Introduction
Most criminal defence attorneys are asked, at least a few times in the course of their careers, How can you do what you do? How can you defend “x”? How can you defend someone charged with “y”? The query may be made by a friend or relative or even, sometimes, a colleague who practices in another area of law.
In 2006, I had just finished Simba, my first case at the International Criminal Tribunal for Rwanda (ICTR) in Arusha and wrote about my experiences as a defence attorney at the ICTR. The article is entitled: “The Evolution of a Partisan: Observations of a Criminal Defence Attorney at the ICTR,” and is available at Bepress – Evolution of a Partisan.
In 2014, I again wrote about defence work in an article, entitled “Litigating for Justice: Defense Work at the International Criminal Tribunal for Rwanda (ICTR),” available at Litigating-for-Justice.
And it is now 2021, and I am still defending persons accused of international crimes.
The query of why I do international criminal defence work elicits the same responses today as it did years ago… but I have come to the realization that the question I am really answering is: how can I not do this? Especially based on what I have learned over the last fifteen plus years about the nexus of law and politics, through defending clients charged with crimes in international courts and tribunals.
I was ready to “see” political forces at work at the ICTR when I first arrived in Arusha in 2004. I did not have to be convinced that the reality of the Tribunal’s workings was about the relationship between law and politics. But, what I was not prepared for (and experienced once I actually started to do work on my case in Rwanda) was the extent of overt State political intervention by Rwanda in the ICTR cases in Arusha.
The most important lesson I learned at the ICTR is that a State Party in a conflict can exercise power over the judicial mechanism, notwithstanding the intentions of jurists and staff to be impartial and adhere to the rule of law.
***
My background had provided me with a prism with which to view and analyze how law and politics interacted. I was a student activist, and my politics were formed in the struggles of the late 1960’s in the U.S. I entered law school when I was 35 years old after more than a decade as a union activist. I have now been involved in the struggles of peoples for the right of self-determination, for equality and against discrimination for a little more than half a century.
I understood politically that the world is divided into the “haves” and the “have nots,” the oppressor and the oppressed (and similar constructs) based principally on race and class and gender, and also sometimes influenced by other categories. Law reflected these divisions, and the challenge was to use the system – if possible – to level the playing field so that the rule of law was applied with equality to all.
I initially decided to focus on criminal defence because I wanted to talk to juries. (I was trained and practiced in the U.S.) Pre-lawyer, I was a labor organizer, and – in my mind – talking to juries was close to organizing. It involved thinking about how an ordinary person, i.e. a non-lawyer, might react to the defendant, respond to the allegations, analyze the evidence, etc. In essence, I saw part of my Defence task as “organizing the jury” to rally to the Defence narrative or view….whatever that was in a particular case.
Being a prosecutor never even crossed my mind.
So, when I became a lawyer and started at Legal Aid in New York City, there was no question as to which side I would represent. My focus was on making sure the client got a “fair shake” in the criminal justice system.
Getting a “fair shake” required making a critique of the criminal justice system. It meant starting from the premise that the courts and justice are not ensconced in a cocoon, free of “outside” political influence. In fact, the workings of justice itself reflected the power relations and systemic racism of society. One simply had to work (or even watch) arraignments in AR-1 or AR-2 in the middle of the night at 100 Centre Street, Manhattan (or any other time of day) to get a quick lesson in how class and race interact with “justice.” It is immediately obvious, even to the most avowedly “apolitical” Legal Aid lawyer, that getting a “fair shake” was inextricably linked to the politics of the justice system.
Probably all of my cases at Legal Aid were not political cases based on the charges, but the social and political contexts in which they occurred were generally determined by systemic racism, poverty and drugs.
The Nexus of Law and Politics at the ICTR
What immediately struck me about the ICTR cases was that they were – in the first instance – political cases. Politics was written all over them:
- from the Rwandan government’s official narrative of the events of 1994 repeated in every ICTR indictment to
- the fact that not one of the 93 persons prosecuted at the ICTR was a Tutsi, or a member of the RPF, despite the findings and reports of international commissions of systematic crimes against the Hutus.
