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Chapter 13: An unattackable adjudicated fact
“The commander in chief had spoken and declared the previous verdict unattackable, holy and superior
to mere mortals – and how could his subordinates dare to contradict him.”
Émile Zola, J’accuse
The one point that the Nuremberg Tribunal and the ad hoc criminal tribunals for the former Yugoslavia and Rwanda have in common is that both involve what you call “victors’ justice”, notes Ramsey Clark who was present at Nuremberg in 1945 and is now lead counsel for the Seventh Day Adventist Pastor Elizaphan Ntakirutimana. It is a question of power over principle in which the goal is to demonize the enemy.
“It’s worth remembering”, adds Ramsey Clark, “that at several occasions during the Nuremberg trials, Hermann Goering shouted out ‘what about Hamburg’, which was a notorious early 1943 heavy bombing of a civilian city; and he shouted out ‘what about Hiroshima’. He could have added Berlin and Dresden”. 115 The former U.S. Attorney General recalled those incidents to show that because victors’ justice is the exercise of power rather than the pursuit of justice, only the actions of one side are addressed and that more than corrupts justice. “Victors’ justice is not founded in truth which involves the fundamental principle of equality, which is not only the mother of justice, it is essential to truth. Selectivity is inherently false because it does not present the whole truth you might say, the whole picture.”
The Nuremberg tribunal that was created after the Second World War still has credibility, and rightly so. It criminalized wars of aggression and reinforced the notion of national sovereignty, both fundamental to the preservation of peace and cornerstones of the Charter of the United Nations. Unlike Nuremberg, however, the ICTR (International Criminal Tribunal for Rwanda) omits reference to wars of aggression and foreign intervention and thereby legitimates them. The ICTR was clearly designed to punish one side and protect the other.
A criminal court is a great way to destroy one’s enemies, insists Ramsey Clark. “You can now tell the world that these vicious Serbs are the guilty ones, that did all this murderous killing and not us who broke up Yugoslavia piece by piece.” By the same token in Rwanda, the horrible “génocidaires” are the guilty ones, not we who destroyed Rwanda by blindly supporting an invading army.
Both the former chief prosecutor of the International Criminal Tribunal for Rwanda, Louise Arbour, and former UN Secretary General Boutros Boutros-Ghali tend to agree with Ramsey Clark about the injustice inherent in the selectivity of ad hoc criminal tribunals. 116 Louise Arbour admits that the fact Rwandans, Serbs and Croatians, are the only ones called to account for their actions makes their singling out less just, but she maintains that it does not make them less guilty. Whereas Justice Arbour continues to laud the ad hoc Tribunals as trailblazers for the chimerical International Criminal Tribunal – chimerical because three of five Security Council members are combating it – , Boutros Boutros-Ghali and Ramsey Clark are much less optimistic about the tribunals, and much less naive.
But is it really naiveté in Louise Arbour’s case? In her public address in Paris on November 21, 2002, Ms Arbour invoked Canada’s Charter of Rights and Liberties adopted with Canada’s 1982 Constitution to reinforce her defence of the International Criminal Court. The reference is very poor because that Charter was the main weapon used in a coup by the Government of Canada aimed at take away the recognized sovereign constitutional powers of Québec’s National Assembly specifically in areas of language and culture. Ms Arbour studiously avoided mentioning that. She also avoided mentioning that Québec’s National Assembly voted almost unanimously to reject the 1982 Constitution and the accompanying Charter. Moreover, on the 20th anniversary of its adoption by Ottawa, the Québec National Assembly unanimously reiterated its rejection of the 1982 coup. It is interesting to note that opposition to the International Criminal Tribunal stems mainly from the fears that the new international body will take power away from sovereign nations in much the same way the Canadian Constitution and Charter of 1982 grabbed power from Quebec.
