Friday, May 4, 2012

The International {In}Justice of the ad hocs: The Ndindiliyimana Trial

Col. Luc Marchal

[In the foreword to his book, Rwanda: Le Paradis perdu, Protais Mpiranya[1], the former-commander of martyred Rwandan Chief-of-State Juvénal Habyarimana’s Presidential Guard, describes what he hopes his writing will help bring about:

"This document I made up my mind to write after nine years[2] in which I experienced anguish, nightmare, and humiliation, is not meant to be a historical record nor a work of literature.  It is quite simply a testament to what I lived through, saw with my own eyes, heard with my own ears, and personally read.  It is finally what I did and thought to do in my soul and my conscience, and all that results is my own responsibility. This testimony is meant to allow the reader, military or civilian, Tutsi, Hutu or Twa, religious or commercial, farmer or civil servant, Rwandan or foreigner from any of the far corners of the earth, who has heard commentaries of every stripe on the attack against the President’s plane and its consequences, to be able to make a judgment that is founded only on the reality, on the real truth.

"So this testimony is eventually meant for the International Community, which, with its ultra-sophisticated means and its highly-qualified personnel, organized, ordered, coordinated and took part in bringing about all that the Rwandan people went through and continue to endure.  In hopes that the leaders of these Great Powers and all the players in the theatre of International Humanitarian Law will be awakened to an understanding that the blood of every human being is the same color.  That these Powers will not promote only destruction, discord and disunity.  That this International Community will do everything it can, that it will give everything possible besides weapons, to bring about a rapid return to peace in Rwanda and in the region of the African Great Lakes.  That the great decision-makers of this world will cease to impose a Victors’ Justice on the Vanquished, and that some among them will stop shedding crocodile tears so as to absolve themselves of responsibility in the Rwandan drama.  And that this International Community will commit itself to establishing a system of equal justice for all Rwandans."
(pp 18-19)

Considering that International Justice, as extra-statuatorily interpretted by the U.N Security Council in its unauthorized formations of the ad hoc Tribunals for Yugoslavia, Rwanda and Sierra Leone (among others), has been much more an experiment in the Theatre of Irony (which is the West’s replacement term for ‘Cynicism’), Cruelty and Absurdity, than anything like a forum treating in independent, fair and balanced precedential law; the reflections of Colonel Luc Marchal, the Belgian batallion commander of the UN Peacekeeping Forces in Kigali in 1994, on the outcome of the trial at the ICTR (Military II) of our General Augustin Ndindiliyimana, Chief of Staff of the Rwandan National Gendarmerie at the time of the troubles, are most appropriate and timely.

In the case of these ad hocs, the overriding tension that deforms any, even the most jaded and expedient, sense of Justice, is between two sorry facts:  The Tribunals have found it impossible to prove on the evidence that any or the plotting or planning requisite to a ‘Genocide’ actually took place and has had to acquit all the major defendants of those most important charges; and the Tribunals have no contingency for defendants who are acquitted.  Those who just cannot be convicted, as a way to avoid an acquittal that would call the very raison d’être of the ad hocs into question, are merely ‘put down’ by their jailers.  Like the writer of ‘Paradise Lost’ or George Rutaganda or Slobodan Milosevic, some are often said to have succumbed to ‘natural causes’. 

But death at the hands of Injustice is never Natural.  It is quite monstrous.  –mc]

Where is the Justice in International Justice?
The Trial of Augustin NDINDILIYIMANA

Drawing lessons from the past

It is certainly too soon to write the history of the ICTR[3], even if presently the days of this court are numbered.  Nevertheless, and even if we do not have the necessary remove, it is useful to conduct a mid-term reflection on this already rich judicial experiment, which has been going on for more than a decade now.  Because it is a queer road that runs between the parody of judicial procedure that convicted Jean Kambanda[4] and sentenced him to life in prison, and the acquittal at trial, for the principal charge of intending to commit genocide, of the person universally taken to be the brains of the 1994 genocide, Colonel Théoneste Bagosora.  The question is not do we applaud the judges when they acquit or boo them when they convict.  No, not at all.  The fundamental question, what must come out at the end of any trial, is whether we can firmly believe that “Truth and Justice” were the sole driving forces of the legal arguments.

Someone said that those who do not learn from History are condemned to repeat it.  So it is with the ICC[5], if it does not take into account some of the errors of the ad hoc[6] tribunals.  In this context, the case of Augustin Ndindiliyimana, former Chief of Staff of the Rwandan Gendarmerie, seems to me to demand a particular interest.  It concerns someone with whom I have had occasion to work very closely during a particularly difficult period in his country’s history.  And his tribulations before International Justice are worth spending some time on in the hope that they will inspire a necessary reflection by those whose heavy responsibility it is to render justice for the whole world.

