers between 9 April and 17 July 1994, as well as those responsible for the media. Kambanda admitted that all the actions taken by him and by all his subordinates, civilian and military, were part of a plan to exterminate the Tutsi and the “moderate Hutu.”
  1. Without emotion and manipulated by Louise Arbour team, before the judges on 1 May 1998, the former head of government confirmed the content of the agreement and pleaded guilty to all the charges against him, including the genocide against the Tutsis.

22 . But later on, after being sentenced to life imprisonment, Kambanda denounced in many of his ensuing writings the outlines of his confession and his trial. In particular, he fought against his special detention with the police officers of the prosecutor, the Canadians P. Duclos and M. Desaulniers, as the only frequent visitors during the negotiation of the agreement. Kambanda also denounced the absence of legal counsel of his choice or only the presence of a council hired by the prosecutor. Most recently, in his book, “Rwanda face à l’apocalypse de 1994“, he concludes: “The Interim Government, for its part, I do not want to say that it bears no responsibility. It has been deficient in the protection of its people, all the ethnic components of the population. But as I have already indicated, it has never officially given support to the massacres. All the orders it did give were intended only to stop the massacres and to punish the killers whoever they could be.”[2] The very opposite of the co-operation agreement and the admission of guilt!

  1. Now that all the ICTR judgments have been rendered, a certain diagnosis can be made. The agreement allowed the prosecutor to achieve its goals only very partially since Kambanda subsequently refused to appear as a prosecution witness. Also, the prosecutor failed to let admit as exhibit the guilt plea in any case before ICTR. But the sentencing judgment of the former Prime Minister served as a basis for formulating the conspiracy to commit genocide and it was opposed to many accused during the trials. The spirit and the content of Jean Kambanda’s confession of guilt undoubtedly influenced the ICTR judges and especially the public opinion. It is on that basis that there was a firm belief that the genocide against the Tutsi was planned by the party to the conflict in the box and that the interim government carried it out.

24. Kambanda’s admission of guilt has never been questioned by the Tribunal and it remains a real drift of justice. It can not be to the credit of the international justice. The content of the agreement was completely false, a one-sided contract and it reveals how the working methods of Arbour team were dishonest!

  1. b) To charge following the membership of an institution
  1. To be prosecuted by the ICTR, one had necessary to be a representative of a Rwandan lawful institution in 1994, to refuse to cooperate with the prosecutor’s office and the RPF regime and especially to be pointed at by the government of Paul Kagame. It is Louise Arbour herself who will develop and implement the strategy to indict in this way. The chief prosecutor indicated that her strategy of investigation was to redefine the inquiries in such a way that responsibilities be better distributed among the military, militias, interim government, political parties and national, regional and local administrative institutions.
  1. Whenever the Chief Prosecutor had to disclose her strategy to indict individuals, she indicated that she was following a precise pattern, institution one after another[1]: “We have decided – and I hope this will be demonstrated in short term by the introduction of indictments – to revisit investigations so that we can obtain a fair representation of responsibilities at a national level. It is very difficult to give percentages now, but the aim is to get in a few coming months, when we take a total inventory of the charges already set out and those to come, at least 60% of the accused representing a responsibility at the country level.”[2] The indictments were thus based on quotas, which is unacceptable if justice was to be rendered.
  1. The ICTR prosecutor’s office through the government of Paul Kagame therefore targeted the institutions, invented the crimes and furnished the indictments with real or false individual facts in order to comply with the criminal law. [3]The procedure was the same for individual cases: institutions are targeted first and then individuals as representatives of institutions. Their indictments are then completed in the third phase. As for the joint cases, there were end-to-end erroneous statements and extremely surprising allegations against individuals. The lie infinitely inexhaustible that characterized Paul Kagame’s government in other areas is found fully in the indictments of the ICTR.
  1. The drift which undermined the administration of justice is as Louise Arbour herself declared it to the newspaper Ubutabera of June 4, 1998: to bring to the bar representatives of institutions. And the judges have given him reason even if it is not institutions that have been formally tried. This means that the ICTR pursued political goals above all. The ICTR tried to legitimize, strengthen and protect the government of Paul Kagame by bringing to justice representatives of institutions and by giving them heavy prison sentences.
  1. c) Joint criminal enterprise

29. The application of the “joint criminal enterprise” theory as a basis for the ICTR judgments is also a creation of the prosecutor’s office under Louise Arbour. But it was only with her successor that this form of commission was formalized on the occasion of the ludicrous amendments that the prosecutor regularly submitted and obtained. Thus Kayishema and Ruzindana were charged with “collective enterprise for extermination”, while those who appeared long afterwards were formally accused of belonging to several “joint criminal enterprises” as mode of commission (Karemera, Semanza, Ntawukuliryayo, Hategekimana, Kanyarukiga, Gatete, Munyakazi, Ngirabatware, Ndahimana, Nizeyimana, etc.).