The ICTR courtroom was an important battlefield of the Rwanda Patriotic Front’s (RPF) war, starting from its 1990 invasion against the Hutu leadership in Rwanda. This applied not only to the selective prosecution of the former Hutu government and military leadership by the ICTR. It also permeated all aspects of the Defence work on the case, including investigations and other preparations for trial, and even more dangerous, the threats to Defence witnesses by the Rwandan government and its agents.
Rwanda’s Interference with Defence Investigations and Witness Appearances
It is important to read the Trial Chamber’s section in the Simba Judgment, at paras. 41-53.[1] And, it is crucial to ask yourself – even if only a fraction of the Defence’s allegations were true – was the defendant given his right to due process by the ICTR. The answer, in my view, is “no,” based largely on Rwanda’s State interference with the ICTR.
Rwanda implemented a “witness as hostage” policy in its dealings with the ICTR, which was operational before the Simba case started in 2004. In 2003 and 2004, for example, witness interference was identified in US State Department reports as a tactic of the Rwandan government.[2] At that time, Rwanda withheld witnesses from the ICTR by refusing to issue travel papers to any witness (Defence or Prosecution). This resulted in the disruption of three trials.
Rwanda’s policy was in retaliation for two events: (1) ICTR Prosecutor Carla del Ponte’s “Special Investigations” into the alleged crimes of the RPF and (2) the Trial Chamber’s decision in the Barayagwiza case.
In 1999, del Ponte had opened “Special Investigations” into the alleged crimes of the RPF, and was about to issue indictments in 2002-2003.[3] Rwanda adopted the tactic of threatening to withhold witnesses from the ICTR, as a demonstration of its displeasure with the investigation. At some point in 2002, the “Special Investigations” were suspended,[4] and in September 2003, the Security Council relieved del Ponte of her assignment at the ICTR and replaced her with Justice Hassan Bubacar Jallow, a Gambian jurist.
The second event for which Rwanda sought “payback” was the ICTR Appeals Chamber’s decision in late 1999, dismissing the charges against Barayagwiza and ordering his release, with prejudice to the Prosecutor, based on the “egregious” conduct of the Prosecutor and the numerous due process violations.[5] Not even five months later, the Appeals Chamber reversed its decision to release Barayagwiza, based on “new facts.” It held that the remedy for the violation of the defendant’s rights should be determined at the end of the trial, at the time of judgment –if he is found not guilty, there should financial compensation, or if he is convicted, there should be a reduction in sentence for violations of his rights.[6]
In sum, the confluence of the initial Trial Chamber decision to release Barayagwiza and the inception of “Special Investigations” was viewed by Rwanda as a threat to its political agenda. And Rwanda was correct. Rwanda – the only country which voted against Security Council Resolution 955 (1994) establishing the ICTR,[7] repeatedly tried to disrupt and obstruct the ICTR – making effective Defence investigations difficult and sometimes impossible, threatening Defence witnesses and violating defendants’ fair trial rights, guaranteed under the ICTR Statute and other international instruments. Rwanda’s policy continued, in different permutations, throughout the ICTR’s existence. Not only had Rwanda’s political agenda permeated the ICTR’s judicial process, but it succeeded in effectively controlling the proceedings at the ICTR.
Rwanda’s “witness as hostage” policy, in addition to halting the ICTR trials at the time, had another important aspect: witness intimidation. This intimidation of Defence witnesses often started long before anyone’s name even appeared on an official witness list in court. For example, the Simba Trial Judgment reveals that there was evidence presented by Defence prisoner witnesses that persons who had been interviewed by the Defence were instructed by the Rwandan prosecutor’s office to write down what had been discussed with the Defence, and that some potential witnesses were moved to a different prison where they were put in isolation cells, upon the order of the Rwandan prosecutor’s office.[8] The Simba case is also cited by Professor Nancy Combs as an example of defence allegations of how Rwanda impeded Defence investigations.[9]
The aim of the Rwandan policies of obstruction was to prevent the prisoner and civilian witnesses from testifying for the Defence in Arusha. In Simba, threats to the security of the only witness (BJK1) who could corroborate Simba’s alibi throughout the entire time period of the charges resulted in his refusal to appear in court. And, the same Trial Chamber refused to accept the alibi statements of this witness, which he had made to both the Defence and the Prosecution.[10]
In Simba, in response to multiple Defence allegations of witness intimidation, the Trial Chamber denied that the intimidation existed, except for one person who “may have been dissuaded” to attend the trial.[11] But, three paragraphs later, it negated its ruling, by holding that this intimidation did not materially prejudice the defendant.[12]
Lastly, the flip side of Rwanda’s witness interference and intimidation of Defence witnesses was its organized preparation, within its State structures and organizations, of the Prosecution witnesses for the ICTR. It is well-known that organizations such as IBUKA or AVEGA[13] prepared their members to testify for the Prosecution. Within the prisons, the prisoners who would testify for the Prosecution were kept together in the “Arusha Aisle,” where they underwent preparation for Arusha. As I recall, this evidence was elicited in the “Military 1” case. I tried to question a Prosecution prisoner witness about this in the “Military II” case. Unfortunately, I was unsuccessful. But the existence of an “Arusha Aisle” and State-led organizations of victims is not so surprising. Rwanda is a society which has perfected the molding of a collective memory based on the RPF’s version of history, and has institutionalized this in its “re-education camps”[14] and laws on “genocide deniers.”
