Remembering Female Prisoners of Conscience on International Women’s Day

Women's Day blog photo (00000002)

Female Prisoners of Conscience (starting top left, clockwise): Diane Rwigara (Rwanda), Khadija Ismayilova (Azerbaijan, now released), Golrokh Ebrahimi Iraee (Iran), and Atena Daemi (Iran) 

Today, as we celebrate International Women’s Day, let us take a moment to consider the plight of female prisoners of conscience, a group of women distinguished both by their exceptional heroism and by their extreme vulnerability.

As the United Nations has increasingly emphasized in recent years, even among activists, journalists and politicians generally, Women Human Rights Defenders (WHRDs) face heightened danger; they are “subject to the same types of risks as any human rights defender, but as women, they are also targeted for or exposed to gender-specific threats and gender-specific violence.” The factors behind these heightened risks are complicated, but can relate both to the type of work that WHRDs often engage in (advocacy related to women’s issues), as well as who the WHRDs are (women, challenging traditional gender roles). Far too often, WHRDs face stigmatization, exclusion, violence and imprisonment.

Take the case of Diane Rwigara, for instance, a 35-year-old Rwandan politician currently being held in pre-trial detention. Diane’s crime was attempting to run against Rwanda’s authoritarian president Paul Kagame in the most recent election. Within 72 hours of her announcement of her candidacy, nude pictures allegedly of Diane were leaked on social media. When this public shaming failed to intimidate her, she was arrested—along with her mother and sister—and charged with a slew of specious offenses related to forgery, incitement to insurrection, and promotion of sectarian practices. Although Diane and her female relatives were arrested about six months ago, the government has refused to release her and her mother on bail while they await trial. There have been credible reports that the women have been tortured while in prison. If convicted, Diane’s mother and sister could spend up to seven years in prison; Diane herself faces a 15-year-sentence.

Sadly, Diane’s story is not unique. In fact, it hews closely to the authoritarian playbook on how to target a WHRD. Those who follow prisoner of conscience cases might remember a similar fact-pattern playing out with respect to Khadija Ismayilova, a prominent Azerbaijani investigative journalist, who was arrested in 2014, after a leaked video of her having sex with her boyfriend—obtained through illegal surveillance in her home—failed to shame her into silence.  After spending nearly 18 months in prison, Khadija was finally released in May 2016, however she remains under a travel ban for at least three more years.

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Incendiary Media Use and The Failure of the Rwandan Case

Use of the media is a powerful tool in crimes against humanity for the following reasons: it allows the wielder to shape contemporary discourse, it helps desensitise and marginalise those who are not being targeted, and it can successfully contribute to the generation, entrenchment and wholesale acceptance of dangerous demographic stereotypes, which often serve as the premise for ensuing violence.

The Rwandan Genocide is a prime example of how influential persons in control of sources of information, such as radio broadcasts and newsletters, can distort and filter the material that the public can access. The International Criminal Tribunal for Rwanda (ICTR), which was tasked with prosecuting various violations of international humanitarian law during the genocide, handed down a landmark judgment on this use of the media. This judgment, along with two significant cases of incendiary media use during the Third Reich in Germany, constitute a large part of the law on attribution of responsibility to the perpetrators.

I will analyse each case in order to arrive at an appropriate standard for responsibility, and to demonstrate why I think the Appeals Chamber of the ICTR did not do a good job.

I. The Case of Julius Streicher 

The Nazi regime in Germany is well-known for its careful, manipulative use of the media. Julius Streicher was the founder and editor of an anti-Semitic newsletter called Der Stürmer, translatable to ‘The Attacker’. He made various far-fetched and malicious claims about Jews in the cartoons and articles he published in this newsletter scapegoating them for Germany’s economic problems and criminal happenings. In an article published in a 1939 edition of Der Stürmer, the author decried the idea of a ‘decent Jew’, stating his intention to make the public of the Third Reich understand why it was a “shameless lie”.