  1. In 1997, Chief Prosecutor L. Arbour attempted to demonstrate that the genocide of the Tutsi was the result of a joint criminal enterprise and thus planned by the persons already charged or those she intended to accuse. Initially, the wish of Ms. Arbour and her team was to obtain from judges only “mega-trials”, that is to say trials gathering dozens of people who should appear the same time as members of a purported joint criminal enterprise. The strategy envisaged was to pursue groups comprising dozens of people who had belonged at the highest levels to political, military, economic or media institutions. The prosecutor failed to validate the “big indictments” strategy before the chambers. On 8 June 1998, the Appeals Chamber dismissed her “mega-trials” motion and then she withdrew to the solution which was eventually adopted : indictments on a thematic or geographical basis. This resulted in the following photograph : for all the accused at ICTR, 34 people were initially brought together in joint trials and all, during Louise Arbour tenure. Out of the 61 persons convicted by the ICTR, 23 individuals were initially tried jointly, 27 in individual trials, 2 were convicted of contempt and 9 pleaded guilty on an individual basis. Dozens of defendants appeared alone because they were not included in the groups. One was incorporated into a group following the progress made in the proceedings on the day of arrest.
  1. After having obtained from the judges the right to divide up the “big indictments”, the prosecutor apparently sought to demonstrate that the genocide against the Tutsi was not the result of a huge conspiracy, but of a conspiracy in small groups, in the framework of several joint criminal enterprises. As mentioned above, even those who were arrested later and therefore prosecuted one by one, they saw the joint criminal enterprise as mode of commission of the crime affirmed as a result of amendments of the indictments.
  1. The prosecutor had recourse to this mode of charge because it is extremely difficult to criticize him in the implementation due to its unlimited vagueness. The joint criminal enterprise is used because it is a “catch-all” and the prosecution can be theoretically right on everything. The mode has earned the name of “magic weapon” in the prosecution of violations of international humanitarian law.[1]
  1. Indeed, ICTR prosecutor had recourse to the joint criminal enterprise mode when he was unable to give the identity of the victims, to indicate the number of deaths, to specify the exact circumstances of the murder or rape. It was also an excellent “magic weapon” to circumvent the alibi since theoretically it is not necessary for the accused to be on the spot, nor to be aware of the precise crime. The theory of joint criminal enterprise does indeed allow all this, even if some jurisprudence says nowadays the contrary! [2]When the prosecutor could not impute precisely and personally facts to an accused, he used the joint criminal enterprise because it allowed him also to establish the collective responsibility of the co-defendants without needing to specify their actions or who they are.

34. The persons convicted through the joint criminal enterprise as mode of commission of crime were found guilty with those notorious inaccuracies allowed by this “magic weapon” of criminal law. It is at this level that this mode constituted a drift that undermined the justice at the ICTR. Also, the joint criminal enterprise has as assumption the existence of a “common plan” to commit the crime. For the genocide against Tutsi, the ICTR judges concluded that the prosecution did not demonstrate the existence of such a plan before 7 April 1994 by the individuals in the box. The ruling given in the trial of the MRND leaders is explicit: “The Prosecution has not proved beyond reasonable doubt that Karemera and Ngirumpatse, or other leaders, planned the massacre of Tutsis in advance of the assassination of President Habyarimana.”[1]

  1. These are the two important arguments (notorious vagueness and inaccuracies and lack of a “common plan”) that support the invalidity of the convictions by ICTR Chambers with the joint criminal enterprise as a mode of committing genocide against Tutsis.
  1. d) Judicial notice: Genocide against Tutsi and non-international character of the Rwandan conflict
  1. The “judicial notice” was aimed at bringing all the Chambers and the parties to admit that crimes and situations related to res judicata are public knowledge and that the evidence and the adversarial debate were not necessary.
  1. Concretely, ICTR admitted and allowed to be admitted without adversarial debate or evidence:

– that genocide had been perpetrated in Rwanda between 6 April 1994 and 17 July 1994 against the Tutsi ethnic group. The corollary of this alleged finding is to ignore all about the genocide or serious violations of international humanitarian law committed against the Hutu ethnic group. The drift was that a part of the Rwandan population was presumed guilty;

– that throughout Rwanda, between 6 April and 17 July 1994, widespread or systematic attacks were directed against a civilian population based on Tutsi ethnic identification. These attacks resulted in the death of a large number of people belonging to the Tutsi ethnic group. The corollary of this admission is that what was a real genocide against the Hutu ethnic group was quickly transformed into “revenge”, all this with the aim of not to accuse the incumbent authorities of Rwanda;

– that between 6 April 1994 and 17 July 1994, there was in Rwanda an armed conflict that was not of an international character. The corollary of this finding is, for example, that the Rwandan Patriotic Army (RPA) did not have its backs in Uganda, that Ugandan soldiers were not engaged in the war in Rwanda and that the missiles that shot down the Rwandan presidential plane on 6 April 1994 were not part of the arsenal of the Ugandan army.

