U.S./U.K. Pressure UN Security Counsel to remove the ICTR Prosecutor Ms. Carl Del Ponte to Stop Her Probing Kagame

Published on by HAGANIRIMFURA

U.S./U.K. Pressure UN Security Counsel:
Del Ponte Removed “With Immediate Effect” in October 2003

With all of this on the news and in the public domain, I watched in stunned wonder as, in October 2003, only a few months after her Arusha press conference, Judge Del Ponte was removed from her position as ICTR Prosecutor by the UN Security Council, at the urging of the United States and the United Kingdom. She was replaced by Hassan Bubacar Jallow, who publicly pledged not to follow-up on the prosecutorial initiative announced by his predecessor to go after both sides in the Rwanda War. Del Ponte was permitted to retain her post at the ICTY, indicating her removal was not a question of competence, but the publicly asserted reasons were “efficiency” questions that, on their face, were murky at best. Despite her protestations, the duties of the Chief Prosecutor’s office were split, and Mr. Jallow was appointed to replace her at the ICTR. Jallow publicly pledged not to prosecute members of the Kagame Government and all settled back to “normal” at the ICTR.[51]

But what could Carla Del Ponte possibly have been referring to when she announced that members of Kagame’s Government had also committed crimes? And, if Carla del Ponte had the evidence to prosecute members of the Kagame Government in 2003, and the public record revealed manipulated one-party “elections” in Rwanda, and massive civilian killings in the Congo by the Rwandan military; why had no RPF prosecutions been launched before 2003? Why did Colin Powell take time out from laying waste to Iraq to call for her removal from office, when her announcement only meant that she was carrying out the mandate of the Security Council to prosecute all crimes committed in Rwanda in 1994?[52]

Was it possible that the highest levels of the United States government and its closest ally were not aware of the years of massacres and economic piracy being committed by Kagame’s RPA and its surrogates in Congo, as reported by the UN experts and numerous journalists following events in there? Was it possible that U.S. sources were unaware of the manipulation of the “elections” documented by the EU and the obvious elimination of all political opposition to Kagame within Rwanda, which had left him with military control and virtually dictatorial powers? Hadn’t US President George Bush been informed this had all been going on before he met with Paul Kagame at his ranch in Texas during Kagame’s state visit to the US in March 2003?[53]

By the end of 2003, all recent information emerging at a public level pointed to either: highly unlikely ignorance on the part of the United States and the United Kingdom (Kagame’s major patrons since both governments had been the first to immediately recognize the RPF government in July 1994) or publicly unacknowledged support and acceptance of the Kagame government by the United States and the United Kingdom, so well-established that it would be unaffected by hard evidence of massive crimes committed by that government both inside and outside Rwanda’s borders after the RPF seized power in July 1994. However, hard evidence that this apparent quid pro quo existed, and that it has had a continuing impact on shaping the story of the “Rwanda genocide,” and the ICTR, itself, was not confirmed until September 2007, first by Carla Del Ponte’s long-time press aide Florence Hartmann, and in February 2008 by Judge Del Ponte, herself.
The 2007-08 Del Ponte/Hartmann Revelations:
U.S.-U.K./Rwanda Political Quid Pro Quo Distorts ICTR Mandate

Some of these questions were answered on September 10 of 2007 when the former long-serving press-aide to Ms. Del Ponte, Florence Hartmann, published Paix et Chatiment, that described Del Ponte’s years at the Yugoslavia and Rwanda Tribunals.[54] Hartmann had direct access to Judge Del Ponte both before and after 2003, and, after the publication of Hartmann’s book, Del Ponte published her own book in February 2008, War Criminals and Me,[55] that recounts some of the same incidents and supports Hartmann’s account. Carla del Ponte has not disavowed any of the accounts of events described in the Hartmann book.[56] A small number of pages are devoted to the Rwanda Tribunal, and specifically the events of the summer of 2003, when Del Ponte made her public announcement about evidence sufficient to prosecute the Kagame Government for 1994 war crimes, and the events that followed which resulted in Del Ponte's being removed from office.[57]

The Hartmann book explains that, shortly after her announcement, Prosecutor Del Ponte was summoned to the U.S. State Department in Washington, D.C., to meet with Bush Administration “War-Crimes Ambassador,” Pierre Prosper, who was no stranger to the ICTR, or the Rwanda disaster. He had formerly been a member of her office at the ICTR, and had actually prosecuted one of the first cases that convicted a leader of the losing side.[58]

According to the book, Prosper flatly ordered Del Ponte to drop all notions of prosecuting the Kagame Government. He explained that the United States had “strategic interests” in Central Africa that included a close working relationship with the Kagame Regime.[59] He specifically mentioned cooperation by Rwanda in excluding U.S. persons from the jurisdiction of the International Criminal Court, and military cooperation of long-standing that her prosecutions would disrupt. The book cites dates, places, names and details that only Ms. Del Ponte could have known, and which she has not disavowed in her own account.