Streicher was tried by a military chamber at Nuremberg. The Tribunal found no direct causality between his acts and specific acts of killing Jews.  He had issued no direct orders to anybody to exterminate the Jews and had not actually participated in the Holocaust. However, his circulation of vitriolic messages was noted as a “poison” which infiltrated the citizenry’s minds and made them subscribe to the general atmosphere of anti-Semitism. It quoted the following statement from Der Sturmer to illustrate Streicher’s ill-intentions: “A punitive expedition must come against the Jews in Russia. A punitive expedition which will provide the same fate for them that every murderer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch.”  The Tribunal considered that his efforts, in line with this sentiment, constituted incitement to murder and extermination of Jews.

In other words, Streicher had successfully contributed to desensitizing the non-Jewish population and was held responsible for crimes against humanity.

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Transfers from Israel are a symptom of the global refugee crisis seizing Europe

For decades, Europe has managed to ignore the majority of refugees housed in countries along the borders of those in crisis – including TurkeyLebanon and Africa’s Great Lakes region – and has had its collective head in the sand over the critical failures to offer them adequate protection and assistance. It has wrongly assumed that aid budgets are a suitable substitute for proper engagement with deeply-entrenched causes of conflict and forced migration. As it turns out, throwing money at a distant refugee crisis without an assessment not only of the broader context of the conflict, but also of the extent to which actions taken by European governments have contributed to instability, eventually catches up with you. So now, as images of thousands of asylum seekers in train stations in Hungary and those coming ashore in Greece show, the protection crisis is no longer out there. The challenge of protection has been laid squarely at Europe’s feet.

Inevitably, the response to the growing visibility of this global refugee crisis has been mixed, ranging from generosity and empathy (as displayed by the welcome received by Syrian asylum seekers arriving in Germany after their gruelling journey from Hungary), to hostility and anger (as evidenced by the image of a camerawoman tripping up fleeing migrants). One of the key factors that determines public opinion is the ability to engage with individual stories – stories that work as an antidote to the xenophobic language that turns individuals into marauding hordes and personal tragedies into a perceived threat. But in order to understand individuals, we must understand why they flee and why they choose Europe. We need to grasp the fact that their stories are inextricably linked to failures of protection and a lack of viable opportunities for livelihoods elsewhere. And to do that, we need to re-trace their steps and understand the many factors that led them to Europe.

One of these stories is told in a report recently published by the International Refugee Rights Initiative. The report, “I was left with nothing”: “Voluntary” departures of asylum seekers from Israel to Rwanda and Uganda is based on interviews with 25 Eritrean and Sudanese asylum seekers, 22 of whom were sent from Israel to Uganda and Rwanda between February 2014 and May 2015 under a so-called “voluntary departure” programme. Due to the circumstances under which they left Israel, and the way in which they were treated on arrival in Rwanda and Uganda, most have subsequently been forced to flee once more. Many are now trying to make their way into Europe. Some have succeeded, others have not.

Their stories show how the dangerous voyage to Europe is not so much a choice as simply the only option left after trying countless other ways to find safety for themselves and their families. All those interviewed had fled conflict and persecution in their home countries, and had gone to Israel in the hope of finding not only a safe place to stay, but also a job to support themselves and their families. To get to Israel, many had risked being kidnapped by Bedouins in the Sinai desert and taken to a hidden camp where families are then extorted for ransom, as shown in the documentary, Sound of Torture. Those who made it to Israel, however, found that their problems had only just begun. More than two thirds of those interviewed had either been put into indefinite detention in Israel’s Holot detention centre (described by one interviewee as “a place not fit for human beings”), or had been threatened with detention, in line with Israel’s harsh treatment of asylum seekers. Until 2013, they were not even allowed to apply for asylum, and afterwards they faced an unfair process. Not surprisingly, since the beginning of 2013 approximately 10,000 African asylum seekers who had fled to Israel seeking refuge have once more been forced to flee – either back to the places from which they had fled, or to other destinations including Europe.

