Phil Taylor has acted as both defence investigator and legal observer at the genocide tribunal in Arusha, and does not like what he has seen and heard
'Where the devil do these people get their moral authority?'
I got to be an observer at the International War Crimes Tribunal, in Arusha, quite by accident. I was hired by a lawyer in Toronto to work as an investigator for the defence. I arrived there and I was ready to do what I always do, go to the prison and see the client to hear his story, to ask him what he would like me to do in the way of investigation, where his witnesses are etc. I did not get to go. I was not allowed to see our client for seven months. Our client had seen several people testify against him before I ever saw him. I have seen him now, but only with a prison guard present. This is improper, in the sense that the defence must be able to prepare before and during the trial to rebut witnesses.
I spent those seven months as an observer, seeing what the tribunal is all about. I have been there from day one, gavel to gavel, in the matter of the Bourgmestre of Taba Commune, Jean Paul Akayesu. It has been a very interesting exercise. In my account of the proceedings, I will characterise the language used, I am not claiming to be absolutely precise.
Inside the courtroom you see an army of people, rows of translators and investigators; and then at the prosecution bench you see at least four prosecutors, and directly in front of you you see three judges with a row of people called the Court Registrar and the Registrar's Assistants, who basically drive the court process. And then on the left hand side you see two guards, one prisoner, and usually one defence lawyer. The crime is genocide and there he sits with one lawyer.
The opening day was extremely interesting for all who think that War Crimes Tribunals are a great idea. It was a performance. All the media were there. It was a full house. Of course it is an empty house now. The President of the Court, Judge Kama from Senegal, announced that 'This is a historical occasion' - it was the first time since Nuremberg that such a body was called together, all of humanity was watching, the highest standards of justice were about to come to a region of the world that did not have the best reputation for that sort of thing, and the history books were going to be full of what they did today.
I heard the word 'history' so much that I almost got a rash. Then Mr Prosecutor got up and said 'I too am proud to be part of such a process, and it is a dream for Africa. At long last standards of justice are going to be applied - and we are going to sort out good and evil - to do the right thing', and again that 'I am part of history and very proud of it'.
Then the light went on over at the microphone of the accused. The judge is a fair-minded man, so he said 'Does Mr Akayesu want to say something?'. Akayesu stood up and he said 'I just wonder, could I have a lawyer of my own choice please?'. And the judge said 'Sit down. Today we are not going to talk about that. What we are talking about today is making history'.
Akayesu had two lawyers there that day and they had just arrived. Did they know Mr Akayesu? No. Never seen him before in their lives. They were what we call Duty Counsel. He said 'I do not want these people, I don't know them'. He is accused of genocide, about as good as you can get for heinous crimes. He faces the rest of his life in prison, and he has two lawyers that he does not know.
The tribunal has established the principle that if the accused is indigent [poor], it will choose who represents him. The court, not the accused, will name the defence lawyers. The accused can only have an opinion; and you know how nice it is when someone wants your opinion, particularly when they will make the decision.
When one of the main accused, Colonel Bagosora, fought successfully to fire his counsel who had not even been in touch with him, the counsel told the judges 'I was appointed by the Registrar not by Mr Bagosora. I have been in touch with the Registrar's office consistently'. The Registrar's office is not accused of genocide. Though Bagosora was able to dismiss his lawyer, the registrar still retained the power to appoint his successor.
Jean Paul Akayesu also went through this exercise with the court. When the judges said that they would consider his request to have a lawyer of his own choice in due course, he said he would defend himself. Now, people love to see a demon. They have come to court to glare at him and to hate him because they hear he is the embodiment of evil. Unfortunately, he gets up and talks and begins to question the witnesses and becomes a human being again. This became a problem for the court. For about a week he did his best to defend himself, and being an educated man, frankly I think he did rather well. Then the judges decided that, since he was defined as without funds he could not choose his own lawyer. Instead, the two court-appointed lawyers would formally and officially represent him. 'And by the way', they said, 'Since we have decided on the issue of representation that you can no longer defend yourself, sit down'.
The issue of racism behind the scenes is hotly debated in Arusha. The Registrar's Office suggested that I could not be a defence investigator because I was not from Africa. My response is 'That is how you feel, but it's none of your business'. If Mr Rutuganda wants to have an investigator all the way from Canada that is what he wishes to have. They have tried to play a kind of a race card. Almost every prosecution investigator is white and many of them, frankly, are from Canada. And they say to Mr Rutuganda, 'We have got an army of investigators from our system, we are going to nail you to the wall, but we think you ought to find a nice African investigator'. Well, he is a smart man, he understands that you fight fire with fire. He knows that a lot of the presuppositions of the counsels and prosecutors against him are going to come from a legal system that he does not know. So he wants people from that same system to combat the others.