The book also explains the behind-the-scenes machinations of the U.S. and U.K. delegations to the Security Council that eventually resulted in her removal from office in the fall of 2003. So, the Hartmann book solves at least one part of the “mystery.” Because of U.S./U.K. relations with the Kagame Government, according to Ms. Del Ponte, ICTR prosecutors who even consider prosecuting the side that won the Rwanda War will not have long U.N. careers. Presumably this would apply to other ICTR personnel as well, and it is difficult to imagine that the ICTR Judges have not learned this lesson, too.

Military-I Trial Evidence Confirms the ICTR “Cover-up” of RPA/F Crimes

Plainly stated, the Hartmann and Del Ponte books describe the entire ICTR enterprise as a “cover-up” of what really happened in Rwanda in 1994, but do they explain how the “cover-up” began, or how long it has been going on? During 5-years of research at the ICTR, I managed to see all of the UN-Rwanda files that had been generated at UN headquarters by Kofi Annan’s Department of Peace Keeping Operations (DPKO) between 1993-1995, and those swept up from the UNAMIR (United Nations Mission in Rwanda) in Kigali when it closed down. Many of these documents are in the evidentiary record of the Military-I trial,[60] and the rest are on the web in a researchable database, so that other researchers can verify my conclusions.[61]

I also benefited from the domestic U.S. Freedom of Information Act (FOIA) requests for contemporaneous, unclassified reports about Rwanda, generated by the State Department, Pentagon and CIA. The “disclosure” rules of the ICTR made most of this possible, and are an unintended consequence of establishing Tribunals that purport to embody even a small level of due process. The Tribunal rules have permitted the accumulation of documents that the “vanquished” never get an opportunity to examine under “normal” circumstances . . . and may never become public, under other circumstances. In addition to these contemporaneous documents, the Tribunal also made it possible to interview witnesses scattered all over the world, and to include their sworn testimony in the ICTR record. However, not all of the most important testimony is publicly known because of the “closed session” procedures which have the effect of shielding important testimony from public view.

Carla Del Ponte was not the first ICTR Prosecutor to conclude that members of the Kagame Regime should be prosecuted. As briefly mentioned earlier, in 1997, Michael Hourigan recommended that Col. Bagosora and Col. Nsengiumva of the losing side be brought to book and, based on his investigations, both Bagosora and Nsengiyumva where indicted and are defendants in the Military-I trial, in which my client is also a defendant. But he also recommended that President Kagame, himself, be arrested for the assassination of the Rwandan and Burundian presidents that triggered the 90-days of violence.

The ICTR-OTP Had Evidence to Prosecute Paul Kagame
for Habyarimana’s Assassination as Early as 1997

As mentioned above, according to the sworn affidavit of UN investigator Michael Hourigan, shortly after he presented his report recommending the prosecution of Paul Kagame, Chief Prosecutor Louise Arbour ordered him to drop the Kagame investigation, to forget it had ever happened, and not retain any of his notes.[62] Instead, he resigned in 1997, as did the other members of his team shortly thereafter, and his affidavit and copies of his notes are now in the evidentiary record in the Ntabakuze Defence in the Military-I case at the ICTR, as is the affidavit of former UNAMIR Chief Military Intelligence Officer, Major Amadou Deme, describing the evidence he had turned up in 1994-95 pointing to Kagame having ordered the assassinations.[63]

The Del Ponte book and the sworn statements of barrister Hourigan raise serious questions about the real “mission” of the ICTR. Former ICTY/ICTR Prosecutor Ms. Arbour has never said publicly whether Canada’s allies (the same super-powers that threatened and removed Ms. Del Ponte) had anything to do with her orders to “bury” the prosecution of Kagame. But every ICTR prosecutor, and Judge, must have gotten the message that keeping all of the blame for the Rwanda tragedy firmly focused on the losing side is the only way to hold onto one’s job![64] The unfortunate fact seems to be that the ICTR is in the business of creating impunity for war crimes, not exposing and prosecuting the real perpetrators.

The witnesses testifying at the ICTR in the Military-I case have included former members of the Kagame army like Lt Joshua Ruzibiza, who was accompanied by a bodyguard provided by the European government that has granted him asylum.[65] His 2006 book, The Secret History of Rwanda, describes in great detail how he, and a select assassination team, launched the missiles that brought down the Presidents’ plane on the night of April 6, 1994, on orders from then-Gen. Paul Kagame.[66] Other witnesses, also former officers in the Kagame army, testified how they secretly transported the missiles from Uganda to Kagame’s own house in Mulindi for safe-storage, and then to Kigali for the launch.