Meanwhile, approximately 1,500 Sudanese and Eritreans were persuaded to join a “voluntary departure” scheme, also documented by Human Rights Watch, run by the Israeli government, under which asylum seekers are sent to Uganda and Rwanda with a promise that they will receive legal status and a cash payment of approximately USD 3,500 on leaving Israel. They chose to leave not because they wanted to go to the third countries offered, but because they could not go home. In the words of one Eritrean asylum seeker: “They said: ‘you can either go to your country or to Rwanda.’ I said: ‘if I could go to my country, why would I even be in Israel to begin with?’” (This determination not to return contrasts sharply with controversial UK Home Office Guidance on Eritrea, which suggests that individuals can return safely as they will not face prosecution for having left without permission on return).

Yet the research documented the fact that, on arrival in Uganda or Rwanda, they were not only not offered any kind of automatic status, they were left with no valid legal documents (often having the few documents that they did have taken off them). They were then approached by people smugglers and “encouraged” to leave the country – or, by way of an alternative, risk deportation due to the fact that they had no legal status. As a result, all of those we interviewed who had arrived in Rwanda, and most of those who had been sent to Uganda, had once more fled. Another Eritrean who was transferred from Israel to Rwanda and was then smuggled into Uganda, explained: “Out of 16 people [who came on the same flight] I am the only one still here. They are all in Libya. I don’t need to go to these places. You go to Juba, from Juba, Sudan – it is dangerous. I don’t want to go there. I want to leave [Uganda] by plane.”

With their options now even further reduced (as one man said, the only document he had left was his Israeli prison identity document), some have subsequently taken the difficult decision to undertake the treacherous journey to Europe. Those interviewed were well aware of the dangers: in April 2015, three Eritreans who had left Israel under this so-called “voluntary” programme were executed by Islamic State in Libya. As one interviewee who knew one of the victims personally said, “Many have left [Uganda] to South Sudan and then they go to Libya. But now there is ISIS there. I don’t know if you saw on Youtube, there was one, he was with us in Holot, I know him. They [ISIS] have slaughtered him. We were together in Holot. I also know of two who are in Benghazi in the jail… They are still waiting there to go to Europe, by sea.”

Their stories point to some of the circumstances that drive individuals and families to risk their lives and get into a leaking boat to cross over the Mediterranean to a fundamentally uncertain future. They are circumstances driven by the fact that the ability to seek a place of safety is becoming increasingly difficult for millions of people – circumstances in which we are all, to some extent, complicit whether through foreign policy decisions taken by our governments or our own inaction. Europe’s refugee crisis, therefore, is not just a European crisis but a global one needing a global response. We need not only to show solidarity and take in more forced migrants in Europe, but to support protection globally, and to engage with greater honesty in the resolution of deeply entrenched causes of forced migration. We also need to hold Israel accountable for its treatment of asylum seekers. While other countries in the region are hosting millions of refugees fleeing Syria, Israel is hosting none, and is forcing out the several thousands of African asylum seekers already in it. It is not only sending those refugees to countries that already host large numbers of refugees, but is also putting their lives in danger and is eventually contributing to refugee crises in other countries.

(Reposted from OpenDemocracy)

Reflections on Rwanda – 20 Years After the Genocide (Part II)

As noted in Part I of this posting, beautiful appearances can also be deceiving.  In reflection, the author probably spoke mainly to those who had formerly been known as Tutsi (since these terms are no longer supposed to be used in Rwanda).  Although it is impossible to gain much accuracy over a week, most Tutsi are likely supportive of their staunchly pro-Tutsi government, presided over by President Paul Kagame.  (There would be some notable exceptions, however, of those who have fallen out of favor with the government, and have fled, or worse; it is clear that the government has little tolerance of opposition.)  Because one is not supposed to ask about ethnicity (as citizens “are all Rwandans now”), it would be fascinating (but somewhat difficult) to ask about the views of Hutus in Rwanda; one might anticipate that a fair number of them would not necessarily share such a rosy assessment.

As an outsider to Rwanda, the author found herself not asking any of the hard questions – certainly not to government officials – out of concerns that it is difficult to know how close one can come to sensitive issues without crossing the line.  At the same time, the author felt somewhat guilty at not having asked hard questions, as that is a form of self-censorship.  Thus, having travelled all the way to Rwanda and back, the author, came home with some of the same nagging questions she had upon starting out.