  1. Judicial notice was pronounced by ICTR, but in reality one can sustain that it has its source in Resolution 955 of the UN Security Council which creates the ICTR. Of course, the court was given the mandate to try those responsible of “acts of genocide” and not “genocide against Tutsi”. Similarly, the court was not mandated to try only members of the Hutu ethnic group. But the Resolution is based at the first level on the Reports of the Special Rapporteur of the United Nations Commission on Human Rights for Rwanda which clearly charges of genocide against Tutsi “the Hutu in power, representatives of an ethnic group formerly dominated that use all means and mainly the elimination of the opposing group … [2]

39. In creating the ICTR, the UN Security Council based the Resolution and the Statute on the aforementioned Deni Segui reports and welcomed the work done by the Commission established by its Resolution 935 (1994), as set out in the letter of the Secretary General dated 1 October 1994 (S/1994/1125). However, all the aforementioned reports and letters already accused the Rwandan government, the Rwandan Armed Forces, the leaders of  some political parties, the militia and others of acts of genocide. On the other side, they grossly minimized serious violations of international humanitarian law and crimes against humanity against the Hutu committed by the RPF elements. The authors have admitted that the investigations into these latter crimes have not been conducted and recommended that they be investigated further by the Prosecutor.[1] While the rapporteur and the experts presented the violations committed by the RPF elements as revenge, they presented those committed by the other party to the conflict as a “planned genocide”. The ICTR Statute was prepared under the assertions displayed by the Special Rapporteur and the UN Experts who had carried out investigations only on the side of one party to the conflict. Those assertions became later on de jure the  so called “judicial notice”.

  1. All the indictments confirmed and consequently all the international arrest warrants issued by ICTR judges were based on the Statute of this Tribunal whose articles are referred to. The indictments and the history of the events adopted by the Prosecutor and endorsed as such without open debate by the judges reflect only the analysis and the favourable opinion to RPF and its accomplices.
  1. On 26 June 2006, a decision was taken by ICTR following the Prosecutor’s appeal of the judicial notice decision in Karemera et al. Previously, ICTR judges had taken their decisions and rendered judgments in the spirit of this same judicial finding, whereas the prosecutor had a real job proving that a genocide against only the Tutsi ethnic group had been perpetrated in Rwanda in 1994. In reality, the judges found themselves in a legal embarrassment and discomfort since the UN Security Council had usurped the jurisdiction of a court by “decreeing” and incorporating the genocide in the statutes of the ICTR, implied the genocide against Tutsi. Everything was tampered with ICTR: on one hand, the judges had to hold the genocide against the Tutsi as a statutory observation and on the other hand, they knew that this genocide was not the conclusion of a Court. That is the reason why it was necessary to give support to the prosecutor in his impossible tasks and to resort to the judicial notice.
  1. As suggested above, the decision of 26 June 2006 was a formalization of the premises being at the foundation of the trials held at ICTR, inasmuch as the accused hutu were not entitled to an open debate upon the characterization of the crime of genocide against the Tutsi they were accused of. This is valid from the first ICTR trial, that is to say Akayesu whose judgment was rendered on 2 September 1998 until the trial of Ngirabatware, whose judgment was the last to be pronounced by ICTR on 20 December 2012. In the trials held after 26 June 2006, the prosecutor has always requested the Trial Chamber and obtained that those facts of “common knowledge” according to the ICTR be admitted by the parties without evidence or adversarial debate.
  1. Regarding the second element of the judicial notice which drew our attention, namely the existence in Rwanda between 6 April 1994 and 17 July 1994 of a non-international armed conflict, the accused never obtained either an adversarial debate. It is now clear that the Security Council and subsequently the ICTR have adopted that characterization despite all the existing evidence to the contrary. ICTR therefore held its trials assuming that the serious violations of international humanitarian law committed in Rwanda were unrelated to the war launched by the Ugandan regular army (NRA) and the RPA, an outgrowth of the former. The evidence and events that took place while the ICTR was conducting its trials prove that this premise was false.

44. At the end of all ICTR trials, the evidence provided by RPA combatants and Paul Kagame himself that there was an international armed conflict in Rwanda is abundant. Apart from the evidence provided by Abdul Joshua Ruzibiza,[2] the most impressive is the statements made by General Kagame himself. For example on July 7, 2009 and July 7, 2010 when he presided over the medal ceremony aimed to thank the countries and personalities that helped him to win the war. The top honors were Ugandan President Museveni, Maria Nyerere the wife of late Tanzanian President and Ethiopian President Meles Zenawi. Similarly, recent claims for allowance submitted to the government of Paul Kagame by the Ugandan Retired Military Association constitute also irrefutable proof of the international character of the Rwandan conflict.