Several former RPA/F officers testified to the detailed planning and the accumulation of weapons and ammunition from Uganda that took place between August 1993 and April 1994. They also testified that the order for the final assault to seize power was given by Kagame on the night of April 6, shortly after he confirmed that former President Habyarimana had died in the attack on his plane. All of the commanders of the military units had been called into RPF headquarters by Kagame a few days before and were given their orders to begin the war during the Africa Cup soccer match on the night of April 6.[67]

For more than 10-years, every effort to raise the assassination of President Habyarimana as the “triggering” event of the civilian massacres in Rwanda was declared “irrelevant” by ICTR judges. Whether they were influenced directly or indirectly by the same pressures that were brought to bear on Carla Del Ponte, Michael Hourigan, and, possibly, Louise Arbour, is impossible to know, but it is undeniable that before the Ntabakuze Defence in the Military-I case accomplished it, the assassination of the President was never discussed at the ICTR. And, even today, the Chief Prosecutor who replaced Ms. Del Ponte is on record as publicly stating that the assassination is “not within the jurisdiction” of the United Nations International Criminal Tribunal for Rwanda.[68]

But, despite the obstacles, not only was evidence of the Habyarimana assassination put into the Military-I trial record, but more than a thousand United Nations and U.S. Government documents that had only been in the prosecutors files have been put before the ICTR judges.[69] One of these is a May 17, 1994, UNHCR report describing huge massacres of civilians taking place in southeastern Rwanda, an area long-controlled by the invading Kagame army.[70]

And numerous references to the “Gersony Report” that had been prepared for the United National High Commissioner for Refugees (UNHCR) based on the only “independent” human rights investigation in Rwanda since the Kagame Government seized power in mid-July 1994, which detailed assassination-style killings of “at least 30,000 civilians” in southeastern Rwanda by the Kagame RPF army, and the UN documents reveal the fire-storm that erupted in its wake.[71] And, perhaps even more significantly, the September 17, 1994, memo from George Moose to the U.S. Secretary of State makes clear that the upper levels of the Clinton Administration knew that the RPA/F was “killing 10,000 a month” in a small area of southeastern Rwanda.[72]

But the U.N. documents, now in the record at the ICTR, reveal more.

The ICTR “Rwanda-Genocide Cover-up” of RPF Crimes

In the fall of 1994, both Kofi Annan and the chief representative of USAID in Africa (a U.S. State Department agency), Brian Atwood, traveled to Kigali shortly after Gersony’s findings became known. The U.N documents report a meeting with the new Foreign Minister of the Kagame Government, Jean Marie Ndagijimana, who had been elevated to his position only months before from the Ambassadorship to France in the previous government. He was one of the French-speaking “Hutus” brought into the new government in a show of unity. The Foreign Minister also testified at the ICTR and confirmed all of the details reported in the UN documents.[73]

According to the U.N. documents, the Foreign Minister was told that disclosure of Gersony’s findings “would be embarrassing to the Rwandan Government and to the U.N.” Why the crimes of the RPF should be embarrassing to the United Nations and United States is subject to speculation, but both the UN documents and the former Foreign Minister confirm that the attempt to cover-up the RPF/A crimes by the United Nations and United States goes back at least to August 1994.[74]

Now the “cover-up” is almost complete. Within a few months the ICTR will shut down, and current ICTR Prosecutor Jallow will be conveniently unable to carry out the Security Council mandate to prosecute the crimes described in ICTR evidence and the international warrants issued by France and Spain.[75] The Rwandan Government, with U.S. and U.K. support, is actively campaigning to have ALL of the ICTR cases transferred to Rwanda.

No one at the ICTY would dare to suggest transferring Croats to Serbia, or Serbs to Bosnia, when the ICTY shuts down, but the ICTR has always been treated “differently.”[76] The Kagame regime also wants all ICTR records and all UN prisoners to be transferred to Kigali. And, although UN records for 1994-95 list no more than 500 major criminal suspects immediately after the war, more than 100,000 suspects have been held in Rwandan prisons for more than a decade, and the Kagame government has recently issued over 40,000 new warrants for both Hutu and Tutsi “genocidaires” in the Rwandan diaspora. After the 2003 election and numerous accusations of “negationism” and “divisionism” directed at any “Hutu” or “Tutsi” who is critical of the Kagame regime, it appears that the Kagame government’s impunity is being extended far beyond the ICTR to reach opponents of the Kagame government worldwide.