A short stay in Belgium

It was with the approval of the Foreign Minister at the time[7] that Augustin Ndindiliyimana came to Belgium early in July 1994.  In May 1998, he obtained political refugee status after a conflictual administrative procedure.  In January 2000, following the visit of ICTR Chief Prosecutor Carla del Ponte to Belgium, he was arrested on the basis of an all-purpose indictment, of a most general character, in which certain parties, without legal grounds, were simply tarred with the same brush.  Directly afterward, this document was twice amended.  This was evidence, if any is needed, that his arrest was not the result of a judicial investigation, but rather of a way of working that paid little or no attention to the most basic rights of the accused.  Just arrest them and we’ll see what happens!

What was the real reason for his arrest?  Had he really been arrested for something he did?  And, if so, shouldn’t the indictment have reflected this fact.  But, it did nothing of the kind.  Still, had he been arrested because, among other reasons, he was of interest to the Prosecutor in her overall indictment strategy?  Bear in mind, it had already been four years (2000) that the prosecution had been trying to demonstrate that a genocide was, in fact, being planned by Hutu leaders.  For four years, not even the tiniest sprouts of evidence were being brought forth by prosecutors.  And did Carla del Ponte figure that by arresting Augustin Ndindiliyimana she had picked up someone who was likely to testify for her against the “big fish” from the former government and bring out the elements necessary to establish her thesis about the planning of the genocide?  The tawdry negotiations that took place over several years in Arusha,  in the vain hope of gaining his “collaboration”, testify to just how obviously his arrest was an essential part of the overall prosecutorial strategy.  This legalistic machinery runs strictly in one direction, because no RPF leader has ever been charged by the ICTR, nor will one ever be.

But what, really, are the rules of the game proposed by the Prosecutor?  It’s not some dark secret, because the negotiations take place in an official manner and in the presence of defense lawyers.  In fact, this was the deal:  should Ndindiliyimana choose to cooperate (read: if he agreed to testify for the prosecution), he would catch a reduced sentence of 20 years [though, according to The General's lead defense counsel, Chris Black, this 20 yrs deal was an initial offer and was changed in 2003 to a total dismissal of all charges in exchange for his cooperation--cm/p], and should he refuse to cooperate, his sentence would be no less than the maximum, i.e., full-life without parole.  So where does one find Truth and Justice in this rotten deal?  One might believe that all the world’s just a marketplace where everything, all ideas and values, can be bought and sold.  But Belgium considers the Arusha Tribunal an extension of its own national justice system.  And in view of such metaphysical merchandizing, it is not seemly to be greatly enthusiastic about this kind of development.

Remember that during this same period of time, General Léonidas Rusatira[8] was also the object of an arrest warrant issued by Carla del Ponte.  He was arrested by Belgian authorities in May 2002.  Fortunately for him, he was able to take advantage of the unhappy experience of Augustin Ndindiliyimana.  Because of a Belgian solidarity movement on Rusatira’s behalf, the ICTR Prosecutor was led to acknowledge that the charges against him were unfounded.  So del Ponte abandoned his case.  Thanks to that, he regained his freedom after three months in prison.  One can only recoil in disgust at these methods that harken back to medieval practices.  You throw a man in jail as if he is some worthless object.  Here again, the Belgian authorities did not distinguish themselves with their concern for those things in between the determination exerted against an opponent of the current Rwandan regime (and on who, moreover, held refugee status) and the good-grounding of the charges made against him. 

An Abbreviated Trial

The official opening of the “Military II” trial took place on 20 September 2004.  The procedure in effect at the ICTR saw the Prosecutor present all his witnesses first, and then each Defense team, one after the other, presented their witnesses.  So it was that Augustin Ndindiliyimana, second in the line of defendants, began the actual presentation of his defense in January 2008.  Thoughout the course of his trial, two incidents, among many others, stayed with me because they seemed indicative of the sort of errors that any credible system of International Justice must do everything to avoid.

