Portside

[A slightly shortened version of this article is posted at IntLawGrrls ]

In February 2014, Lead Counsel Chief Charles A. Taku and I (with our defence team) won the acquittal of our client, Major F.X. Nzuwonemeye, former Commander of the Reconnaissance Battalion, Rwandan Army in April 1994, in the Ndindiliyimanaet al. ("Military II") case at the International Criminal Tribunal forRwanda (ICTR).  The Appeals Chamber reversed the Trial Chamber's convictions for crimes against humanity and violations of article 3 common to the Geneva Conventions and Additional Protocol II for the murders of the Belgian peacekeepers and former Prime Minister Agathe Uwilingiyimana.

Major Nzuwonemeye joined the other ICTR acquitted persons and those who have completed their sentences (about ten in total), who live under U.N. auspices in a "safe house" in Arusha, Tanzania.  One person, Dr.Andre Ntagerura, has lived in a "safe house" since his acquittal at trial in2004.   The reason is that no country where these men can live in safety and without fear will accept them.   They are separated from their families.   Many of their families live in Europe, in countries where these men were initially arrested, prior to transfer to theICTR.

These men are former members of the Rwandan government and military in 1994 - the very enemy against whom the Rwandan Patriotic Front, led by Rwanda's current President Paul Kagame, waged war.   A year or so ago, Rwanda expressed its willingness to accept these persons.  Based on the government's past and current practices and attitudes towards its opponents (both inside and outside the country), the men fear for their safety if they were to set foot on Rwandan soil.

Their fears are unequivocally justified.  The environment in Rwanda under the current government is unsafe for anyone or any party perceived to be in opposition to the regime.  As The Economist's editorial on thebParliamentary elections in September 2013 stated, "Political opposition has been allowed only where it does not question the RPF's role as the country's savior."

The opponents of the RPF - whether political candidates, or journalists or other individuals - are imprisoned or found dead.  In the last Presidential election in 2010, the First Vice-President of the Democratic Green Party [one of the three opposition parties excluded from the ballot], Andre Rwisereka, was found dead a few weeks prior to the elections.  Leaders (as well as members) of other opposition parties, such as Me. Bernard Ntaganda, Deogratias Mushayidi, Dr. Theoneste Niyitegeka, and Victoire Umuhoza Ingabire remain incarcerated.   Journalists have been killed inside and outside the country.  In fact, Rwanda ranks 162nd out of 180 countries in the 2014 Reporters WithoutBorders press freedom index.

Victoire Ingabire, President of the Unified Democratic Forces (FDU-Inkingi), a coalition of Rwandan opposition parties, returned to her home country after 16 years in exile in the Netherlands to challenge President Kagame in the last Presidential election.  Instead, she was arrested and prosecuted for "genocide ideology," "divisionism" and other charges related to terrorism and is now serving a sentence of fifteen years (see, Amnesty International's  2013 publication, Rwanda inJeopardy:  The First Instance Trial of Victoire Ingabire).  In a Resolution (23 May 2013), the European Parliament stated that it "strongly condemns the politically motivated nature of the trial" and noted that "respect for fundamental human rights, including political pluralism and freedom of expression and association, are severely restricted in Rwanda, making it difficult for opposition parties to operate and for journalists to express critical views." The bottom line is that Kagame's stranglehold on human rights is omnipresent.  It has fostered an environment in which the violations of human rights, the suppression of the opposition, and the muzzling of journalists occur with impunity.

The most recent U.S. State Department Country Report 2013, issued in February 2014, concluded that "the most important human rights problems in the country remained the government's targeting of political opponents and human rights advocates for harassment, arrest, and abuse; disregard for the rule of law among security forces and the judiciary; restrictions on civil liberties; and support of a rebel group [M23] in the neighboring Democratic Republic of the Congo (DRC)."

The report also identified other major problems, including arbitrary or unlawful killings both inside and outside of the country.   In March 2014, South Africa expelled three Rwandan diplomats, after authorities linked them to attacks on former leaders of Kagame's own party, who were in opposition to the Kigali regime.  Patrick Karegeya, former Chief of External Intelligence Services, who had been granted asylum in South Africa, was found strangled in a Johannesburg hotel on 1 January 2014.  President Kagame, interviewed by the Wall Street Journal at Davos, Switzerland, denied any involvement in his death, and reportedly said, "But I add that, I actually wish Rwanda did it. I really wish it."  Kagame claimed that Karegeya, a leading opposition figure, was part of a group that threatened Rwanda and its people but did not describe the threat.

In Rwanda, media pronouncements on the guilt of ICTR defendants, prior to a trial and verdict, void the presumption of innocence.  When there are ICTR acquittals, some civil society groups (including IBUKA, well-known as a state controlled organization) challenge the legitimacy of these judgments.  In the last months, these groups filed a Petition Against Judge Meron (the Presiding Judge in the Appeals Chamber) with the Security Council, opposing the acquittals of government and military leaders and demanding an investigation of the Presiding Judge.)

At the heart of this is the RPF'sconsternation that no former government official or military commander  stands convicted of conspiracy to commit genocide.  Some have been acquitted by the Trial Chamber; others have been acquitted by the Appeals Chamber, which has reversed Trial Chamber convictions for conspiracy to commit genocide.

This charge is the sine qua non of the Rwandan government's "official narrative" of the events of 1994: that there was a pre-planned genocide of the Tutsis by the Hut us, orchestrated by the highest official echelons in Rwanda.   In this "official" recollection of 1994, the whole state apparatus, from the national level down to local communes, from theRwandan army to the local bourgmestre (equivalent of mayor) at the commune level, had been transformed into a killing machine against the Tutsi population.  This is essentially the scenario in the book by the late Alison Des Forges, Leave None to Tell the Story, which has been used as the Bible of the Prosecution in drafting the indictments.

The fact is that the evidence presented by the Prosecution at the ICTR did not prove the allegations of conspiracy to commit genocide beyond a reasonable doubt.  For a fuller critique of, and alternative view to, the "official narrative," based on the trial evidence, including the role of the U.S. and the U.K. in covering up the truth,  see "The Accidental...Genocide' by Professor Peter Erlinder.  

No doubt alarmed that the evidence did not follow the "official narrative," the Petition states:  "...It is disquieting to note that in all cases it has handled, all those known and accused of planning the genocide against Tutsi, no one has been convicted of this act of planning.  Can genocide happen unplanned?"

Rwanda's U.N. Representative, Eugene-Richard Gasana, reiterated this point in his remarks to the U.N. Security Council  in its debate on the international tribunals, held on 5 June 2014:  "Rwanda fully understands that in a human undertaking such as judicial processes, all people indicted will not necessarily be convicted and sentenced.  Nonetheless, we are extremely troubled at the dangerous trend of theICTR Appeals Chamber of acquitting military commanders and cabinet ministers who were, for some of them, heavily condemned by the Trial Chamber..."

Rwanda's Petition and remarks are an affront to the rule of law, because they do not respect the legal judgments of theTribunal.   Nor does the suggestion of an investigation of a Presiding Judge indicate respect for the General Assembly, the  body which elects ICTR judges.

In this context, returning home is not an option for my client, or for others who have been acquitted or have completed their sentences.  The struggle to get countries to accept these men must be based on strict adherence to, and respect for, the rule of law...a principle that is clearly lacking in Rwanda.

[Beth S. Lyons served as a defense counsel in three cases at the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Her review of Professor Nancy Amoury Combs' book, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, was published in the Journal of Genocide Research in September 2011.]