Fighting for Fair Trial Made Me a Political Partisan
Notions of law and justice, of course, played some role in the courtroom. But this role was overshadowed and often overwhelmed by Rwanda’s unrelenting, planned efforts to make the ICTR, whose establishment it had opposed, serve its own political ends.
Every Defence request to implement the client’s fair trial rights was tantamount to being seen by the Prosecution (and treated by the Rwandan press and government) as a hostile act against the Rwandan government. This adds substantial dimension to the notion of “criminal transference” generally experienced by defence attorneys in many jurisdictions.[15] There was simply no “independent” position of the Prosecution, which was routinely advised by Rwandans who identified with the RPF.
It was almost inevitable, then, that fighting as a Defence attorney to “level the playing field” – whether it was in conducting investigations in Rwanda or requesting withheld exculpatory material – made the Defence attorney a partisan in the events of 1994.
The notion of a “fair trial” for ICTR defendants was an impossibility where the ICTR became a battleground for Rwanda’s leadership under the RPF to assert and re-affirm its political power. As Avigdor Feldman, a leading Israeli human/civil rights lawyer, and founder of B’Tselem, has stated in the film The Advocate (about the work of Lea Tsemel, an Israeli attorney who represents Palestinians),
“A fair trial means giving both sides an equal chance. But since the balance of power is a priori unequal, a fair chance is never given [referring to Palestine side in the Israeli Occupation].”
In an ICTR courtroom, there were two sides: the Prosecution and the Defence. But the weight of Rwanda on the Prosecution side guaranteed that the Defence did not have an “equal chance,” rendering fair trial illusory and unattainable.
I quickly came to the powerful realization that struggle in the courtroom is as much about the historical narrative as it is about culpability. At the ICTR, its judgments are a historical narrative of the events of 1994. This is the reason that the government of Rwanda has so tenaciously tried to exercise control over the ICTR, especially the Prosecution. As a former ICTY Prosecutor has pointed out, “The struggle for the interpretation of historical events through the trial record might be as important in [the] long run as the determination of guilt or innocence of the individuals tried.”[16]
The result was that the historical record produced by the ICTR was marred by its selective prosecution of only Hutus, and its failure to hold include the RPF accountable for its well documented crimes in the conflict. As Wilson has pointedly stated, “Unless this changes, we can conclude only that the historical record produced by the ICTR is a partial one, as it has rendered an account of the crimes of just one side in the conflict, the losers.”[17]
This purpose of writing the historical record – from the perspective of the victors – means that notions of justice and fairness are submerged within the judicial process. The struggle for defence attorneys is to pull these notions out of the political morass which is inevitable in the cases in international courts and tribunals. So, if you want to make sure your client has a “fair shake,” you try to extricate fairness and justice from the sometimes muck of political conflict. Not an enticing image, but probably an accurate description of the work I do as an international criminal defence attorney.
[1] There are also a number of law review articles, which can be found through Google, citing Simba as an example of Rwanda’s witness intimidation and interference in ICTR cases.