  1. It is therefore legitimate to request for a review of all convictions based on these premises of Tutsi genocide and non-international character of the Rwandan conflict between 6 April and 17 July 1994. These premises, which became a judicial notice, were adopted without open debate and on the basis of expert reports favorable to one party to the conflict. The genocide against the Tutsi ethnic group and the genocide against the Hutu ethnic group are indisputable if one strictly applies the definition of these crimes as set out in the 1948 Convention on Genocide. There is no legal basis from the observation of massacres of 1994 to find a genocide against the Tutsi and not a genocide against the Hutu. But it was important that both be a conclusion of a court, after an adversarial debate. Only under these conditions, the planners and perpetrators of these two genocides could have been known. ICTR did not succeed to cast new light on that and this constituted a drift that undermined not only the administration of justice but also the reconciliation between Rwandans. As for the finding that the Rwandan conflict was not an international one, it constituted also a drift which undermined the administration of justice of the ICTR since it protected non-Rwandans who committed serious violations of international humanitarian law. For example, Ugandan president Museveni who violated Rwanda’s sovereignty, planned and maintained a war for almost four years, culminating in the genocide against Hutu and the genocide against Tutsi, had not to be excluded from ICTR prosecutions.
  1. e) Burial of the investigation into the assassination of President Habyarimana
  1. It was under the authority of Louise Arbour that the investigation into the attack of 6 April 1994, which triggered the genocide against Tutsis and other violations of international humanitarian law, was initiated but also buried. While Arbour, since 1998, after receiving the results of the investigation, said that the prosecution of the assassins of President Habyarimana was not within the mandate of ICTR, she is now sweeping away her assertion. She is claiming now that nothing has been done in that direction because her office had neither the capacity nor the resources to carry out the task. But she also states that she was prevented from working by the government of General Kagame and its supporters.
  1. The former ICTR Chief Prosecutor now correctly states that credible allegations against members of the RPF for the crimes committed during 1994 and for the bombing of the President’s plane have been fired everywhere for a very long time and repeatedly. She regrets that 22 years after the creation of the Tribunal, it has not yet taken any action in the area of ​​justice. As stated above, Ms. Arbour told The Globe and Mail.com that the failure to indict those responsible for the attack on the presidential plane in 1994 remains a serious failure of the international criminal justice system.
  1. This is where the revelations of Louise Arbour are worth their weight in gold insofar as she was on a commissioned mission from the American administration, as we are already aware of. But it would have been more honest and logical for her to add, given the context in which the trials took place, that the injustice caused has to be redressed by a new legal action, the one that should have preceded all the others. Here we are pointing out the prosecution of the detonator of the massacres of 1994. Mrs. Arbour should have proposed the channels for the desired reparation and the necessary legal action.
  1. The facts now allow us to say that the Tribunal of Arusha has moved away from the prosecution of the murderers of President Habyarimana because of the role played in that terrorist act and in its own affairs by one party to the Rwandan conflict, in this case Paul Kagame and his team. ICTR has refrained from accusing either those pointed by the RPF government and its sponsors. Yet the results of investigations are plentiful at the Tribunal itself, even the most simplistic and deceptive! For example, Mutsinzi Commission set up by RPF government pointed to some persons already indicted by ICTR for something else to be responsible for the assassination of President Habyarimana. [1]Why did ICTR even refuse to charge those already in the box?
  1. Nothing has been spared by the accused of ICTR to ask UN Secretary General and ICTR Prosecutor to do everything possible to bring to justice those responsible for this terrorist attack which undoubtedly falls under Article 3 of ICTR Statute. The first request of the accused of ICTR to this effect dates back to 3 June 1999 when Louise Arbour was still in office. Since then they have sent numerous memoranda to the Prosecutor and the Secretary-General of the United Nations. Many other personalities, lawyers, NGOs for human rights, the UN Commission of Experts and the Special Rapporteur unsuccessfully insisted on the need to indict the perpetrators of the attack of 6 April 1994. Various commissions of inquiry set up in the context of the tragic events of 1994 issued recommendations along the same lines. [2]
  1. The Office of the Prosecutor and the Secretary-General of the United Nations have always ignored the requirement of justice and the premise that it is “the Hutu who killed their own leader Habyarimana” has continued. However, Carla del Ponte, the successor to Louise Arbour, rightly stated in the Danish newspaper Aktuelt of 17 April 2000 that “if it were established that it was the RPF that descended President Habyarimana’s plane, the history of the genocide should be rewritten.” Without taking away the responsibility for the Tutsi massacres by the other party to the conflict, thus giving reason to Carla del Ponte when she made the aforementioned statement, we conclude that there are all the reasons to sustain that the condemnations of the genocide of Tutsis be also “rewritten” in the light of all the solid evidence at the disposal of ICTR in 2016.
  1. f) The “visible hand” of one party to the conflict in the ICTR matters
  1. RPF government intervened in ICTR affairs from the beginning up to the end. The interference has materialized at all levels of the proceedings. One of the most spectacular interventions known to everybody was probably the one that led to the revision of the decision of the Appeals Chamber to release Jean Bosco Barayagwiza. Rwandan government objected to the decision of 3 November 1999 releasing him and the Appeals Chamber reversed its own decision to release him without further ado. The review was reached only on the basis of a strong “no” of the Rwandan authorities and a simple intention dated 19 November 1999 from Prosecutor Carla del Ponte to file a motion for review. The hearing which took place on 22 February 2000 was purely a gesture for the sake of appearances.

