Debate about the quest for justice following the Rwandan genocide of 20 years ago continues. A former defence counsel at the International Criminal Tribunal for Rwanda (ICTR) adds his voice, responding especially to former Prosecution official Alex Odora-Obote’s defence of the Tribunal.
The sweeping indictment of former ICTR defence counsels in Alex Odora-Obote’s reply is unjustified and unwarranted. Being one of the former ICTR defence counsels, I feel compelled to react to this disingenuous and unwarranted attack. I would have ignored the attack but for its potential to mislead as well as the mischief it may create in the minds of readers about the former ICTR defence counsels.
Alex Odora-Obote concludes his reply to Peter Erlinder and Christopher Black with a sweeping indictment of former defence counsel at the ICTR thus: “The position that whenever a prosecutor makes decisions that are unpopular to the defence counsels, then such decisions are political is bizarre. Overall, it is helpful for ICTR defence counsels, including Erlinder and Black, to separate legal issues from their political views about Rwanda. The OTP works within a legal framework as provided in the Tribunal’s Statute and nothing more”.
The charge made against defence counsels at the ICTR is not new. Over the years, the Government of Rwanda and IBUKA Victims’ Association have made similar allegations, accusing the defence of expressing political views about Rwanda that were inconsistent with the law, using surprisingly similar language. They have relied on this unfounded allegation to blackmail former defence counsels at the ICTR as genocide deniers or peddlers of the double genocide ideology.
This allegation, which is in bad taste, is made each time former defence lawyers at the ICTR articulate arguments relating to critical legal and factual issues which they litigated in the exercise of their mandates. The latest charges were made by the High Commissioner of Rwanda to Tanzania during the celebration of the 20th Anniversary of the ICTR on 7 November 2014 in Arusha, Tanzania, and on several occasions by the Representative of Rwanda at the UN.
The blackmail occurs, in particular, each time acquittals that negate the official narrative of Rwanda about an alleged pre-planned genocide of the Tutsi from 1958 are entered. Trial and appellate judges have not been spared this blackmail each time acquittals, in particular, on the count of conspiracy to commit genocide are entered. A recent example is the petition IBUKA addressed to the UN Security Council accusing the Judges of the Appeals Chamber of the ICTR of supporting genocide denial in acquitting General Ndindiliyimana and Nzuwonemeye in the Military II trial on all counts that included the count of conspiracy.
The similarity in language alleging political rather than legal arguments in arriving at the acquittals and the allegation made here that defence counsels at the ICTR articulate political as opposed to legal arguments is troubling. This development is troubling in that no other former member of the OTP had made this sweeping charge against former defence counsel at the ICTR when a discussion concerning matters that were amply litigated before the Tribunal are made. Alex Odora-Obote could have made his arguments without resorting to this inappropriate, sweeping and unwarranted allegation against professional lawyers who contributed so much to the development of international law.
A perception may have been created that Alex Odora-obote is explaining the motivation of the prosecutor in not pursuing the investigations which Louise Abor halted into the terrorist attack that claimed the lives of two presidents and the plane’s crew. Whatever the perception his statements may create, the reasons provided by the prosecution investigators about why Louise Abor halted the investigations into the terrorist attack were not founded on lack of jurisdiction. To the contrary, the terrorist attack occurred on the 6 April 1994, within the temporal jurisdiction of the Tribunal, from January 1, 1994 to December 31, 1994. The prosecutor in Semanza and a number of early trials before the Tribunal alleged that the shooting down of the plane was the “powder keg” that ignited the conflict that resumed shortly after and the crimes that were perpetrated. This and other allegations in the trial indictments established a firm nexus between the terrorist attack, the war and the crimes that occurred. The Trial Chamber in Semanza citing the appeals jurisprudence of the International Criminal Tribunal for Yugoslavia (ICTY) held that “the nexus requirement is met if the alleged offence is closely related to the hostilities or is committed in conjunction with them”. Short of a demonstration that the terrorist attack on the presidential plane claiming the lives of its occupants did not meet this legal threshold, statements alleging that the crimes did not constitute a war crime and so fell out of the jurisdiction of the Tribunal are misconceived and misplaced.
Permit me to point out that in attempting to discredit positions stated by Erlinder and Black, Alex Odora-Obote has tacitly repudiated what he initially set out to accomplish; namely, discredit the valid claims made by Herman and Peterson in their article. His constant shifting of positions as the discussions progressed supports this claim. Herman and Peterson as well as Erlinder and Black have amply demonstrated this tendency to shift positions without acknowledging the fact. Readers are encouraged to reread prior postings to find this out. I will therefore not belabour the points that they have addressed.