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[2] The 2003 US Department of State Country Report for Rwanda states:
The International Criminal Tribunal for Rwanda (ICTR) experienced its most troubled year to date. Shortly after Prosecutor Carla Del Ponte announced her intention to indict RPF soldiers for war crimes committed in 1994, a part of the mandate established for the ICTR, Rwandan genocide survivor organizations in January called on prosecution witnesses to boycott the ICTR for a number of reasons, including alleged mistreatment of witnesses. In June the government imposed new travel restrictions on prosecution witnesses that disrupted three trials, and refused to provide access to documents needed by the prosecution. In July Del Ponte informed the U.N. Security Council about these obstructions.
In the 2004 Rwanda Country Report on Democracy, Human Rights and Labor, February 28, 2004, the US Department of State acknowledged that “ government authorities sporadically prevented witnesses from attending and giving testimony at the ICTR, which delayed the judicial process.”
See also Wilson, Richard Ashby, Writing History in International Criminal Trials (Cambridge University Press: New York, 2011), pp. 43-44.
[3] The mandate of SC Resolution 955 was to prosecute both sides of the Rwandan conflict.
[4] See Human Rights Watch letter to Security Council, 25 October 2002.
[5] Jean Bosco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Appeals Chamber, Decision, 3 November 1999, paras. 106-108.
[6] Ibid., Decision, 31 March 2000.
[7] Minutes, Security Council Meeting, 8 November 1994 (S/PV.3453)
[8] See, Prosecutor v. Simba, Judgment and Sentence, 13 December 2005, fn. 54.
[9] Combs, Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010), p. 147.
[10] See, Beth S. Lyons, “Enough is enough: the illegitimacy of international criminal convictions: a review essay of Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs,” in Journal of Genocide Research (2011), 13(3) pp. 293-295, especially fn 70.
[11] Judgment, para. 50.
[12] Judgment, para. 53.
[13] See discussion of Prosecution witnesses who alleged that they were asked to give false testimony by IBUKA in the “Media case” at the ICTR, Combs, pp. 155-156.
IBUKA, formed in 1995, is an organization of genocide survivors. It has played a leading role in propagating the Rwandan government’s view of the genocide, including its fundamental view that anyone who believes that there was a genocide against both Tutsis and Hutus, is guilty of the crime of genocide denial, or negationism. See, for example, IBUKA’s “Open Letter to United States Congress Regarding HR#1426,” 17 June 2010, stating that Professor Peter Erlinder is a genocide denier, at www.businesswire.com. IBUKA has also been the instrument, along with AVEGA, the organization of genocide widows, through which the Rwandan government has implemented its retaliatory policies of non-cooperation to obstruct the workings of the Tribunal. Lars Waldorf, “A Mere Pretense of Justice”: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal,” Fordham International Law Journal, Vol. 33, No. 4, April 2010, pp. 1221-1277 points out that a member of the RPF’s central committee was appointed as president of IBUKA in 2000, “the same year that several Tutsi survivors critical of the RPF’s policies were effectively neutralized,” pp. 1231-1232. On AVEGA’s website, www.rwanda-genocide.org, it states that the association was approved by ministerial decree No. 156/05 on October 30, 1995.
[14] See, Thomson, Susan. “Re-education for Reconciliation: Participant Observations on Ingando.” See also, Mgbako, Chi, “Ingando Solidarity Camps: Reconciliation and Political Indoctrination in Post-Genocide Rwanda,” Harvard Human Rights Journal 18, (Spring, 2005), pp. 201-224.
[15] At Legal Aid in NYC, I have experienced the occupational hazard of being the object of criminal transference where, in court, the judge (and/or the prosecutor) transfers his or her attitude about the crimes charged against the defendant to the defence attorney. Both defendant and defence counsel become identified with the criminal acts alleged. At the international courts and tribunals, particularly at the ICTR, a defence attorney (especially in military and other high profile cases) was often viewed with similar transference: the crimes alleged against a defendant were imputed to the defence counsel….simply because s/he was defending someone and fighting for a fair process. So, the line between fighting for a client’s rights and being viewed as a supporter of the client’s side in the conflict was, at best, blurred and more often, non-existent at the ICTR.
[16] Nice, Professor Sir Geoffrey, “Legal Process as a Tool to Rewrite History – Law, Politics, History,” Lecture, Gresham College, 13 February 2013.
[17] Wilson, Richard Ashby, Writing History in International Criminal Trials (Cambridge University Press: New York, 2011), p. 46.
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