Former UN Secretary General Boutros-Ghali thinks that the United States favoured the creation of ad hoc tribunals for the very reason that only Rwandans and Yugoslavians would be prosecuted. At the same time, they are vigorously combating the establishment of the permanent International Criminal Tribunal that could prosecute American citizens. “They consider themselves to be above the law”, said Boutros-Ghali. 117
Ramsey Clark demonstrates that the problem dates much further back. “There would be no UN had it been implied in any way in the charter that there would be a criminal tribunal. If it had been put in directly, the meeting would have been over. People would have packed their bags in Washington before the San Francisco meeting and left. The United States would have been the first to leave. The US won’t sign the treaty today in 2002. It’s not peculiar to the US,” he added. “Power does not like to judged, it is determined not to be judged and if it has the power, it won’t be.”
The only court referred to in the Charter and Statutes of the United Nations is the International Court in the Hague that has no criminal jurisdiction and only deals with civil business of limited scope. “Its judges have been disciples of the government that is responsible for their appointment”, points out Ramsey Clark, and they only arbitrate cases the UN member countries agree to submit to it. Former Attorney General Clark maintains that the International Criminal Tribunals for Rwanda and Ex-Yugoslavia are simply not authorized by the United Nations, and are therefore not legal.
The contradiction is glaring. The most stubborn opponent of the International Criminal Court is the country that proposed the two Security Council resolutions creating the Tribunals for Rwanda and Yugoslavia. Moreover, the number one proponent of them was the United States Ambassador to the UN, Madeleine Albright, who soon after became Secretary of State.
The United States’ domination during the process of creating and funding the ICTR has affected all the work the court has conducted both in Arusha and in The Hague. This was illustrated by a highly symbolic event that took place in 1998. When President Clinton swept through Africa in 1998 he stopped over in Arusha, Tanzania, just as his wife did a year earlier. During his stopover, Tribunal staff, realizing that the real boss was in town, raised the Stars and Stripes where the UN flag should have been flying.
The English legal system was adopted rather than the continental legal system. The power to establish the facts and lay charges was therefore given to the Chief Prosecutor, whose position became the most important and powerful at the tribunal. As a result, no prosecutor has been appointed to the tribunal without receiving prior approval from the United States State Department. Moreover, the prosecutors’ fawning behaviour towards the United States and its foreign policy shows that they knew to whom they were indebted.
Carla Del Ponte who succeeded Louise Arbour as prosecutor dared to break ranks by proposing indictment of RPF members. In no time, she was removed from the ICTR and left only with responsibility for ex-Yugoslavia.
The Tribunal’s first prosecutor, Richard Goldstone, from South Africa, published a self-important book entitled For Humanity in 2000 118. The book abounds with obsequious and disingenuous compliments about the US role in the International Criminal Tribunal and particularly about Madeleine Albright’s own personal appointee, David Scheffer, who was seconded to the Prosecutor’s office as special advisor immediately after Goldstone got the job. The South African prosecutor spent much of his time in Washington and New York attending cocktails and other who’s who events. His cocktail circuit was so busy that Secretary General Boutros-Ghali informed Goldstone that other Security Council members were complaining about his too intimate relationship with the Americans. Boutros-Ghali shared that opinion himself.
The most troubling aspect of Richard Goldstone’s book is his description of how the prosecutor’s office obtained information from the CIA to prepare the indictments. Goldstone speaks of the CIA as if it were a data base available for anybody to interrogate and get reliable information. You just punch in a question and out comes the answer. One wonders how a man with such power over people’s lives could be so naive. Or is it just another way to dissimulate pro-CIA propaganda? In case it escaped Mr. Goldstone, an intelligence outfit like the CIA is not known to be an objective supplier of reliable information. It provides information, true or false, when that information can be used to achieve its strategic goals and protect US interests and investments. Unlike the ostensible mission given to the international tribunal, justice is not the CIA’s number one priority.