Who asked the court to choose the lawyers for the accused and to cover it up by saying 'Well, you see, we are very pro-African'? There are many wonderful lawyers from all over the world, including Africa, who want to go there and be defence lawyers. The rules of the tribunal have been interpreted to mean that the Registrar will choose. Anybody who wants to see due process knows that whether you like it or not the accused should have somebody representing him that he believes in. At the end of the line it has got to be the accused who has this right.
In Arusha, hearsay evidence is allowed a great deal of the time. This, too, is extremely dangerous. People come into court and they say 'Jean Paul Akayesu incited a crowd on 19 April, he told them that the Tutsi were evil and they had to kill all the Tutsis'. Then the witnesses were asked, 'Were you there?'. 'No, no I wasn't there. But my friend was there, and my friend said he said so and so.' It is ridiculous that this kind of hearsay testimony is before the court.
This leads us to another problem with the evidence. The witnesses report that, well, he did not really say Tutsi, he said we have to fight Inkotanyi - which means something about collaborators with the Rwandan Patriotic Front - and he said we have to fight the Inyenzi - which means cockroach in Kinyarwanda. 'But we know what he meant.' All the time I keep hearing about racist propaganda, how the Hutu extremists said go and kill all the Tutsis. But you get into court, and somebody has actually to stand up and swear, and they tell you he said 'Inkotanyi', he said 'Inyenzi'.
Now it is time for the experts to appear. So Alison Desforges shows up, an American who is an expert on Rwanda. Of course, she does not speak the language but that is not really necessary when you are an expert. She was asked 'Ms Desforges do you speak Kinyarwandese?' ('Kinyarwandese' is deliberately wrong, it's what she was actually asked by the examiner), and she said, 'Well I can order bananas but I can't speak to talk philosophy'. She was asked what these words mean. She said they were code words, that were often used to mean Tutsi. She is an expert on the inner psyche of the Rwandese mind so she knows what they actually meant. You have to be very smart to catch people with their codes.
Then they brought in a Rwandan language expert. The prosecutor said 'There is evidence that on 19 April 1994, the accused told the crowd to fight the Inkontanyi and kill the Inyenzi. The word Inyenzi means cockroach but does it not also mean Tutsi?'. The linguist said 'I don't know. Inyenzi was a term developed in 1963, when the first group of Tutsi exile guerrillas called themselves Inyenzi. So the speaker might have meant that.' The Prosecutor asked, 'Could it not be that one of the meanings of the word Inkontanyi might be Tutsi?'. He replied 'You would have to know the context, and who was present, to know whether or not he said it to mean Tutsi and whether or not it was understood to mean Tutsi'.
The prosecutor got very frustrated with him, after all he was a prosecution witness, and said 'Perhaps you could take off your academic, linguist hat for a moment and speak to us as a Rwandan. If you were at a meeting on 19 April 1994 and you heard the speaker say 'Inyenzi' or 'Inkotanyi' is it not possible that you would have thought that he meant Tutsis?'. And the linguist said 'Well, I was not there. This is 1997 and that was 1994 and had I been there and had I heard it, were you to ask me what I had heard when I was there, I might be able to help you'. There was a kind of sigh in the room. Even the judges began to look out of the window. And then he said 'I don't think I can help you very much, maybe you could ask > me some more questions'. And they said 'That's fine, you have been very helpful'. In other words go away.
Anyone who reads about this case will be told that there was this hateful racist propaganda. Maybe there was, but be very careful. There is no persuasive evidence that Akayesu said 'I want you to kill all the Tutsis'. We do not even know if he was at the 19 April meeting. Nobody is able to say what he did or what he said. What the experts are able to do, since they are brilliant at interpreting language, is to say he meant Tutsis based on hearsay evidence. That is the kind of ugly situation the tribunal is getting itself into.
Why are we not more sceptical in this world? My experience of working as an investigator for lawyers is that I hear all kinds of terrible things, I see front page pictures of evil men being dragged thorough the streets with handcuffs on. But when I get to court, nine times out of ten what I hear does not quite fit with what the front page told me.