The Security Council has announced that new trials will be over in 2008 and the appeals in 2010 . . . soon the ICTR will be no more.[77] IF all goes as planned, the ICTR will soon pass into history as the only International Tribunal that was not designed as a tool of “victor’s justice” . . . but became one, in practice.

Rejecting Juridically-Constructed Impunity:
The Only Chance for Reconciliation in Rwanda.

I have been declared a criminal by President Kagame, himself, for putting these facts before the ICTR and the court of public opinion. Under the laws of Rwanda, I have violated the ban against “negationism” by questioning the Kagame version of events. My former Rwandan investigator has been threatened with arrest and is seeking asylum. A Rwandan ICTR lawyer was been arrested when he attended the court,[78] and a defense investigator is being prosecuted for manipulation of evidence by the same ICTR Prosecutor who has refused to follow Ms. Del Ponte’s lead, the recommendations of Judge Bruguière or the indictments and warrants issued by Spanish Judge Andreu.[79]

One has to hope, now that the manipulations of the ICTR by the U.S. and U.K. for their own political purposes are known at the ICTR and increasingly outside of Africa, that the good judges in Military-I will carefully evaluate the evidence and require “proof beyond a reasonable doubt” before they permit my client, Major Ntabakuze to be convicted . . . but it is hard to be optimistic. ICTR process has made it possible to document a narrative which contradicts the story told by the “victors,” something not possible at Nuremburg or Tokyo, and which permits a more balanced and accurate historical appraisal of the Rwanda war . . . and genocide. Now that this evidence has been discovered, it can be evaluated by scholars and historians, even if it cannot change the pre-ordained outcome of the Tribunal.

And, perhaps, this will eventually prove to be the greatest contribution that the ICTR has made to the development of “international justice.” And if the more accurate historical record provides the basis for a sharing of responsibility for the undeniable tragedy of Rwanda, a South African-style “reconciliation” process might be possible for Rwanda. However, if the ICTR succeeds in fixing blame only on the losing side of the Rwanda war, through juridically-created impunity, the likelihood of a stable peace in Rwanda will have been reduced to the vanishing point . . . and another Rwanda tragedy is a predictable consequence.

Rejection of juridically-constructed impunity is not only a necessity for justice to be achieved in the short-run, it is also necessary to prevent a distortion of international legal institutions into political tools of the powerful of the world, in the long-run. With respect to Rwanda, juridically-constructed impunity is certain to be the source of future conflict, created by a false reconstruction of history. In the absence of at least some mutual acceptance of responsibility, the ICTR will actually establish the ground for future explosions of violence, which is the inevitable consequence of a “peace” imposed by force and the power of external actors. And that there are nations in the world still in a position to project, even to distort the operations of supposedly neutral juridical institutions established under the auspices of the United Nations, despite the good intentions of human rights advocates.

This will be the unfortunate legacy of the ICTR, unless the Security Council insists that its mandate be fulfilled . . . despite the now well-established intervention of two of its most powerful members.

Prof. Peter Erlinder
President, ICTR-ADAD (Association des Avocats de la Defence), Arusha, TZ
ICTR Lead Counsel, Military-I Trial (Prosecutor v. Ntabakuze)
Past-President, National Lawyers Guild, New York, NY
c/o Wm. Mitchell College of Law
875 Summit Av.
St. Paul, MN 55105
peter.erlinder@wmitchell.edu / (651) 290-6384

© Prof. Peter Erlinder, May 2008

1 President ICTR-ADAD (Association des Avocats de la Defence), Arusha, TZ; ICTR Lead Defence Counsel, Prosecutor v. Ntabakuze (ICTR Military-I Trial); Past-President, National Lawyers Guild, New York, NY; Prof. of Law, Wm. Mitchell College of Law, St. Paul, MN.

2 Hartmann, Paix et chatiment les guerres de la politique (Flamarion, Paris September 27, 2007), p. 271-72: “It is unfair that politics undermines our work. I find it wounding to see that we have managed to ridicule the principles of international justice . . . because Kagame has signed a bi-lateral agreement [with the United States].”

3 Whether the Security Council has a proper mandate to establish tribunals under Chapter 7 “peace-enforcement” powers is an issue raised at both the ICTY and ICTR, and remains the source of some controversy.

4 Recent revelations indicate that the task of the ICTR Prosecutor has been complicated by the necessity to re-cast the Rwanda war, and the resulting prosecutions, in a manner that is actually inconsistent with the evidence showing that the Rwanda narrative upon which the ICTR prosecutions have been grounded has been complicated by the political necessity of creating impunity for the victors in the Rwanda war. See Del Ponte and Hartmann references, Infra.