First, on 22 September 2008, after several months of judicial guerilla warfare, the judges in “Military II” rendered a judgment critical, to put it kindly, of the current ICTR Prosecutor, Hassan Bubacar Jallow.  Using unequivocal terms like “a level of integrity” and “a failure of diligence”, they reminded the Prosecutor that his duty was to assist the court in discovering the truth concerning the allegations contained in the indictment, and to render justice in the name of the International Community, for the victims as well as for the accused.  What could have caused the judges to take such a virulent position?  The rules of the ICTR impose on the Prosecutor the obligation to communicate to the lawyers for the accused all the elements that could be useful in their defense.  But, in this trial, it came out that for several years, testimony that favored the accused was not conveyed by the Prosecutor’s office to the Defense.  Let’s not beat around the bush.  It was not only a question of negligence or a lack of promptness in the transmission of this evidence, but rather a willful and deliberate avoidance thereof, no more and no less.  After this purposeful damage, Augustin Ndindiliyimana’s defense was allowed to present new witnesses as well as to recall certain prosecution witnesses for re-cross-examination.  However, the 18 new witnesses requested and the 6 prosecution witnesses to be recalled were reduced to 5 and 4 subsequent to an order by the judges.

The second incident has to do with the use, conscious or unconscious, of false witnesses by the prosecution.  For years this issue has been systematically entered into evidence.  In the present case there can be no doubt about it.  Not only was there a document written by one of the prosecution witnesses admitting that he was forced, under pressure from the Rwandan authorities, to make false accusations against Augustin Ndindiliyimana, but, moreover, a parallel investigation carried out by the Clerk of the Court established that the document composed by this repentant witness was, in fact, written in his own handwriting, and that it was in no way an attempt to mislead the court.

So here is how it stood in 2010.  Unlike the situation that followed the court’s judgment in 2008, there was no question of reopening the arguments.  Because, with the end of the Defense case in June 2009, the debate between prosecution and defense was concluded.  We had to wait for the judgment of the court, which came down on 17 May 2011 (i.e., nearly two years after the final arguments!!!!), in order to be able to appreciate just how the judges had adapted their understanding of the case to include the various tricks pulled by the Prosecutor.  Whatever that might be, this accumulations low blows were in no way in keeping with the honest and calm arguments we have a right to expect.  Today we know that Augustin Ndindiliyimana was sentenced to time served (i.e., his sentence was the eleven years he had already spend in detention awaiting this judgment.).  We can only wonder at the penalty inflicted on him, which seems to be intended more to avoid problems on an administrative level[9] or to escape the anger of the Kigali regime, than to punish any real crime that has been committed.  An appeal has been filed against this judgment by General Ndindiliyimana’s Defense.

Final Considerations

The trial of Augustin Ndindiliyimana is unfortunately not the only one where the means used tended to trample all over any real search for the truth.  Obviously, there was an unjustifiable confusion between the means and the ends.  After that, one could in good faith ask the question: How many people in the past have been convicted under similar circumstances?   This possibility must absolutely be taken into consideration by the ICC in the formation of the rules that will govern its functioning.  But, for the time being, it seems unthinkable that the ICTR would wind up its work without first focusing on a specific process for reviewing certain trials in which the basic rights of some defendants might have been violated.

If it is normal for the International Community to take it upon itself to prosecute crimes that are imprescriptible by national jurisdictions, it is also evident that International Justice must be vigilant, in a most meticulous fashion, to the quality of justice that is rendered in the courts over which it holds authority.  As for the ICTR, it seems that the International Community, considering its shock in the face of its own responsibility in the 1994 genocide, has decided to delegate the management of the results of its cowardice by forgetting that every delegation implies de facto indispensible control.  I am thinking here, especially, of the obstacles to the pursuit of  justice presented by the regular use of false witnesses.

During the time that the ICTR has been at work, how many witnesses have been called upon to give false testimony in order to justify its existence?  There certainly have been some, but their number is insignificant in the scope of the whole experience.   Note should be taken here of the signal case of Abdul Joshua Ruzibiza[10] who came to Arusha to testify in March 2006 in the “Military I” trial.  At this time, he made grave accusations against, among others, the current Chief-of-State of Rwanda.  In November 2008, he quite casually retracted his testimony, claiming that it had all been a pure fabrication on his part.  How can such a flip-flop be allowed without demanding a minimal explanation to the parties involved?  Considering the range of his revelations and the consequences of his retraction, should the International Community, in the absence of any reaction from the ICTR, itself, not have to intervene to shed all possible light on just what led this witness to perjure himself?  Or, if no accounting is demanded of him, could it be because someone wishes to avoid the real motives for his change of heart being made public knowledge[11]?

Still in the context of false witnesses, should we not insist that the Prosecutor have a more critical attitude toward the witnesses selected for him from Rwanda?  We know that nearly all of them are serving long prison sentences.  This alone should move the Prosecutor’s satisfaction with his office’s being used as a mere mail drop for receiving witnesses chosen by the Rwandan authorities, and encourage him to take on the full critical duties of his role in the organization of the ICTR.  Here again, we can only wonder at the International Community’s flagrant resignation as it stands by and watches this parody of justice.  Something that can only exacerbate the tensions still existing within Rwandan society.