Richard Goldstone’s blind faith in the United States’ desire for universal good reaches new heights in his conclusion. He expresses contentment at seeing the United States and Europe bomb the hell out of the former Yugoslavia. “Never before had a nation used military force against a sovereign foreign state for the sole reason that the human rights of its citizens were being violated.” 119 Yes, Virginia, there is a Santa Claus.
The man who opened the prosecutor’s office in Kigali clearly wanted to please his former superiors when he wrote his book “for humanity”. Buried in fawning anecdotes about the powers that be in New York and Washington can be found one short paragraph to tell the tale of the Rwandan tragedy. The main omission in that short paragraph tells more than the whole book about what really happened, and about the issue his superiors do not want to be discussed.
“On the night of 6 April 1994 the gruesome genocide began in Rwanda,” writes Richard Goldstone. He proceeds to tell the tale that the reader surely knows by heart. In other words, one fine April evening, Rwandan Hutus decided to eliminate the Tutsis. Not a word about the assassination of two African heads of state. Not a word about the war waged since October 1990. Such a cavalier attitude towards crucial facts is criminal, especially when it comes from a man supposedly devoted to justice. It is chilling to think that he was given the power to choose the people to be charged and prosecuted by the ICTR.
Richard Goldstone was replaced in October 1996 by Louise Arbour. All accounts of Ms Arbour’s appointment to the position concur on one point: United States Secretary of State Madeleine Albright tested her, interviewed her and clearly handpicked her for the job. It could be added that Louise Arbour is indebted to Madeleine Albright for her nomination to the Canadian Supreme Court. When Prime Minister Jean Chrétien appointed her he left no doubt that Louise Arbour’s international notoriety gained with the Tribunal was the main reason she was fast-tracked to the prestigious position on Canada’s highest court.
Louise Arbour’s name was not even submitted for the Tribunal position by Canada’s Department of Foreign Affairs. When Richard Goldstone announced his departure, he recommended appointing a prosecutor who also mastered French. The United States would never have tolerated having a French national appointed since France was a serious rival in Africa and in the Balkans. The candidate therefore had to be a French speaker that was loyal to the United States and had a healthy distrust of France. That kind of French speaker can be found in Ottawa.
In keeping with the wishes of those who appointed her, Louise Arbour regularly made loud and damning declarations against France, while carefully protecting the United States. In December 1997, for example, she went to Paris and accused France of boycotting the International Tribunal and protecting war criminals. She denounced France’s “remarkable defaulting at all levels”, compared to the outstanding co-operation offered by the United Kingdom, Canada and the United States. 120
The ICTR’s subordination to United States’ foreign policy stands out especially in the prosecutors’ refusal to indict criminals from the Rwandan Patriotic Front and to prosecute the perpetrators of the April 6 assassination of President Juvénal Habyarimana. Considerable evidence of massive RPF crimes against the Rwandan civilian population has been collected. All fingers point to the RPF and Paul Kagame as the sponsors of the April 6 assassination. If however the prosecutor were now to charge a member of the RPF in relation to that crime nine years after the fact, it would represent a terrible admission of the ICTR’s failure. Worst of all for the tribunal would be the fact that the whole tale developed to explain the Rwandan tragedy and the horrible war in the Congo would disintegrate like a sand castle on an abandoned beach.
The ICTR in Arusha exists and some 65 prisoners are waiting for their day in court. Victims’ families in Rwanda and elsewhere want to know what happened. The world wants to know what could have caused such a terrible loss of life. Much has been written about the subject, but few people are satisfied with the information they get and the reasons given. Is the International Tribunal capable of casting light on the tragedy? And what are the main obstacles to a fair trial for those who have been charged and are detained in Arusha?
Ramsey Clark doubts that the ICTR will be able to answer people’s questions about the tragedy, and the reasons he gives also explain why the accused are not likely to get fair trials. “I wouldn’t underestimate the central wrong of selecting people for prosecution. It’s enemies they’re choosing”, he told me in an interview. “It really is war by other means and it’s very cruel. In a sense the power of charging is placed in the hands of the Rwandan Patriotic Front, because it controls the facts. The Prosecution could not proceed without it, cases couldn’t be presented without it.”