5 See, infra.

6 See, infra.

7 However, on May 27, 2008, Hirondelle Newservice reported that ICTR President Dennis Byron will report to the Security Council that the 2008 “completion strategy” is not realistic.

8 The ICTR has recently approved Rwanda as a possible transfer site, despite the recent indictments of leading figures in the Rwanda government for crimes committed during 1994. See indictments of Judge Bruguière (France, November 2006) and Judge Andreu (Spain, February 2008). See also commentary by author, “The Great Rwanda Genocide Coverup” February 18, 2008, “Different Justice at the Rwanda War Crimes Court,” March 10, 2008, JURIST website, (U of Pittsburgh, U.S.) However, the OTP request to transfer the Prosecutor v. Munyakazi case was rejected by one of the ICTR trial chambers on May 29, 2008.

9 Of course, the Nuremburg and Tokyo Tribunals failed to consider the fire-bombing of Dresden or Tokyo, much less atomic weapons used on civilians in Hiroshima and Nagasaki. Delineating the nature of these acts as “crimes” is beyond the scope of this paper, but the commission of “crimes” by all participants in WW-II is beyond dispute, the asserted justifications for their commission are another matter.

10 Hartmann, Paix et chatiment les guerres de la politique (Flamarion, Paris September 27, 2007), p. 271-72. Ms. Hartmann reports the 2003 exchange between Ms. Del Ponte and Iqbal Riza, the first assistant to Kofi Annan in 1994 in the Department of Peacekeeping Operations.

11 For purposes of this paper, this brief historical review has been drawn from a much more detailed account in the author’s forthcoming book on the ICTR and the Rwanda War. For a description of the war from the perspective of a former officer in the RPF/A, see Military-I exhibit DNT 218, Ruzibiza, The Secret History of Rwanda, (Paris, 2005)

12 The NRA of Uganda, under Yoweri Museveni, had deposed a socialist-oriented Milton Obote in 1986, after a war for power in which at least 300,000 civilians were killed between 1981-1985. See, Mamdani, When Victims Become Killers, (Kampala, Fountain 2001) and Waugh, Paul Kagame and Rwanda, (McFarland, USA 2004). In 1996 and again in 1998, the combined armies of Uganda and Rwanda invaded the Eastern Congo and established de facto control over the economic and material resources of that region with Kigali and Kampala becoming major trading centers for gold, diamonds and precious minerals that are now being exported through Uganda and Rwanda, rather than westward down the Congo River as had previously been the case. See, 2003 Experts Report on Congo and references, infra.

13 Testimony at the ICTR from former RPA officers identified several ammunition/weapons caches of 200-300 tons in the area of Rwanda controlled by the RPA, much of which was delivered in 1993 after the RPA had established military dominance in February 1993.(i.e., Lt. Abdul Ruzibiza March, 9 and 10, 2006, and others).

14 See notes and Amnesty International Report of September 1994, infra.

15 ICTR Military-1 exhibit DB 71: The RPA military superiority was documents by Gen. Dallaire in the Sept 1993 UNAMIR Reconnaissance Report filed at the ICTR.

16 The Arusha Accords were signed in August 1993.

17 The political consequence of the resumption of the war was that the RPF became the ruling political power as a compliment to the military superiority the RPA had achieved in February 1993 and demonstrated conclusively in April-July 1994.

18 The final sticking point was the inclusion of an “anti-Tutsi” party, the CDR, if it agreed to modify its positions as required by the Arusha Accords. By April 1, 1994, the CDR had agreed to the conditions imposed by the Arusha process and all parties, safe the RPF, agreed that the CDR must be permitted to joint the “unity”/transition government.

19 ICTR Military-1 exhibit DNT 121: April 1, 1994, Code Cable from U.S. Ambassador Rawson in Kigali to U.S. Embassy in Kampala Uganda.

20 A March 28, 1994, cable from Gen. Dallaire describes the FAR Gendarmes as completely non-functional as a result of the long war and incapable of addressing ordinary law and order issues, much less a massive increase in violence as had recently occurred in Burundi after the assassination of the Burundian President.

21 See references infra.

22 ICTR Military-I testimony of U.S. Ambassador to Rwanda 1990-1993, Robert Flaten, July 2006. (It is worth noting that, after Amb. Flaten called for a Truth and Reconciliation Commission for Rwanda, along with Paul Rusesabagina of Hotel Rwanda fame, he was publicly accused of being a “gun-runner for the Hutus” during 1994 by the Rwandan Ambassador to the U.S. at a Chicago conference sponsored by Rev. Jesse Jackson in the summer of 2007 – author)

23 ICTR Military-I exhibit DNT 315. April 7, 1994, cable of Amb. Prudence Bushnell: “If, as it appears, both Presidents have been killed, there is a strong likelihood that widespread violence could break out in either or both countries, particularly if it is confirmed that the plane was shot down.”