Some of the most indelible impressions came from visits to key genocide memorials.  These include Murambi (a challenging memorial to visit, the site of a former school, with classrooms full of bodies preserved in lime); the churches of Nyamata and Ntarama (sites of horrific mass slaughter for Tutsis who mistakenly thought they would receive sanctuary), as well as the main genocide memorial in Kigali.  At each of these, tens of thousands are buried.  (There are an estimated 50,000 bodies at Murambi – a number so large it is scarcely possible to imagine).  These memorials help ensure that no one will forget the genocide.  Nor should they.

Yet, the author noticed that despite the fact that, during the genocide, crimes were perpetrated against both the Tutsi as well as moderate Hutu, in Rwanda, the official description at the memorials is “the genocide against the Tutsi.”  One cannot help but wonder whether this simplified narrative results in stereotyping of Tutsi as heroic survivors and Hutu as perpetrators.  One has to ask whether, 20 years later, the country should not use a more accurate and inclusive narrative, one that also acknowledges some of the suffering that occurred on the other side – it is not nearly of the same magnitude, but nonetheless not insignificant.

Admittedly, recognizing the suffering of “the other” is perhaps easier said than done.  Recently, the author read of a monument in the U.K. erected to R.A.F. pilots lost in WWII and their victims.  While many countries erect monuments to the losses on their side (for example, virtually all of the memorials in the former Yugoslavia do this), it takes a mature sense of memorialization, and history, to recognize suffering on the other side.  (One also does not see this in the former Yugoslavia, with the notable exception of the Potocari Memorial outside Srebrenica, which the international community mandated, despite it being in the solidly Serb territory of Republica Srpska).  Of course, we are more than a half century after WWII, and perhaps mature forms of memorialization, as well as historical narratives, take time to recognize that, in any conflict, one group is not wholly good, and the other is not wholly evil.

Rwanda has also switched its narrative that citizens should not be known by ethnic identity as Hutu or Tutsi, but “as Rwandans.”  This is a fascinating attempt at social engineering.  But will it work?  That is a huge question.  Perhaps the younger generations can be schooled to think that way, but surely the adult population knows which group they belong or belonged to, and, to some extent, undoubtedly still associate with that identity.  It is curious that the government itself seems not to follow its own prescription when, at national genocide memorials, it consistently memorializes “the genocide against the Tutsi.”

While the Hutu are also beneficiaries of Rwanda’s rebuilding, it appears that much of the governing class are Tutsi.  Will there be enough successful economic growth for all citizens that the country simply successfully moves on from the genocide?  Or will there remain lingering resentment, with the two groups still cognizant of differences, and, the Hutu, potentially feeling marginalized by the pro-Tutsi leadership, and potentially even demonized?  The chilling problem is that the 1994 genocide was not the first genocide in Rwanda; there have been repeated waves of genocide.  Clearly, the stakes are high if the Kagame regime calculates this wrongly.

Another potential source of resentment could stem from the one-sided justice after the genocide – essentially, victor’s justice.  Génocidaires were tried through three different justice mechanisms:  the ICTR, set up by the international community in Arusha, Tanzania; domestic courts in Rwanda; and, after it proved impossible to handle the cases of all the imprisoned génocidaires through the domestic courts, use of indigenous “Gacaca” trials, that very roughly adjudicated nearly 2 million cases.

Justice for the genocide was imperative.  Genocide is a crime that must be prosecuted, so choosing to have a truth commission (as was used in South Africa) would not have sufficed.  And, 20 years later, the cases (except for a handful of transfer cases and génocidaires recently sent back from Europe), are largely concluded.  However, crimes were committed against Hutus as well, and these were basically excluded from these three levels of trial mechanisms.  Will such one-sided justice leave a legacy of resentment?  It has that potential.