53. Maybe it can not be said so regarding the final deliberations of the judges because there is no conclusive evidence, but it was obvious to all the other stages of ICTR affairs that the government of Paul Kagame influenced their course and purposes. Nevertheless, one of the welcome conclusions is that the Tribunal did not yield to pressure from the Rwandan government and its supporters regarding one issue. It was a conclusion of ICTR that there was insufficient evidence that the party to the conflict to which the accused belonged had planned the genocide against the Tutsi. This, however, is still the strongest wish of Paul Kagame and his sponsors.

  1. On the level of the pre-trial investigation of the cases, one can not even speak of interference, since it was above all the business of the government of Paul Kagame. Louise Arbour and Carla del Ponte have admitted that without having to spell things out. At ICTR, there was no way to charge a person without the express wish of the Rwandan prosecutor’s office. [1]
  1. Ms. Arbour now corroborates her successor by stating that the prosecutor’s office was in constant conflict with the government of Paul Kagame. She confirmed that her office could not investigate the members of this government and that the investigators had no freedom of movement. The logical conclusion that one should draw is that the same office could not either investigate the other party to the conflict (the government at the time). As mentioned above, ICTR Prosecution Office was content with what the government of Paul Kagame was good enough to give. The statement of former chief prosecutor Arbour to The Globe and Mail.com of October 26, 2016 says nothing else in barely veiled words: “So even in the genocide prosecutions, we were very often – regularly – in conflict with the government, whom we would have thought would have been supportive of our work. So you can imagine what kind of situation we would have been in, sitting in the country needing visas to come in and out. … None of that was feasible without the full co-operation of the government.”
  1. The other level of the notorious interference of RPF government is that of the preparation of witnesses. Regarding the witnesses of the accusation, there is abundant evidence at ICTR about how they were recruited and trained especially in prisons prior to their interview with ICTR investigators. It was a real market in Rwandan prisons. Those who accepted to testify in Arusha, especially against the dignitaries of the late regime, had a promise of release or reduction of sentences and were imprisoned under better material conditions. At Gisenyi prison for example, they were directed to the privileged blocks (food, non-promiscuity and outings). It was not a secret that prosecution witnesses with freedom of movement were also summoned by the local prosecutor, trained in his premises or in the IBUKA centers.
  1. Defense witnesses have often been subject of threats. Many were imprisoned. Many were brought before the gacaca courts before or after their testimony in Arusha while others were murdered or were reported missing. The fate of disappearance or insecurity was therefore not only the occurrence of those who incriminated Paul Kagame and his accomplices, but also those who had agreed to testify for the defense in Arusha. The work of exfiltration of witnesses for the defense by ICTR registry had reached its limits. As for the Tutsi who had decided to testify for the defense in Arusha, they were previously summoned and arrested by the local police. They were often excluded from IBUKA association after having given their testimonies and have seen the benefits reserved for the Tutsi withdrawn (example : FARG). What we need to emphasize here is that all those operations to prepare the witnesses or the multiple obstruction of the testimony by the Rwandan authorities were well known to the Office of ICTR Prosecutor.
  1. There was in the midst of the Tribunal a representative of the government of Paul Kagame whereas the admission of this “ambassador” was not authorized by any text of the Statute or the Rules of the Tribunal. Many voices were in vain raised to castigate the new institution not provided for by the statute.[2] The “headquarters agreement” was signed in mid-October 1999 and the first person to hold the position was Martin Ngoga who had not hidden his government’s intention. Indeed, he said: “We have decided not to be a spectator anymore but to join the Tribunal and operate from within …”.[3]
  1. The non-statutory role that the government of Paul Kagame, a party to the conflict, played to the full and ultimately in ICTR proceedings could only be detrimental to the interests of justice. The necessary linkages between the Rwandan representation and the registry, not to mention those inevitable with the prosecutor’s office, undermined the justice. In addition, the representation emanated from a government led by a team whose some members were subject to trial before the international court. This drift in the appointment of a representative of Paul Kagame with the ICTR was added to another, a “legal” one because it was authorized by the Security Council: the Office of the Prosecutor in Kigali (operative under paragraph 6 of Resolution 955) gave the RPF government the opportunity to influence the conduct of investigations and to give them a partisan orientation.
  1. Justice and righteousness mean independence of the judges. As we have seen from the statements of Louise Arbour and Carla del Ponte, the prosecutor’s office has never been independent of Paul Kagame’s government. As far as judges are concerned, we do not want to talk about the way in which ICTR was established, which prohibits it from being independent of the UN Security Council, and therefore of the permanent member states. The independence we are talking about here is that of the judges with regard to the government of Paul Kagame. Officially, there were very close relations and indeed, as we have observed, they were materialized by frequent working visits paid by Presidents of ICTR to the Rwandan authorities. The working relationship between persons in charge of a court and the persons subject to trial before it cannot find a justifiable explanation.
  1. Many people may recall that ICTR judges also entertained impunity in other ways. For example they refused the defense to raise or to debate about anything that could constitute evidence of the genocide committed against Hutu and other crimes against humanity committed by RPF elements. They have often concealed reports or information involving RPF and its accomplices. For example, Tribunal President Navanethem Pillay embargoed the Michael Hourigan report designating Paul Kagame as the person who gave the order of the assassination of President Habyarimana. She decided on the embargo as soon as she had received the report from UN Secretary General while the Defense Counsels had filed motions to make it public.[4] Also, as discussed above, a sacrilege was almost always decreed by judges whenever the accused called for an exhaustive investigation into the assassination of President Habyarimana. The position of the judges was unfair and even illogical, because this act was considered by all to be the element that had triggered the genocide of the Tutsis the defendants were accused of.
  1. The Government of Rwanda has managed to take control of several employees of the Tribunal. There were many who acted against justice by kindness towards people of Tutsi ethnic group, others by fear or personal sympathy of the Rwandan authorities, or simply in return for payment. The Rwandan authorities have even resorted to intimidation, threats and killings, particularly against defense investigators. [5]