The vast majority of facts required to make a case or to defend someone remain in Rwanda. In the trial of Pastor Élizaphan Nkatirutimana, for whom Ramsey Clark is counsel, all prosecution witnesses came from Rwanda, but not one defense witness could appear in court in Arusha. Defense counsel knows who the witnesses are and knows that they would be ready to testify, but to oblige them to do so would endanger their lives. If defense counsel even tried to talk to the witnesses, even indirectly, their lives would be in danger. The Arusha tribunal simply does not have the power to make people testify, nor can it guarantee witness protection. It does not event have the power to find witnesses, be it for the prosecution or for the defense.
Another glaring problem is that African prisoners charged by the International Tribunal do not have the right to a lawyer of their choice. In a typical double standard, the European branch of the same tribunal grants this right to prisoners from former Yugoslavia. The Arusha branch blithely chooses lawyers for prisoners against their will. The effect can be disastrous. For example, on January 24, 2003, the 45-year old Anglican bishop Samuel Musabymana died in prison. The ICTR had appointed a lawyer against his will, whereas the bishop wanted to retain the services of the Canadian lawyer Peter Zaduk. Without a lawyer, Bishop Musabymana was unable to obtain the medical care required, nor could he receive visitors and particularly his family that was systematically kept away.
Ramsey Clark also stresses that both the Tribunal and the prosecutor’s office have a mission to convict people. Their mission is a total failure if they do not convict. As a result, the chances that the ICTR helps understand the massacres that occurred in Rwanda in 1994 are very slim. It is equally unlikely that the prisoners detained in Arusha will get a fair and equitable trial.
Louise Arbour became very well known because she indicted and arrested some important people in Europe to the unanimous applause of the international media. Ever since, each time Ms. Arbour appears in public, it is said that the “little lady” was so bold that she made dictators tremble. She made just as many spectacular arrests in Africa, though they received less publicity. The goal was always the same: to obtain international attention for herself and the Tribunal, whose reputation was not good. The best example in Africa was Operation NAKI (NAirobi-KIgali) on July 18, 1997. Ms Arbour had seven people arrested in Nairobi. She then had these “big fish” as she called them forcefully transferred to Arusha in flagrant violation of the ICTR’s own internal regulations.
The main problem was that only two of the seven were indicted before being arrested. The five others were arrested, transferred by van to Arusha and held for months without even being told why they had been arrested. One man, Esdras Twagirimana, was held for two months without ever being charged. When the Tribunal finally admitted its error, it sent Mr. Twagirimana back to Nairobi where he was arrested again and had the ICTR monetary compensation confiscated. 121
Louise Arbour claims that the ICTR was obliged to use methods that other courts could not think of using. Her opinion was that the ICTR required greater flexibility to arrest and hold suspects without laying charges. The ICTR simply could not observe due process as it is applied in Europe and North America. 122
Africa is different, in other words, and unfortunately “our justice system” has to be applied differently. If the representatives of such an august international institution think in fact that Africa is so different, then it would be only logical to ask them to recuse themselves, knowing that they have neither the means nor the understanding and experience to carry out their mandate adequately. That of course has never happened. It appears that they want it both ways.
On the one hand, they claim to apply a legal system and means that they consider to be universal, infallible, and the height of civilization. Anybody coming form a Northern country can do it. They study a few months, read a few books and are sent out in the field to indict, arrest and prosecute Africans. None of them speak or understand any African language. That seems to matter little since “civilization” is ingrained in them.
On the other hand, ICTR apologists behave and talk as though Africa were totally different. Africans are not like us, they will say. They have no democratic culture, no culture of the rule of law. It is the culture of impunity that rules. In short, they are not civilized like we are, and we are thus obliged to waive due process and the rule of law, but of course this is all done in the name of justice and freedom which we all agree upon.