I do not know how they qualify these expert witnesses to testify. For instance, a reporter and a photographer from a British newspaper and someone from Médecins Sans Frontières are testifying in the case of Jean Paul Akayesu. Their words will be weighed against him and he will be sentenced to life or not. He was the Bourgmestre of Taba Commune. None of the three had ever been to Taba Commune. None of the three had ever seen Mr Akayesu. None of the three claimed any knowledge of him. Instead they were atmosphere witnesses, giving shocking evidence on what it was like in Rwanda in 1994.
The person from Médecins Sans Frontières testified that he had seen horrendous things, that he went to a church where people had been massacred, and that he had employees who were murdered. I believe him, absolutely. He said that MSF does not believe in getting involved in court cases because they want to remain independent, but in this case because of the horrible things he had seen he had come here to testify. He was extremely righteous in his testimony, determined to give us a picture of great mayhem. But I would ask MSF, why do you want to go into a courtroom and give evidence about horrible crimes, when you say that you have never seen the accused, you have never been in Taba Commune and have no knowledge about what went on there, but you are going to help them create the scene?
Do you know what is going to do the most damage to the accused? It is the evidence of the experts. The expert witness is the deadliest witness of all, because when you listen to the evidence of the eyewitnesses in Taba Commune I do not think you are very convinced that Mr Akayesu is a leader of a genocide. But when you let Alison Desforges come into the courtroom and spend two weeks telling the story about what happened (she does not know either by the way - she was not in Tabua), by the time that story is over you feel like convicting Mr Akayesu.
Incidentally Alison Desforges interrupted her testimony, because a dear friend of hers had passed away and she was so upset that she was not able to testify as an objective witness, she had to go to the funeral in Kigali. It was the funeral of a minister in the government of General Paul Kagame. I found that a little troubling, her credentials are supposed to be those of a neutral human rights activist from the USA.
Where the devil do these people get their moral authority? They get it from the United Nations Security Council. They say that we are ending the Culture of Impunity. Apparently a conference somewhere produced this term. But although I had not heard about the Culture of Impunity, I grew up in it. In the United States we had slavery, we annihilated the Indians, we took over the land of Mexico, we dropped a bomb for their own good on the Japanese. But we have examined our conscience and forgiven ourselves. Of course such a privilege is not extended to Africans - they would just misuse it the way they did with their independence.
Hillary Clinton flew into Arusha to talk about the issue of rape as a war crime. They flew these very well paid investigators into Arusha to make up a conference to talk about this matter. She pointed out that her husband's administration had given $675 000 for investigations of sexual crimes under the war crimes tribunal. As a result, in the Akayesu trial we suddenly started hearing about rape. Nobody had accused Akayesu of rape, or ordering rape, but he got caught up in the process.
Coinciding with the visit of Hillary Clinton, a woman came into the court and said she was raped in a field by a Hutu extremist and she knew who it was. She was asked what this had to do with Mr Akayesu. She confirmed that he was not present and that no-one had said he was involved, but she said he should have known - he was the bourgmestre and he should have done something. In Toronto people get raped without blaming it on the mayor. Hillary Clinton's conference was a sham that was folded up and went away as soon as she flew out of Arusha. It was simply a platform for Hillary. But at the tribunal it has had an impact because now we are getting all this evidence about rape as a war crime.
This is the reality of the Arusha set up. It is always teetering on the verge of complete farce. The accusation of genocide has very effectively eliminated the Hutu people, the Rwandan people in fact, from a political process. It has taken politics into the courtroom, and it has permitted a general > who runs the government in Kigali and has more than 100 000 prisoners to be portrayed as a champion of justice in Central Africa.
I think there is a problem with people who are enthusiastic about the tribunal. I live on the defence side of the law. I am not much of an enthusiast for prosecutors. It seems to me that the state is sufficiently powerful without the assistance of well-meaning liberals or anybody else. I have found that a lot of Canadians whom I know as defence lawyers are working as prosecutors in Arusha and they are very happy about it, very smug, very comfortable. And it bothers me because in Canada they are in defence lawyer associations and they sneer when the word prosecutor is mentioned, 'the Crown' etc. But they get over there into Arusha and they are suddenly enthusiastic about being prosecutors. I think that is a symptom of something that may be amiss in this whole exercise.*
This is an edited version of a speech which Phil Taylor gave at the conference 'Rwanda: the great genocide debate', organised by Africa Direct in London in July.