WHAT TO DO CONCRETELY BEFORE THOSE DRIFTS WHICH DID CHARACTERIZE THE JUSTICE RENDERED BY ICTR ?

  1. What should be done to let the mission initially assigned to this Tribunal more or less fulfilled? This implies necessarily both the revision of all the sentencing judgments rendered by the ICTR and the indictment of the elements of the other party to the conflict. This requires courageous, strong and impartial action from UN Security Council.
  1. To achieve these seemingly impossible goals, it is necessary firstly to reread the mission that had been entrusted to ICTR in relation to the results achieved, without complacency or falsehood! This rereading should be done, in particular, in the light of UN Security Council Resolution 955, the ex-ante and ex-post reports regarding ICTR and those UN Secretary-General submitted to the higher organ in the past. It would be also necessary to dig up all the many reports that were automatically hidden at or by the UN General Secretariat and which involve Paul Kagame and his fellows in the genocide against Hutu and the genocide against Tutsi. For example, Gersony Report, Hourigan Report, Special OTP/ICTR Investigations, UNHCR Report of May 1994, memoranda prepared by ICTR detainees and other human rights NGOs would be useful.
  1. Anyone who will engage in this exercise will realize that those convicted by the ICTR have not received justice because their trials have been conducted on false premises and that the other party to the conflict, that means the government of Paul Kagame and his allies, influenced the processes from end to end.
  1. Anyone who will engage in the proposed exercise will realize that ICTR prosecutors have been either, puppets of the government of Paul Kagame and his allies, or their accomplices and that they have been followed by judges on many points. The only prosecutor who has wished to distance himself slightly from this government has paid for her firm will to do justice from that time. That is Carla del Ponte who was the ICTR chief prosecutor from 15 September 1999 to 28 August 2003.
  1. The suggested rereading of the mission and accomplishments of the tribunal can only be done by an International Independent Legal Commission for Rwanda (ILCR) that the United Nations Security Council alone can create. It may establish it under Chapter VII of the Charter of the United Nations as it has proceeded in the legally debatable manner to establish ICTR. The aim is to make a proposal for true justice in the Rwandan matter of 1994. Once the rereading will be made, the ILCR will have to explain why the prosecution has, throughout the ICTR trials, struggled to argue its indictment on the premeditated genocide against Tutsi. ILCR will have the capability to argue why genocide against Hutu was precluded from ICTR affairs. Once the rereading will have been done, ILCR will finally be able to draw the necessary conclusions regarding ICTR judgments and to make proposals for the reparations and the new actions for justice.
  1. What is put forward here is nothing new, or at least, it has its foundations in the very affairs of ICTR. ICTR professors and lawyers Erlinder and Tremblay have already submitted to the UN in January 2007 a petition calling for the suspension of the ICTR proceedings. Our suggestion has some similarities to their, with a different arrangement given the time lag between the two proposals. The revision of all the completed cases, as well as the prosecution of the crimes committed by the former rebellion then in power RPF, are the main features of the two proposals.
  1. The approach adopted by Professors Erlinder and Tremblay first noted that all the accused of ICTR were mistakenly charged with crimes for which RPF elements had full or partial responsibility. They demonstrated that it was not possible for ICTR to continue its work with credibility without prosecuting those who bear the primary responsibility for the massacres of civilians in Rwanda in 1994. The two lawyers had also asked the UN Security Council to extend the mandate of ICTR so as not to ensure impunity of Paul Kagame and the members of his government.
  1. The suggestion to retry ICTR convicted persons was also made in mid-term by Bernard Lugan, an on-oath expert before ICTR, in light of new elements: “The prosecutor before the ICTR is therefore placed in an untenable legal position. Let us imagine that he is revising his indictment, taking into account the new elements that have appeared on the record in recent years. He would then have to abandon most of the prosecutions and request that a number of convicted persons be retried. As he refuses to follow this approach, which would yet honor him, he is bound to withdraw to what must be qualified as tripatouillage. [6]
  2. Now that the trials are over, a more complete rereading of Rwandan tragic events of the year 1994 than that made by Erlinder, Tremblay, Lugan and others is possible. More evidence has been adduced in ICTR cases and therefore a better proposal to achieve true justice can be advanced.
