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The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Judicially-Constructed “Victor’s Impunity”?
DePaul Journal for Social Justice (2010)
  • C. Peter Erlinder, William Mitchell College of Law
ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] (ICTY) and Rwanda [11] (ICTR) were ostensibly untarnished by the taint of “victor’s justice”. [12] But, despite having been established by a presumably “neutral” U.N. body, [13] the ICTR has become the only international tribunal in history mandated with prosecuting both sides in a war that has prosecuted only the vanquished. [14] Human Rights Watch rightfully observes that the ICTR history of one-sided prosecution threatens the Tribunal’s historical legacy [15] for a wide range of reasons. First, it falsifies Rwandan and African history; Second, it has created a completely unreliable jurisprudence that has been manipulated to fit a pre-determined outcome. [16] Moreover, the ICTR’s one-sided prosecution threatens the legitimacy of the ICTR and calls into question all of its findings. Prosecuting only the vanquished military and government in the 4-year war the followed the Rwandan Patriotic Front invasion from Uganda must mean either: (a) the war that raged in Rwanda between 1990-94 is the only war in history in which only the vanquished committed crimes, or, (b) the ICTR has become a victors’ tribunal, like Nuremberg and Tokyo, without public acknowledgment that this is the case. Fortunately, former ICTR Chief Prosecutor Carla Del Ponte [17] and her deputy, Florence Hartmann, [18] have provided the historically comforting answer: the Rwanda War is not historically anomalous and is not the only war in history in which only the vanquished committed crimes. Their memoirs describes precisely how Del Ponte was fired from her UN-ICTR post by the U.S. State Department in 2003 because she refused U.S. orders to drop prosecutions against the RPF and its leader Paul Kagame for “Rwanda genocide” crimes, [19] including the assassination of the former President, which touched-off the mass violence. The article describes how, despite U.S. manipulation of the ICTR, the Ntabakuze Defense Team in the Military-I Trial [20] gained access to original U.N. and U.S. Governement documents from 1990-95 that explain what actually happened during the “Rwandan genocide,” rather than what the victors say happened after they seized complete control of the country, and all information coming out of the country. [21] As a result, the supposed “architects of the Rwandan genocide” in both the Military 1 and Military 1 trials were acquitted of “planning or conspiracy to commit genocide” and the highest ranking officer, General Gratien Kabiligi, was acquitted of all charges. [22] The evidence in the Military-I Trial record compelled the Court to conclude that the “long-planned conspiracy to commit genocide” was unsupported by the evidence, despite the best efforts of the Rwandan government and the U.N. Prosecutor, with assistance from the U.S. State and Justice Departments. [23] A second court agreed in the Military-2 Judgement issued in May 2011. On a broader level, however, the article is intended as an object lesson in “Sole Superpower” influence over seemingly “neutral” international juridical bodies, by making use of recent public exposures of U.S.manipulation of the ICTR for its own policy interests. The article also describes the devastating costs that using the ICTR in this way has inflicted upon the people of Central Africa. The influence of U.S. policy over every international tribunal in which the Security Council retains an important role (including the International Criminal Court, although the U.S. is not a member) [24] is probably better understood by nations vulnerable to tribunal justice, or vengeance, than this overarching U.S. influence is understood, or admitted, within the U.S. [25] For example, recently the heads of State of all African Union [26] nations unanimously refused to cooperate with the ICC [27]which, in the last analysis, is an expression of “no confidence” in U.S. foreign policy toward Africa. [28] As Uganda-born scholar Mahmood Mamdani of Columbia University explains: Its name notwithstanding, the [International Criminal Court] is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are U.S. adversaries and ignored actions the United States does not oppose, like those of Uganda and Rwanda, effectively conferring impunity on them [in the ICTR]. [29] Part I [30] describes how an American law professor and a UN-ICTR defense lawyer became a “genocide denier” and enemy of the RPF ruling party of Rwandan State; Part II [31] examines how the most powerful Permanent U.N. Security Council members have re-created the ICTR as a “victor’s tribunal.” Part III [32] discusses the long-suppressed U.N. documents that the Ntabakuze Defense put into the ICTR-Military1 public evidentiary record, which resulted in the acquittal of the supposed “architects of the genocide;” Part IV [33] describes the consequences of sole super-power manipulation of international “tribunals,” no matter how pure the intentions of individuals participating in those manipulations and concludes sich manipulated international bodies are an impediment to reconciliation between African peoples; a recipe for disaster for the international justice; and contrary to long-term U.S. interests in the developing world. ________________________________________ [5] Decision on Aloys Ntabakuze’s Motion for Injunctions against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, Bagasora, Ntabakuze, Nsengiyumva v. Prosecutor, ICTR Case No. 98-41-A (October 6, 2010) at [6] Edmund Kagire, “Rwanda: we will not drop Erlinder’s case, Prosecutor”, The New Times, October 28, 2010 at According to Prosecutor General, Martin Ngoga, Erlinder [….] will be summoned back to the country to answer charges after he was released on bail on medical grounds in June. "You may also recall that few days ago the ICTR ruled that he doesn't have immunity when it comes to publications and statements that he does out of the scope of his duties in the defence council of his clients at the ICTR," said Ngoga. "That his arrest here was not in breach of his functional immunity because he was not on ICTR business. That is the development that paved the way for us to pursue the case against him." Ngoga dismissed recent allegations by Erlinder that he fears for his life. Erlinder earlier this week issued a statement that he fears he could be poisoned or he could disappear if he returned to Rwanda. [7] Jason Stearns, “Bombshell UN Report Leaked: ‘Crimes of Genocide’ Against Hutus in Congo,” Christian Science Monitor, August 26, 2010. [8] The elements of these crimes are defined in the Security Council “statutes” under which each tribunal has been established. For an example, see Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by the Security Council, U.N. Doc. S/RES/827 (May 25, 1993). [9] The UN Charter does not mention the establishment of such tribunals, either as free-standing entities or within the powers of the Security Council, which led to jurisdictional challenges to many of the early ICTY and ICTR prosecutions. See Prosecutor v. Tadić, August 10, 1995 (ICTY Case No. IT-94-1-I) and Prosecutor v. Kanyabashi, June 3, 1999 (ICTR Case No. ICTR-96-15). However, the Security Council tribunals have justified their own existence by relying on UN Charter Chapter VII, which grants the Security Council “peace-making” authority. For jurisdictional arguments, See Alexander Zahar and Sluiter and Goran Sluiter, International Criminal Law (Oxford University Press, 2008) pp. 329.
  • impunity,
  • victor's justice,
  • Rwanda,
  • genocide,
  • conspiracy,
  • ICTR,
  • ICC
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Citation Information
C. Peter Erlinder. "The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Judicially-Constructed “Victor’s Impunity”?" DePaul Journal for Social Justice Vol. 4 Iss. 1 (2010)
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