The position that whenever a prosecutor makes decisions that are unpopular to the defence Counsels, then such decisions are political is bizarre. Defence counsels ought to separate legal issues from their own political views about Rwanda.
I have read, with interest, the replies of former ICTR Defence Counsels Mr Peter Erlinder and Mr Christopher Black. The issues they raise are not new but a repetition of positions peddled by a number of other former ICTR Defence Counsels over the years. 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. Second, the two defence lawyers appear deliberately blind to the fact that ICTR has a mandate to prosecute only crimes as stipulated in the ICTR Statutes, and not necessarily all crimes.
With respect to the shooting down of the plane, the relevant legal issue is not whether the shooting down of the plane was a crime. Rather, it is whether the act of shooting the plane constitutes a war crime as stipulated in Article 4 of the ICTR Statute. Both Prosecutors Louise Arbour and Carla Del Ponte reached correct legal conclusions that it was not a war crime within the meaning of Article 4 of the ICTR Statute. In her Memoir, Carla Del Ponte wrote, and I quote extensively thus:
“After reading about Bruguier’s investigation of the incident in Rwanda, I asked my aides whether the Rwanda Tribunal was investigating the attack on the French aircraft. The answer was no, and for good reason. My predecessor, Louise Arbour, had done an analysis of the attack and decided that, even if the prosecution could show that Tutsis had shot down the plane, it would be difficult to make a case before the tribunal against the persons responsible, because assassinating a president, while a crime, is not necessarily a war crime, and the tribunal’s jurisdiction, roughly put, was limited to war crimes.
“I concurred with Arbour’s assessment. The prosecution, I thought, could only prove that assassinating President Habayarimana amounted to a war crime if it could show that the persons who shot down his plane had calculated that this act would trigger a genocide from which they could benefit politically. This scenario is almost too Machiavellian to imagine.”
Mr Erlinder and Mr Black are entitled to disagree with Prosecutors Arbour and Del Ponte’s legal reasoning and conclusions, but that does not make the Prosecutors’ decisions political. The view of the OTP, based on sound legal reasoning, remains that the shooting down of the plane was not a war crime falling within the ICTR Statute.
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. Further, the shooting down of the plane has no direct nexus with the crime of conspiracy to commit genocide as stipulated in the ICTR Statute. In any event, a holistic reading of the Bagosora judgement referred to by Mr Erlinder limits its judgement to that particular case and leaves open the possibility of conviction for conspiracy to commit genocide in other cases. And, as a fact, other ministers had been convicted of that crime. I will not therefore belabour the point save to point out that ICTR Defence Counsels have generally continued to be dismissive of Prime Minister Jean Kambanda’s conviction for conspiracy to commit genocide long after Appeals Chamber confirmed it.
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 legal framework as provided in the Tribunal’s Statute and nothing more.
* Dr Obote-Odora, Independent Law Consultant.
 Carla Del Ponte in collaboration with Chuck Sudetic (2009), Madame Prosecutor, Confrontation with Humanity’s Worst Criminals and the Culture of Impunity (Other Press, New York) at p.180.
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