  1. It was created in April 2016 in Toronto, Canada, a group of lawyers, Rwandans, Burundians, other Africans, Europeans and Americans, who in turn established a network in support of the political prisoners of ICTR and other political prisoners in Rwanda, Europe and North America. They called their network “Rwandan Political Prisoners Support Network (RPPSN)“. Its aim is to free these prisoners and their rehabilitation. Their Network Website is http://rappr-rppsn.org/home/.
  1. The association is very courageous and has laudable and equitable goals since it dares to defy the single thought and to denounce the abuses of the most powerful persons of this world within the international criminal justice. Concretely, the association should be backed up to bring a proposal to UN Security Council along the lines of the creation of the aforementioned International Independent Legal Commission for Rwanda (ILCR). We know that the road is bristling and that the way will be long because of the “negative forces” that will not fail to stand against the proposal. We do know already that by inviting the Mechanism for International Criminal Tribunals (MICT) to just complete the cases of ICTR and therefore to bring to justice only the persons already indicted by ICTR, UN Security Council has acted as if this tribunal had succeeded in prosecuting “all those responsible for acts of genocide or other serious violations of international humanitarian law committed in Rwanda in 1994.” This means that the “negative forces” against international criminal justice are always active. In spite of this state of matters, nothing should discourage the salutary action of preparing a motion to be filed before the UN Secretary General, to defend it and to demand justice.
  1. For this solution of justice for the Rwandans, there should be no participation of the political and judicial authorities of Rwanda in the work of the International Independent Legal Commission for Rwanda (ILCR) to be created. Those authorities constitute a party to the conflict. Government of Paul Kagame and its sponsors had established this bad type of collaboration with ICTR precisely in order to distort trials and to avoid prosecution of RPF senior leaders allegedly responsible for genocide and other crimes against humanity committed in Rwanda in 1994. The result was that instead of answering for their criminal acts before ICTR, they imposed the list of people to be arrested, tried and convicted. Their political and military opponents in short!

CONCLUSION

  1. Louise Arbour has a little bit unveiled the shortcomings or better, the harmful accomplishment of her mission in the Rwandan matter and so she completed somehow the revelations of her successor Carla del Ponte. But it would have been necessary to push the revelations a little further. She should have clearly indicated for example, that ICTR trials were conducted with false, unfair, incomplete and very biased foundations mainly because of the role played by one of the parties to the conflict and its supporters.
  1. The remedy for what can be called a “justicide” recognized by the non-partisan world and by the former ICTR chief prosecutor herself is the re-examination of all the judgments and sentencing that have been rendered by that tribunal. This remedy can only be validly administered if the UN Security Council is convinced of the failure of the judicial institution that it established on 8 November 1994. It has to be convinced first of all at least by three realities:

– that all proceedings before ICTR were based on false premises such as the only consideration of the genocide against the Tutsi at the time when the crimes committed against the Hutu were considered only as revenge;

– that the refusal of tracking down and prosecuting the perpetrators of the attack of 6 April 1994 although that act is the detonator of the 1994 massacres in Rwanda is a severe breach of international criminal justice;

– that one party to the Rwandan conflict has been operative in one way or another from within the jurisdiction as Mr. Martin Ngoga stated.

  1. Once convinced, the Security Council will necessarily launch an action as reparation for the injustice, for example by creating an International Independent Legal Commission for Rwanda (ILCR).
  1. During all the operative years of the tribunal, UN Security Council has had several opportunities to resolve this issue of injustice and selective prosecution, but it didn’t jump at them! The turn was also missed on the occasion of the creation of MICT as indicated above. The proposal which has just been formulated may thus seem naive since the same organs which are at the root of this justice of the victors, in this case the UN Secretariat General and some members of the Security Council, are the addressees and decision-makers.
  1. In spite of this sad reality, we have to be hopeful that to start justice will always be possible, especially when there must be other personalities in the same organs who love and are respectful of the values ​​of equity and justice. The only master word is: TO RESTORE with the aim to do justice.