The Rwandan impunity issue: the theft of truth and justice in Central Africa
John Philpot, Secretary General of the American Association of Jurists
The unpunished murder of thousands of people in Chile, Central America, Uruguay, Haiti, Panama, South Africa, Argentina and elsewhere during the liberation struggles of the sixties, seventies and eighties is a permanent blemish on these countries' history and a glaring impediment to the establishment of social justice, genuine independence and democracy. The failure to punish the murderers and torturers, all allies of the United States, is a threat to anyone who wants to continue the fully justified struggles of the past decades. Worse still, the unpunished murderers are 'respected' members and well-off actors in the new democratic regimes.
The campaign against impunity is a noble one which must be continued. The problem resides in that the anti-impunity campaign has been diverted, stolen and transformed into its opposite in the Great Lakes crisis: in the name of the fight against the Culture of Impunity, the losing side in the war in Rwanda is being subjected to arbitrary and unjustified punishment.
The International Criminal Tribunal for Rwanda (ICTR) was set up by the Security Council in November 1994 to judge the authors of war crimes and crimes against humanity committed in the calendar year 1994. Unlike the Nuremberg Tribunal, the ICTR Tribunal statute does not include the crime of planning war. The court is in many ways an appendage of the Rwandan Patriotic Front Government. In June 1997, judges and prosecutors travelled from the seat of the tribunal in Arusha Tanzania to Kigali, Rwanda to meet political leaders of the Rwandan Tutsi dominated dictatorship who had complained about the delays in tribunal proceedings.
Even if the UN Gersony report in September 1994 denounced the murder of up to 30 000 Hutus by the RPF since July 1994, it is obvious that none of the RPF invaders will be charged in this court void of even the trappings of independence. This court cannot under its statute charge the authors of the massacres of thousands of Hutu refugees at Kibeho in April 1995 nor of the murders after 1 January 1995 of the tens or hundreds of thousands of Hutus described by the Prime Minister Faustin Twarimungu or Minister of the Interior Seth Sendashonga when they resigned in September 1995.
Individuals are spirited out of countries surrounding Rwanda to Arusha, Tanzania where the tribunal is based. Some are indicted and others held under simple suspicion without any extradition proceedings. Borders disappear again. Detainees are frequently deprived of the right to contact a lawyer. This procedure occurs under the leadership of one or more former Canadian lawyers parading as Security Council super-cops.
Even more worrisome are Rwandan internal criminal courts. Approximately 120 000 Hutu prisoners including children are detained on 'genocide' charges, only about 10 per cent of them having documented files. Under the new 'genocide law', a law of criminal procedure inspired by Canadian jurists and Peruvian President Fujimori's anti-terrorist legislation, these accused have no recourse against their prolonged detention without charge. This law provides for the reduction of the death penalty to prison terms based on the condition of confession and useful information on 'accomplices'. Rwanda and the Belgian NGO Avocats Sans Frontières are seeking the help of foreign lawyers to help implement this plea bargaining system and ensure convictions of more accused. The system bears no similarity to Canadian plea bargaining, in which the accused pleads guilty to charges reduced to correspond to the available evidence.
Trials of these Hutus accused will be held before minority Tutsi judges having received four months training under a program organised by Canada. Most trials last a few hours based on documentary evidence and the death penalty is the general result. The trials, broadcast on the radio, are held in an atmosphere of hysteria.
These legal lynchings have been praised by the United Nations Commission for Human Rights which underlined the progress made in Rwanda in the fight against impunity. Amnesty International is one of the few international organisations to criticise these trials in its 8 April report Unfair Trials: Justice Denied.
Parallel to this punishment reigns a terrible impunity. In eastern Zaire, a few hundred kilometres away, we have seen that thousands of Hutu refugees have been massacred by the US allies, the Ugandan and Rwandan armies. Not to mention the executions of the local populations by the same armies. The systematic murder of Catholic leaders such as Archbishop Christophe Munzihirwa of Bukavu is reminiscent of the tactics of the Salvadorian death squads who murdered vocal critic and champion of the people Archbishop Romero in September 1980. Christophe Munzihirwa was himself an outspoken critic of the actions on the Hutu refugees by the Tutsi armies of the region. Moreover, no one is accused of the supreme crime of organising aggressive war in spite of two major invasions in six years: Rwanda in 1990 and Zaire in 1996.