24 Burundian massacres of several hundreds of thousands of mainly Hutu civilians after the assassination of President Ndadaye in October 1993, as well as in 1972 and 1988. See Lemarchand, “Managing Transition Anarchies, Rwanda, Burundi and South Africa,” Journal of Modern African Studies, Vol. 32, No. 4 (Dec. 1994) and numerous other sources.

25 A sustained military campaign such as that conducted by the RPF is indicative of necessary pre-planning and organization of materiel and logistical support.

26 ICTR Military-I exhibit DNT 259. May 17, 1994, UNCHR Report of RPF killings at Rusomo Bridge to Tanzania, over Kagera River, in southeastern Rwanda. This evidence was put into the ICTR record by the Ntabakuze Defence, NOT by the Prosecution. (emphasis added).

27 See, ICTR Military-I defense Exhibit DNT 258:
Amnesty International, Rwanda: Reports of killings and abductions by the Rwandese Patriotic Army, April-August 1994, October 20, 1994:
• 1. Introduction:
Amnesty International has known for years that the RPF closely monitored and
controlled movements of foreigners in areas under its control. Journalists and
representatives of humanitarian organizations rarely talked to Rwandan citizens
under the control of the RPF without an RPF official being present. This ensured
that before the new government came to power on 19 July 1994 very limited
information about abuses by the RPA could be gathered and made public . . .
However, Amnesty International has received numerous reports of human rights
abuses committed by the RPA since the war in Rwanda began in October 1990. These
have included hundreds of deliberate and arbitrary killings or possible extrajudicial
executions and disappearances . . . reports of civilian supporters of the RPF being allowed
to kill opponents . . .

28 ICTR Exhibit DNT 260A:

New York Times, August 5, 1994: Bonner, Raymond, “Rwandans Say the Victors Kill Many Who Go Back”

KADUA, Rwanda, Aug. 4 -- . . . Recently, hearing from the new Government in Kigali that it was safe to go home, some have tried. And now they are coming back to the wretched refugee camps with reports that some Hutus [have been
killed by the] Rwandan Patriotic Front . . . In separate interviews, other Hutu
men and women . . . gave similar accounts of men tied up and led away by Patriotic Front soldiers and of men, women and children being killed when they returned
to their villages. There have been persistent rumors of atrocities by the Patriotic
Front but no confirmations until now. But, two reporters who spent several hours today in separate interviews with refugees found their accounts credible.

New York Times, September 28, 1994: Bonner, Raymond “U.N. Stops Returning Rwandan Refugees,”

GENEVA, Sept. 27 -- “In a sharp reversal of policy, the United Nations has
stopped encouraging Rwandan refugees and is refusing to even assist those who
wish to go home because of a report that the new, Tutsi-dominated Government
in Rwanda has killed thousands of members of the Hutu ethnic group . . . the report
concluded that there was ‘an unmistakable pattern of killings and persecutions’ by
soldiers of the Rwandan Patriotic Front, ‘aimed at the Hutu populations’ . . . the report
was based on a five-week investigations that included interviews with 300 Rwandans
in 41 of Rwanda’s 145 communes and at nine refugee camps.”

Le Monde, October 10, 1994
“Rwandan: Un rapport confintiel faisat état de la mort de 30,000 Hutus controverse
persiste sur les allegations du HCR (RAPPORT GERSONY)”

See also, ICTR testimony of former Rwandan Foreign Minister Jean Marie Ndagiyimana,
November 2006 and documents associated therewith.

29 ICTR Military-I defense Exhibit DNT 261:

Human Rights Watch, Absence of Prosecution, Continued Killings, Sept. 1994:

• Killings, Arrests and Disappearances of the Accused, p. 3

• At Kimuvu parish . . . priests were evacuated when RPF soldiers arrived to make camp on the grounds. When the priests returned in July, they found a considerable number of bodies. Apparently, the victims, whose arms had been bound, had been assembled for interrogation by the soldiers and had been beaten to death. The priests organized the burial of the bodies in three large mass graves which were located and photographed by Human Rights Watch/Africa.

• On July 13, in the southern town of Butare, RPF soldiers gathered several hundred displaced persons . . . most or all of the men have not been heard from since. The men were detained in the veterinary school . . . Witnesses related that for a period of two days there were sounds of people being killed in the woods next to the school.