 

Nairobi, 04 January 2017

by

Alexis Twizerimana

Former independent investigator at ICTR

 

 

[1] Thierry Cruvellier, Le Tribunal des vaincus. Un Nuremberg pour le Rwanda. Calman-Lévy, Paris, avril 2006, p. 40 ; p. 257

[2]Témoignage de James R. Lyons, cité par S. Smith, La piste enterrée par l’ONU, Libération 11 et 12 mars 2000 ; S. Edwards, Explosive leak on Rwanda genocide, National Post, March 02, 2000 ; Le Monde, M. Kagamé aurait commandité l’assassinat de l’ex-président rwandais, 11 mars 2000.

[3] F. Reyntjens cité par les Détenus d’Arusha, Responsabilités de l’ONU dans la tragédie rwandaise,  op.cit. Annexe IV, Arusha, janvier 2000.

[4] Diplomatie judiciaire, 2002.

[5] Kambanda Jean, Ed. E.M.E. & InterCommunication, Bruxelles, 2012, p. 225

[6] Journal Ubutabera le 4 juin 1997

[7] Voir interviews accordées par L. Arbour, procureur général et B. Muna, procureur général adjoint à Ubutabera, juin 1998.

[8] L. Arbour, Journal Ubutabera du 4 juin 1998.

[9] Voir Ubutabera, La nouvelle charpente de l’accusation, n° 44, 31 août 1998, p. 2-3 et p. 5

[10] Voir Ubutabera n° 44, Arusha 31 août 1998.

[11] Kai Ambos, « Joint Criminal Enterprise and Command Responsibility », Journal of International Criminal Justice, 5, Oxford University Press, 2007.

[12] Voir Prosecutor v. Kvocka et al. ; Appeal Judgment, IT-98-30/1-A, 28 February 2005, para. 28

[13]Karemera et al., ICTR Appeal Judgment, 29 September 2014

[14]Doc. E/CN.4/1995/7 du 28 juin 1994 et S/1994/1157, annexe I et annexe II.

[15]Rapport final des Experts, Doc. S/1994/1405 du 9 décembre 1994, para. 95.

[16] Voir Carla del Ponte, Interview in  émission « Envoyé Spécial », TV France 2, Paris, 26 avril 2001

[17] RWANDA. L’histoire secrète », Ed. Panama, Paris, 2005 et Exhibit 216 in Procès Bagosora et al.

[18]Ces accusés sont : Théoneste Bagosora, Anatole Nsengiyumva, Aloys Ntabakuze, François Nzuwonemeye, Joseph Nzirorera et Matthieu Ngirumpatse. Voir Rapport d’enquête sur les causes, les circonstances et les responsabilités de l’attentat du 06 avril 1994 contre l’avion présidentiel rwandais Falcon 50 N° 9XR-NN, Kigali, 20 avril 2009

[19]Rapporteur spécial de la Commission des Nations Unies pour les droits de l’Homme, M. René Degni Segui, (Rapport du 28/06/1994), la Commission d’Experts (Rapport du 9/12/1994), la Commission d’enquête du Sénat de Belgique, la Mission d’information du Parlement français et le Groupe International d’Eminentes personnalités mandatés par l’OUA, etc.

[20]Voir Interventions de Carla del Ponte et l’ex-procureur général du Rwanda Gérard Gahima, Colloque sur le TPIR, Paris, 12 avril 2014

[21]Voir Lettre des Avocats de la défense adressée au Greffier du TPIR, Arusha, le 26 octobre 1999.

[22]Ubutabera, n° 73 du 25 octobre 1999, p. 8 Fin 2003, Martin Ngoga a été remplacé à son poste et nommé procureur général adjoint à Kigali.

[23]Déclaration de Madame Navanethem Pillay, 7 avril 2000, ICTR/info-9-2-228sta.Fr. Voir aussi Bernard Lugan, « Rwanda. Contre-enquête sur le génocide », Ed. Privat, 2007, p. 257

[24]Voir André Sirois, « 20ème anniversaire du TPIR: les célébrations sont-elles justifiées? », Mondialisation.ca, le 10 novembre 2014 ; Voir aussi Présidence de la République, Lettre du gouvernement rwandais au Président du Conseil de Sécurité, Kigali, le 26 juillet 2002

[25]Agence Hirondelle d’information, de documentation et de formation, Arusha, (Tanzanie): News, www.hirondelle.org, 30 Janvier 2007

[26]Bernard Lugan, « Rwanda. Contre-enquête sur le génocide », Ed. Privat, 2007, p. 260

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