The writer fails to concede the fact that some of the positions he has alleged were “peddled by a number of former ICTR defence counsels”, in particular, those pertaining to victors’ justice, a distortion of Rwandan history to support politically motivated charges of conspiracy to commit genocide and the RPF interference in trial and appellate proceedings before the Tribunal, are well founded. It is a negation of the reality of these assertions which is founded in politics and not in the law.
The positions taken by Erlinder and Black are supported by the Judgments of the Appeals Chamber of the ICTR. The Jean Kambanda Judgment that he points to support his sweeping indictment of defence counsels was not arrived at after a hearing on the merits. Alex Odora-Obote points to no occasion when this judgment was relied on by a Trial Chamber or the Appeals Chamber in making a determination on the Count on Conspiracy to Commit Genocide. This cannot be said about the appeals judgments that Black and Erlinder pointed to in their reply.
The lawyers wrote about positions they litigated and prevailed on the charges of conspiracy. Alex Odora-Obote fails to deny this fact.
In a significant shift from his prior position on this matter, Alex Odora-obote writes: “On conspiracy to commit genocide, Article 2(3) (b) of the ICTR Statute does not require, or indeed include an element, that a crime of conspiracy to commit genocide must pre-date 7 April 1994. The Statue covers crimes committed between 1 January and 31 December 1994”.
I agree with this statement of the law. Alex Odora-Obote probably failed to advice the prosecutor and his subordinate staff to follow this threshold in drafting indictments relating to the allegations underpinning the counts on conspiracy to commit genocide. It can be reasonably asserted that a failure to do so led to the prosecutor alleging and supporting the conspiracy counts on mostly a failed attempt to criminalize critical events in the history of Rwanda from 1958, key institutions in the Habyarimana regime which the RPF overthrew by the use of arms and key socio-cultural events that predated 7 April 1994. The result is critical to an understanding of the sweeping allegations made against defence lawyers who litigated and prevailed on the count of conspiracy to commit genocide, a linchpin of legitimacy of the RPF regime.
In this regard, the prosecutor alleged that “after the Rwandan Patriotic Front attack of October 1990, the Rwandan Government policy was characterized by the identification of the Tutsi as the enemy to be defeated”. “This policy defined the main enemy as the Tutsi from inside or outside the country, who wanted power, who did not recognize the achievement of the revolution of 1959, and who was seeking armed confrontation. The secondary enemy was defined as those who provided any kind of assistance to the main enemy. This latter category was considered as accomplices of the RPF”. In his opening statement in the Military II trial, the prosecutor laid out his case on the conspiracy count on alleged acts and conduct pre-dating 7 April 1994.
The statements alleged to be political statements were the subject of a defence motion on 20 September 2004, even before the prosecutor could make his opening statement. On that occasion, the defence alleged the selectivity of the trials and the disregard by the prosecutor to prosecute the “the crimes of the RPF, including the murder of the presidents of Rwanda and Burundi and their companions on the Falcon jet shot down by the RPF and allied forces on the evening of 6 April 1994”. Then as now, the defence alleged that “when Madam Del Ponte even made noises about prosecuting members of the RPF, she was relieved of her position here, at the instigation of those two countries in particular”.
In his reply to the defence application the prosecutor Mr. Jallow stated as that, “It is true, of course, no such case has come before the Court yet. No such case has gone before the Court. But it is inaccurate to say that the OTP has been engaging in a discriminatory process. There's a selective process, yes. By the nature of the exercise of prosecutorial discretion there has to be a selection of cases which we will bring to court; bearing in mind that there are thousands of potential cases that we have, as I said, limited resources. And that we have a limited life span which ends in 2008. All those factors determine the number of cases that we will bring to the Court”.
These were the legal reasons which the prosecutor provided for not pursuing the shooting down of the plane and prosecuting RPF crimes generally. Alleging as Alex Odora-Obote has done that, “Both Erlinder and Black conveniently fail to address legal reasons offered by the Office of the Prosecutor (OTP) not to pursue further investigations in the shooting down of the plane”, is therefore misplaced. It is misconceived to point to the excuse Carla Del Ponte provided for not pursuing the matter further as evidence of a justification that the crime did not amount to a war crime subject to the jurisdiction of the Court. Deferring to the decision of her predecessor not to prosecute in no way comprehensively addressed the issue raised by counsel.