So, while Rwanda appears stable, and prosperous, and is a beautiful country, only time will tell whether it in fact is in fact a success story.  Will the 80% Hutu population see itself as sufficiently benefiting from the country’s remarkable economic recovery?  Clearly, Rwanda’s approach to rebuilding has not been cost free, while donor countries (who perceive mainly a success story in Rwanda), remain largely uncritical of the government.  Ultimately, one has to wonder, 20 years after the genocide, whether in the face of such remarkable success, the government still needs to rule with such an intolerant “top down” approach.  Can it not afford, at this point, to allow a more honest dialogue about the past to develop?  Can suppression of dissent and ethnic identity lead to a healthy outcome?  Only time will tell, but it is possible that ruling with a less stringent hand might permit the development of a more healthy and, ultimately, more stable society.

Reflections on Rwanda – 20 Years After the Genocide (Part I)

This summer, I had the chance to visit Rwanda.  Twenty years after the genocide, my sojourn allowed me to witness and enjoy the remarkable progress made in the country, but also to reflect on the cost of that progress.

It is almost unimaginable what devastation Rwanda has overcome, when 20 years ago approximately 10% of its populations slaughtered another estimated 10% of its population in approximately 100 days.  Thereafter, Rwanda had to rebuild itself, as well as establish justice mechanisms to prosecute the perpetrators.  Due in large part to international guilt at having done virtually nothing to attempt to halt the genocide, Rwanda at least was assisted in rebuilding by the international donor community.

Kigali, today, is a remarkably clean metropolis, where one would be hard-pressed to find litter, due in part to an admirable ban on using plastic bags, and designating the last Thursday of every month as a day where every citizen must tidy.  The streets are swept clean, so that every aberrant leaf is removed.  Those lucky enough to afford them (likely only a fraction of the population), can also enjoy beautiful hotels (such as the Serena and Mille Collines), with swimming pools and lovely restaurants.

Rwanda’s countryside is also quite extraordinary, with rolling hills covering virtually the whole country – hence, Rwanda is called the land of a thousand hills, “mille collines.”  Some are covered with picturesque terracing, to allow cultivation and minimize soil erosion.  Rwanda also boasts three wildlife preserves, two of which are home to a variety of monkeys (including mountain gorillas), and one of which hosts plains animals.  The author’s visit to see golden monkeys in Ruhingeri was truly enjoyable – as they jumped from tree to tree, groomed themselves, ate, and played, all in a thick bamboo forest.

Meetings with NGOs, government officials, academics and others generally revealed a positive vision of Rwanda, with some speaking proudly of how far their country has come since the genocide, the challenges for the future, and tasks ahead in apprehending and trying remaining génocidaires.  (There are a few “transfer” cases that have been sent back to Rwanda from the International Criminal Tribunal for Rwanda (ICTR), as well as some cases of individuals apprehended in various European countries, now also returned for trial).

Beautiful appearances can also be deceiving.  To find out why, stay tuned for PART II of this post.

Acquitted But Still Not Free

ICTRIn 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 Ndindiliyimana et al. (“Military II”) case at the International Criminal Tribunal for Rwanda (ICTR).  The Appeals Chamber reversed the Trial Chamber’s convictions for crimes against humanity and violations of common article 3, 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 in 2004.   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 the ICTR.

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 the Parliamentary elections in September 2013 stated, “Political opposition has been allowed only where it does not question the RPF’s role as the country’s saviour.”

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 Without Borders press freedom index.

Victoire Ingabire, President of the Unified Demcratic 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 in Jeopardy:  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.”   Continue reading

Write On! The Legacy of the ICTR

In collaboration with the International Criminal Tribunal for Rwanda, theWrite On! University of Johannesburg, South Africa, is hosting a conference on the legacy of the ICTR.  The conference will be held on 31 October and 1 November 2013.  It is envisaged that leading academics as well as judges, prosecutors, and defense counsel of the ICTR will present their views at the conference.

With the ICTR nearing its end, it becomes important to evaluate the successes and failures of the ICTR for the future of international criminal law.  The conference will cover a wide variety of topics including: the Tribunal’s contribution to international law; transitional justice and reconciliation; and the challenges of international criminal prosecutions in Africa.

The organizers are currently calling for papers.  A short abstract must reach by May 24, 2013.

More information on the conference is available here.