• (many other examples included in report)

• The RPF Killing of Civilians During the War, p. 5

30 ICTR Military-I defense Exhibit DNT 258:

Amnesty International, Rwanda: Reports of killings and abductions by the Rwandese Patriotic Army, April-August 1994, October 20, 1994:

• 1. Introduction:
Amnesty International has known for years that the RPF closely monitored and controlled movements of foreigners in areas under its control. Journalists and representatives of humanitarian organizations rarely talked to Rwandan citizens under the control of the RPF without an RPF official being present.
This ensured that before the new government came to power on 19 July 1994, very limited information about abuses by the RPA could be gathered and made public . . . However, Amnesty International has received numerous reports of
human rights abuses committed by the RPA since the war in Rwanda began in
October 1990. These have included hundreds of deliberate and arbitrary
killings or possible extrajudicial executions and disappearances . . . reports of
civilian supporters of the RPF being allowed to kill opponents . . . many prisoners
held by the RPA have been subjected to a particularly painful form of tying . . .

• 2. Deliberate and arbitrary killings by the RPA, p. 3.

• 3. Abductions and “disappearances” by the RPA, p. 8.

31 ICTR Military-1 Evidence, DNT 264.

32 See, ICTR Military-I testimony of fmr. RPF Foreign Minister Jean-Marie Ndagiyimana, November 2006.

33 Donatella Lorch, New York Times, April 28, 1995:

The United Nations says some 2,000 ethnic Hutu refugees were killed -- shot, trampled or hacked to death -- when Rwandan Government troops opened fire Saturday on a surging crowd in Kibeho. Many bodies were buried before the United Nations gained complete access to the site early Sunday, so the figure is an estimate based partly on its survey of the carnage on Saturday.

(The temporal jurisdiction of the ICTR extends only to the year 1994 and crimes committed by the RPF/A after 1994 are at issue at the ICTR and are mentioned here only to establish the fact that later actions and policies of the RPF/A confirm that the use of military violence and civilian casualties are tactics which the Rwandan government has adopted).

34 See, UN Panel of Experts Report on the Illegal Exploitation of the Democratic Republic of the Congo, October 20, 2003.

35 ICTR defence evidence in Military-I, Exhibit DNT 365. March 8, 2007, Affidavit of QC Michael Hourigan (and supporting affidavit of Amadou Deme):

In late January or early February 1997 members of the National Team were approached by three (3) informants (either former or serving member of the RPF) claimed direct involvement in the 1994 fatal rocket attack on the President’s aircraft. Their evidence specifically implicated the direct involvement of President Paul Kagame, members of his administration and military. The informants also advised that the Kagame administration was actively involved in covert operations aimed at murdering high profile ex-patriot Rwandans – one such murder was the death of Seth Sendashonga in Nairobi.

36 i.e., that the current Rwandan government and military, led by Paul Kagame, were the “heros” who had stopped their genocidal predecessors by seizing power in mid-July 1994, after the previous President had blocked efforts to democratize Rwanda and was killed, probably by his own military.

37 See Bruguière Indictment, November 2006, charging RPF leaders for the assassination of former President Habyarimana, and recommendation that Kagame be prosecuted at ICTR.

38 See Andreu Indictment, February 8, 2008, charging 40 RPF leaders, including Paul Kagame, with crimes committed during 1994, including the assassination of former President Habyarimana and genocide.

39 In September 2007, it became apparent that, “According to independent experts, some 30,000 Hutu had been killed in Rwandan territory, at the time the army of the RPF was advancing. The Arusha prosecution had catalogued fourteen sites of massacres and was making efforts to go up the chain of command.” Hartmann, Paix et chatiment, p. 66.

40 See Hartmann and Del Ponte, infra. However, on May 29, 2008, an ICTR trial chamber rejected the OTP request to transfer the Munyakazi case to Rwanda, an indication that the exposure of the RPF crimes may be causing a reappraisal by at least some members of the ICTR judicial chambers.

41 See, Hartmann, Paix et chatiment, pp. 261-72

42 See generally, Waugh, Paul Kagame and Rwanda: Power, Genocide and the Rwandan Patriotic Front (MacFarland USA 2004)

43 See generally, U.S. State Department 2003 Human Rights Report on Rwanda, Feb. 25, 2004.

44 The Economist, Aug. 28, 2003.

45 Rptr. Colette Flesch, Report of European Observer Mission, September 2003; See also, Waugh, Paul Kagame and Rwanda: Power, Genocide and the Rwandan Patriotic Front, pp. 185-206 (Mcfarland USA 2004)

46 ICTR Military-I Defence Exhibit: Joint Statement issued by RPF and opposition parties from Brussels, May 1992.

47 The Economist, March 28, 2004.

48 UN Panel of Experts Report on the Illegal Exploitation of the Democratic Republic of the Congo, October 20, 2003.

49 Id.

50 United Nations Security Council Report of Experts Oct. 2003, which are continuing as this is being written in spring 2008. The most recent estimates are that more than 6 million people have been killed and more civilians are being killed in eastern Congo every 4 months than have been killed in Darfur in total!