“If you look at the trials, they have all the trappings of colonial power, of European power, of the European system,” observes Ramsey Clark. “If you looked at pictures of colonial courts at higher levels, and at this court, and analyzed them, you would not see much difference in them. And every significant aspect, with the exception that some of the judges are African, but all trained in Western Law, you would see the procedures, the structure and the results are a continuum of colonial law applied under new circumstances. I don’t think they are fooling themselves, they know what they are doing.”
The colonial mentality that pervades these operations is barefaced and brazen. Rwanda also set up courts, though with little success, to judge the 150,000 prisoners packed in small jails for nearly 10 years. After Paul Kagame and the Rwandan Patriotic Front took power, the Justice Ministry was a shambles. Most of the staff, lawyers and judges were in exile or in prison themselves. A large number of people had to be trained to take on responsibility for the legal system. Canadians, Belgians and Americans therefore jumped at the opportunity to develop a program for recruiting and training Rwandan jurists. It was important to prove that these countries had been right to support the RPF.
William Schabas, who was one of the authors of the January 1993 international human rights report (see Chapter 4), headed the training program. To be accepted, candidates had to answer a short questionnaire prepared by Canadians. The questionnaire included the following questions:
- What is the capital of Canada?
- Jean-Paul Sartre is the author of (a) The Second Sex (b) The Outsider (c) Being and Nothingness.
- The author of The Republic is (a) Plato (b) Aristotle (c) Euripides. 123
A more eurocentric set of questions would be hard to find.
Here is a modest proposal. All lawyers, judges, civil servants, army officers, or anybody else applying for international work in Africa, or in their own countries for that matter, must answer the following questions before their applications will be considered.
- What is the capital of Zambia?
- Ferdinand Oyono wrote: (a) God’s Bits of Wood (b) Ambiguous Adventure (c) Houseboy?
- In what era of African history was Sundjata a leader: (a) 16th century (b) 13th century (c) 19th century?
- What modern country bears the name of the Kingdom Sundjata led: (a) Ghana (b) Rwanda (c) Mali?
115 Interview with Ramsey Clark, New York, September 12, 2002.
116 Justice Louise Arbour refused to grant me an interview. Along with some journalists, I managed to question her however at a public meeting on November 21, 2002 in Paris where she was invited to speak about the International Criminal Tribunal.
117 Interview with Boutros Boutros-Ghali, Paris, Novembre 21, 2002.
118 Richard J. Godstone, For Humanity. Reflections of a War Crimes Investigator, New Haven and London, Yale University Press, 2000. Interestingly, the book is prefaced by US Supreme Court Justice, Sandra Day O’Connor, a right-wing Republican in the Barry Goldwater, Pat Buchanan tradition.
119 Ibid. p. 137.
120 Le Monde, December 15, 1997, p. 2.
121 Pierre Duclos, who was implicated in the fabrication of evidence in the Matticks Affair, was part of the team that carried out Operation NAKI in July 1997. He is severely contested by the prisoners who accuse him of using the same methods to establish the “facts” in their cases. (Specific mention should be made of the cases of former Prime Minister Jean Kambanda and Alfred Musema). See the damning report issued by Amnesty International on NAKI and the sad arrest of Esdras Twagirimana: International Criminal Tribunal for Rwanda, Trials and Tribulations, Amnesty International, 1st April 1998. (web.amnesty.org). Throughout his detention, Esdras Twagirimana requested the services of the Montreal lawyer Tiphaine Dickson, who was in Arusha and recognized by the ICTR.
122 Carol Off, The Lion, the Fox and the Eagle, Vintage Canada, 2001, p 320. Since Ms. Arbour refused to grand an interview, it has been necessary to turn to works whose authors she gracefully agreed to meet.
123 Carol Off, op. cit. p. 333.
Criminal Paul Kagame