If International Justice wants respect, it is essential that it do everything it can to be respectable.  How can this institution hope to reach this goal while it remains enslaved to other purposes than the search for justice?  The unwholesome strategies used for several years now by the current Prosecutor at the ICTR, in hopes of not having to go after those important figures in the RPF and the RPA[12] who have already been charged with war crimes and crimes against Humanity in other national jurisdictions, have certainly not contributed to gaining the court this all-important respectability.  Is it not ironic to have to note that, in the entire history of the ICTR, the only prosecutor to have been sanctioned was the one[13] who, after multitudinous prevarications to be sure, finally expressed an intention to pursue the crimes of the RPF, in accordance with UN Security Council Resolution 955?  What a sorry state of affairs.

Let’s hope that the ICC will go to school on all the accumulated fouls committed over the years by the ICTR.  That all actions taken by the court will be guided by the sole concern of rendering justice in the name of the International Community, justice for the victims and for the accused, as the judges in the “Military II” case so rightfully pointed out.  Before reaching this objective, International Justice must break away from the tutelage it is currently held in by certain States[14].  Only total independence will permit the court to meet its huge global responsibility.  We will, doubtlessly, soon have a more precise understanding of this question due to what could be the outcome of the report by the UN High Commissioner for Human Rights, officially published on 1 October 2010?  We know that this report deals with grave violations of Human Rights and International Humanitarian Law between March 1993 and June 2003 on the territory of the Democratic Republic of Congo.  These grave violations are on the order of war crimes and crimes against Humanity whose motives might place them in the category of genocidal acts, in as far as this qualification can be established by a tribunal.  The crimes in question were for the most part committed by the Rwandan Patriotic Army, whose unchallenged leader is the current president of Rwanda.  This time things are clear:  either this report receives a thorough judiciary follow-up as was suggested by the report’s South African coordinator Navanethem Pillay[15], or the whole issue, like so many others, gets flushed down the memory hole.  If this second alternative prevails, the credibility of the UN Secretary General, of the Security Council and, as a result, of  International Justice will, purely and simply, go up in smoke.  We are at the end of the first quarter of 2012, and, as yet, there has been nothing like a judiciary follow-up to this devastating report that concerns the deaths of several million human beings . . .

Luc Marchal
[translated from the French by CM/P]

[1] My dear friend Faustin Ntilikina (author of “The Taking of Kigali and the Hunt for Refugees by the Army of Paul Kagame”—our wishful translation of the book’s title, as it still exists only in French—ed.), who wrote the Preface, gave me this book on our first meeting in Paris in 2010.  Mpiryana’s “Rwanda:  A Paradise Lost” was published posthumously (the writer died in exile in 2006) by Éditions Sources du Nil and, as yet, has not been translated into English from the original French.  But it is high on CM/P’s list of ‘must translate’s.
[2] Mpiryana probably wrote this in 2003, nine years after the tragic events of 1994 that cast Rwanda into a madness of mourning and confusion. (ed.)
[3] The Internation Criminal Tribunal for Rwanda located in Arusha, Tanzania.
[4] Prime Minister of the Interim Government at the time of the genocide in 1994.
[5] The International Criminal Court. The first permanent international criminal court, it was created in July 1998 by the Treaty of Rome and achieved full legal status in July 2002.  It is located in The Hague, The Netherlands.
[6] These are international courts created specifically for certain jurisdictions:  e.g., Rwanda, ex-Yugoslavia, Cambodia, etc., . . .
[7] Willy Claes.
[8] The commandant at the École Supérieure Militaire (The Rwandan National Military Academy) in April 1994. He tried to serve with the Rwandan Patriotic Army, but his experiences made him choose to go into Belgian exile instead.
[9] The acquittal of General Gratien Kabiligi in 2009, after ten years imprisonment, posed a real administrative problem for the court because the rules of the ICTR had never taken into account the issue of compensation due after an unjustified detention.  This problem has yet to be resolved in 2011.
[10] A former-member of the Rwandan Patriotic Army.  Early in the 2000s he went into exile in Europe.  He is the author of the book Rwanda l'histoire secrète, which was published by Éditions Panama in 2005.
[11] It’s now too late, since the witness in question died in September 2010.  He did, however, go back on  his retractions before his death.
[12] Rwandan Patriotic Army.
[13] Carla del Ponte.
[14] See on this subject the testimony of Carla del Ponte in her book, Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity, (Jan 20, 2009).
[15] She was the president of the “Truth and Justice Commission” that tried to reconcile the conflicts that remained in post-Apartheid South Africa. She was also President of the ICTR from 1995 to 2002.  

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