51 Hartmann, Paix et chatiment.

52 In September 2007, the 1994 reports of RPF crimes mentioned earlier were cited as the basis for ICTR prosecutions by Hartmann quoting Del Ponte, “According to independent experts, some 30,000 Hutu had been killed in Rwandan territory, at the time the army of the RPF was advancing. The Arusha prosecution had catalogued fourteen sites of massacres and was making efforts to go up the chain of command.” Hartmann, Paix et chatiment, p. 66.

53 BBC, March 02, 2003.

54 Hartmann, Paix et chatiment: les guerres de la politique. (Flammarion, Paris, September 10, 2007).

55 Del Ponte, War Criminals and Me (2008).

56 In the main, the Hartmann book discusses the Yugoslavia Tribunal, from which Ms. Del Ponte resigned at the end of 2007, and describes Del Ponte’s frustration with the U.S. State Department’s interference with the prosecution of Slobodan Milosevic because of his usefulness to the U.S. during and after the Dayton Accords. The book sets out in some detail the numerous ways that UN member-states manipulated, or tried to manipulate, the Yugoslavia Tribunal for their own purposes.

57 Hartmann, Paix et Chatiment, pp.261-72.

58 Presumably, Ambassador Prosper had access to much of the same information that had caused Prosecutor Del Ponte to make her public announcement of RPF culpability, since he was a lead prosecutor in Prosecutor v. Akeyesu, one of the first convictions following trial at the ICTR.

59 Hartmann, Paix et Chatiment, pp. 261-72.

60 See, ICTR Military-I and Military-II exhibits.

61 See website (under construction) by the author with the assistance of Wm. Mitchell College of Law to put documents into the public record that makes independent research possible: www.rwandadocumentsproject.net

62 ICTR Military-I Defence Exhibit DNT 365, (Affidavit of Michael Hourigan QC).

63 ICTR Military-I Defence Exhibit proposed DNT 366.

64 The Hartmann book also describes how a U.S. prosecutor, Michael Johnson, undermined Del Ponte’s investigations of the Kagame government in 2003.

65 ICTR Military-I testimony of Lt. Abdul Ruzibiza, Mar. 9-10, 2006.

66 ICTR Military-I exhibit DNT 218: Ruzibiza, The Secret History of Rwanda, (Paris, 2005)

67 ICTR Military-I testimony (closed session)

68 See, LeMonde, June 29, 2007, quoting Prosecutor Jallow. In 2007, the principal figure in the film Hotel Rwanda, Paul Rusesabagina, publicly called for the investigation of the RPA and Kagame’s involvement in the Habyarimana assassination. The response from Mr. Jallow of the OTP was that there was insufficient evidence to proceed against Kagame or the RPA/F, a copy of the Rusesabagina responsive open letter of July 9, 2007, was published at: www.taylor-report.com.

69 See ICTR Military-I documentary evidence et seq.

70 See, related notes, supra

71 Similar reports were published by Human Rights Watch and Amnesty International in the fall of 1994. See related notes supra.

72 See related notes, supra and infra.

73 See testimony of fmr. Rwandan Foreign Minister Jean Marie Ndagiyimana, November 2006.

74 Id. and related notes, infra.

75 However, on May 29, 2008, an ICTR chamber rejected the transfer of the Munyakazi case to Rwanda, which indicates that the growing public record exposing the crimes of the RPF may be having an impact on the judges sworn to due justice at the ICTR.

76 See article by this author on JURIST website (U. of Pittsburgh, US), March 8, 2008, cited supra.

77 On June 4, 2008, ICTR President Dennis Byron will report to the Security Council that the 2008 completion date is not workable, which has been reinforced by the May 29, 2008, Decision in Munykazi to deny transfer to Rwanda, and return two accused from European countries which have declined to accept jurisdiction.

78 ADAD member Me. Gakwaya, a Rwandan ex-patriot living in Mozambique, was arrested by Tanzanian authorities based on a Rwandan warrant when he appeared at the ICTR in September 2007. He has since been released, but is now deceased. Emilien Dusabe, formerly an investigator in the Military-I trial, was threatened with prosecution in Kigali and is seeking asylum in Europe. Investigator Nshogoza has actually been prosecuted (see note infra) and another investigator has recently gone into exile and is seeking asylum (source confidential).

79 An indictment in Prosecutor v. Nshogoza, an investigator charged in Rwanda and transferred to the ICTR was filed in mid-2008.


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