The adoption of the slogan of the fight against impunity to justify war and aggression and US sponsored Tutsi dominance is little more than human rights demagogy. Behind the thin veneer of respectability of the term impunity, we can read once again the history of the last 30 years: impunity is the rule and is reserved for the powerful allies of the United States whereas one-sided punishment is the sort reserved for the downtrodden peoples who stand in the way of Western sponsored hegemony. The problem is that this language enlists a lot of naive or not so naive opportunistic support. And human rights jabberwocky becomes an abstraction to truth and justice. Where will the human rights mafia strike again?*
This is an edited section of a paper, entitled 'The Demise of International Law in the 1990s - Causes, Perspectives and Responsibility: The Example of the African Great Lakes Crisis', prepared for discussion at the eleventh Continental Conference of the Association of American Jurists, to be held in Guatemala City from 6-10 October 1997. It was given to Africa Direct by John Philpott
A court created for political ends
Ramsey Clark, former United States Attorney General
The tribunal is not authorised under the UN Charter. The United Nations Security Council, comprised of five permanent and 10 elected member states, created both the Tribunal for Former Yugoslavia and the Tribunal for Rwanda, acting under Chapter VII of the Charter which confers political power designed to enable the Security Council to act politically to address war and threats of war.
There is no basis in the words of the UN Charter, or the history of its creation, or half a century of experience under it, to imply the Security Council has the power to create any court for any purpose. To use the extraordinary war powers authority of Chapter VII to create courts is contrary to the language and intent of the Charter, assaults the spirit of the judicial function by pairing it with military force and creates the appearance, and in these two cases the fact, that the court is created as an instrument of political policy for political ends.
The General Assembly is the proper UN organ to study and plan UN courts. No nation, or person, should be subject to judgement and punishment by a court created by a power entirely foreign to it. The Security Council has not heretofore and cannot now usurp power under the UN Charter to create courts. If it can create an ad hoc criminal court with power to imprison and even execute people, what limit is there on its power under Chapter VII?
The stunningly egregious selection of conflicts in two nations by the Security Council, former Yugoslavia and Rwanda, as the sole subject matter and jurisdiction of its unprecedented tribunals illuminates the politically discriminatory nature of the authorisations. During the Security Council's 50 years of inaction the world saw hundreds of breaches of the peace. Dozens of conflicts caused hundreds of thousands of deaths each, many of which involved Security Council members as direct combatants. These conflicts were ignored.
That both newly created tribunals were brought into existence with the strong support of the United States after the end of the Cold War, and were circumscribed to address primarily parties to the respective conflicts opposed by the United States - Serbs in the case of former Yugoslavia and Hutus in the case of Rwanda - confirms the political motive and abuse of judicial power.
The most damning aspect of these ad hoc tribunals is the hostility and threatened breaches of peace they cause, compounded by their utter futility as instruments of peace or justice. There is a fatal flaw in the power of the tribunal that defeats any possibility of fair trial, or accurate fact finding. It does not have the power to secure evidence in Rwanda independently of the government of Rwanda and it could not compel the production of witnesses, or evidence from Rwanda if it did.
The Commission of Experts for Rwanda did not undertake investigations in Rwanda and lasted only three months. The tribunal is dependent on the government of Rwanda for any witnesses and evidence it needs from Rwanda to present its cases. The government is a major participant in the armed struggle and committed a major part of the slaughter of 1994. It has conquered the Hutus in Rwanda and continues its assaults on them in Rwanda and outside by direct violence and through its own tribunals. Witnesses permitted to testify by the government of Rwanda are ipso facto unreliable. If not instructed to testify falsely, they cannot testify favourably for a defendant and return to Rwanda without facing death.
An accused in Arusha cannot investigate in Rwanda, cannot discuss the case with witnesses there without endangering them if they would talk, cannot secure their presence in Arusha to testify on their behalf and cannot enlist assistance from a powerless court for the purpose. The climate of fear among Hutus in Rwanda is omnipresent. A fair trial, a search for truth, is impossible under the circumstances.
If all the accused in Arusha were convicted it would add nothing to accountability for the hundreds of thousands of deaths, it will do nothing except provide further proof of the hypocrisy of employing tribunals to write history. The effect will deepen the bitterness and division between peoples who have experienced more than enough of that.
Ramsey Clark is currently fighting the first attempt to extradite a Rwandan Hutu from the USA to face trial in Arusha. This is an edited extract from his submission to the Texas courts, 'Memorandum in opposition to the request for surrender of Pastor Elizaphan Ntakirutimana to the International Tribunal for Rwanda', March 1997
Reproduced from LM issue 103, September 1997