The prosecutor Mr Jallow did not accuse the defence of “recyling political positions” when they made these arguments before the Trial Chamber; nor did the Court make a finding that the allegations constituted recycled political statements and not the law. Rather, the issues raised were legal issues properly raised for determination. Mr Jallow asserted his prosecutorial discretion in the selection of the cases he brought for trial. When the opportunity arose to address the shooting down of the presidential plane he did not state that the reason for not pursuing the matter was because the plane was a legitimate military target due to the presence of military personnel among the crew, or that it was not a war crime falling within the mandate of the ICTR, as it has unpersuasively been argued by Alex Odora-Obote.
The removal of Carla Del Ponte from her position for evincing an intention to prosecute the RPF for the crimes which UN reports and her own investigation found it perpetrated was raised and the prosecutor passed over an opportunity to contradict the defence or Carla Del Ponte on the reasons they advanced. It is unreasonable therefore to allege that addressing these matters is tantamount to former defence counsels at the ICTR recycling political statements which are not the law.
Defence lawyers at the ICTR whom Alex Odora- Obote has dismissed for recycling political statements which are not the law have been widely praised. Professor Jenia Iontcheva Turner for example conducted research on the defence in international criminal tribunals and found that due to their vast experience, defence counsels at the ICTR were probably wise to direct their attention to challenging expansive theories of liability under international criminal law like conspiracy and complicity which were two of the most common grounds for charge dismissals and acquittals. This, she wrote, explained the highest number of acquittals at the ICTR surpassing all other criminal courts and tribunals.
Although not charged, there are other compelling reasons why the shooting down of the presidential plane became a litigate subject of enquiry leading to significant evidence being adduced and placed on the trial record. In Military I and Military II trials the prosecutor alleged that President Habyarimana was a co-conspirator in pre-planning the genocide against the Tutsi. In other words he participated in a conspiracy that occasioned his own death. In that case as well as many others, compelling evidence which pointed to the RPF as the perpetrators of that criminal act was adduced and placed on the trial record. Apart from making determinations about the guilt or innocence of the accused, one of the reasons for conducting trials is to keep a historical record of the crimes perpetrated. This goal was attained in the case of the assassination of President Habyarimana and others.
Through Dr. Alison Des Forges and some witnesses, the prosecutor alleged that the plane was shot down by alleged Hutu extremists as part of a pre-planned conspiracy to terminate the Arusha Accords and perpetrate the genocide. This is part of the RPF narrative which was contradicted by other averments in the trial. It was evidence in support of outrageous claims like these and cheap political propaganda attempting to incriminate the accused in a conspiracy to commit genocide that were consistently dismissed by the Tribunal.
* Chief Charles A. Taku came to the ICTR in 1999 and ended his mandate in 2014 after securing with his Co-Counsel Bethlyons the acquittal on appeal of his client Nzuwonemeye in the Military II trial. He was also lead counsel for Laurent Semanza at the ICTR, Morris Kallon in the RUF trial at the Special Court for Sierra Leone, Mr Samuel Kargbo in the contempt proceedings and Dr David Matsanga in the ICC continuing investigation in the Republic of Kenya ( Article 70 investigations).
 ICTR-97-20-T Prosecutor V Semanza Trial Chamber Judgment para 369 p 113
 ICTR-20- 97-20-T Prosecutor V Semanza; Third Amended Indictment para 3.4. ICTR- 00-56 T Amended Indictment Prosecutor V Ndindiyimana et al. Para. 23-25
 Semanza Para. 3.4.1.
 ICTR-00-56-T Ndinliyidimana et al. p 60
 ICTR-00-56 T Prosecutor V Ndindiliyimana et al. Transcript of 20 September 2004 p6
 ICTR-005-56 T Ndindiliyimana et al, transcript of 20 Sept. 2004, p 60
 ICTR-00-56 T, Prosecutor V Ndindiliyimana et al transcript of 20 September 2004 pp 33-34,
 Jenia Iontcheva Turner in Defense Perspectives on Law and Politics in International Criminal Trials: Virginia Journal of International Law, Volume 48-Number 3-Spring 2008 P 566
 ICTR -00-56 T Prosecutor V Ndindiliyimana et al Amended Indictment Paragraphs 18-23 0f
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