Ingrid Burke, Pitt Law '11, writes on the detention of Peter Erlinder, law professor and defense counsel at the ICTR, in light of her recent visit to the International Criminal Tribunal for Rwanda...
n a recent piece
for JURIST Dateline, I wrote about a visit that I had made to the International Criminal Tribunal for Rwanda
(ICTR) in Arusha, Tanzania, as part of Professor Charles Jalloh's
International Criminal Law Seminar. At that time, I argued in favor of the transfer of lower to mid-level ICTR cases to Rwanda's national jurisdiction largely on the basis of Rwanda's improved fair-trial standards and due process guarantees. In light of the recent arrest and detention of renowned international criminal defense attorney, American law professor, and JURIST Forum contributor Peter Erlinder
, I feel compelled to revisit my previous argument in an attempt to reconcile my earlier findings with these recent developments.
For a more detailed history of the ICTR, please see my most recent article on case transfers to Rwanda. To summarize, the ICTR has primary jurisdiction over the cases of individuals accused of having committed acts of genocide, war crimes, and crimes against humanity in the territorial and temporal context of the Rwandan genocide.
However, the tribunal's days are numbered. While the closure [PDF] dates of the trial and appeals chambers were recently postponed until the end of 2011 and 2013, respectively, these extensions are insufficient to accommodate the number of cases in progress and those that are yet to begin. Rule 11 bis was introduced to the ICTR Rules of Evidence and Procedure (REP) in order to ease concerns respecting such time constraints. According to Rule 11 bis, the Prosecutor is entitled to apply for the transfer of cases of lower to mid-level indictees to Rwanda's national jurisdiction, which ICTR Prosecutor Hassan Bubacar Jallow has attempted five times to date.
Each of these applications was denied for various reasons, including the appropriateness and applicability of punishments for genocide, the adequacy of protection for defense witnesses, witnesses' ability to enter Rwanda in order to testify, and ethnic biases that could affect the trials' impartiality. The ICTR has sponsored numerous funding and training initiatives in order to effectively reform the Rwandan judiciary, and until very recently, these initiatives appeared to have been paying off. The relevant laws were more narrowly tailored; modern witness protection programs replaced their problematic predecessors; greater assurances were granted to defense witnesses residing outside of Rwanda; and greater independence was bestowed upon the judiciary in order to curb tribunal fears of ethnically prejudicial sentencing.
The arrest and detention of Peter Erlinder, however, sheds new light on these examples of juridical progress and begs the question: would it be irresponsible - despite all of the safeguards guaranteed to transfer cases by way of the Law Concerning Cases of Transfer to the Republic of Rwanda (Transfer Law) for the ICTR to begin transferring cases to Rwanda when clear evidence suggests that such safeguards are denied to individuals whose cases were never initially claimed by way of the ICTR's jurisdictional grant? In other words, can one good law render unimportant the instability of an entire judiciary?
Over the course of his career, Peter Erlinder has defended numerous high-profile - and often highly unpopular - clients, served as lead council on various defense teams at the ICTR, and taught various courses at William Mitchell College of Law.
However, Erlinder was arrested last month, one day after his arrival in Kigali, Rwanda, on charges of espousing genocide ideology. In an official press release [PDF], the Rwandan government stated:
Perhaps Mr. Erlinder thought that his citizenship, academic standing or media profile would protect him - why else would a law professor so knowingly and deliberately break the law by entering Rwanda? But he failed to understand that genocide defenders and deniers - however rich, powerful or well-connected - are regarded by Rwandans as serious criminals hell-bent on destabilizing our nation.
While Erlinder has since been released on bail and has returned to the United States, the Rwandan government continues to plan to file charges
[PDF] against him. These charges are based on the highly controversial Law Relating to the Punishment of the Crime of Genocide Ideology
(Genocide Ideology Law). Since its passage in 2008, this law has been criticized by numerous international organizations, foreign governments, and NGOs for its far reaching implications. For example, Article 19
- an organization aimed at promoting freedom of expression and freedom of information - recently filed a report
[PDF] with the United Nations criticizing the Genocide Ideology law:
ARTICLE 19 is alarmed by the Genocide Ideology Law principally because the central concept of "genocide ideology" is extraordinarily broad and would catch a whole range of forms of expressions concerning genocide.... Furthermore, the system of penalties also breaches international human rights law, particularly with respect to children.
Problems with the Genocide Ideology Law
Article 3 establishes the criteria for charges of supporting genocide ideology. One subsection of the article includes the following list of prohibited behaviors: "marginalizing, laughing at one's misfortune, defaming, mocking, boasting, despising, degrading, creating confusion aiming at negating the genocide which occurred, stirring up ill feelings, taking revenge, altering testimony or evidence for the genocide which occurred."
The penalties imposed by the articles of the Genocide Ideology Law are strict, and the text of the law is replete with negative implications for free speech. For instance, the subsection of Article 3 quoted above implies that history cannot be questioned. I see no major problem with this as far as acknowledging the deaths of between 800,000 and 1,000,000 victims is concerned. However, a key element of justice is transparency, and impunity can only be detrimental. As such, a law which effectively prohibits questions related to the liability of former rebel leaders does a disservice to the goals of justice and reconciliation.
Furthermore, Article 9 of the Genocide Ideology Law allows Rwandan authorities to send children under the age of 12 accused of having espoused genocide ideology - be it for "mocking, boasting, or despising" the wrong child on the playground - to rehabilitation camps for up to 12 months. This article establishes a punishment too close in nature and purpose to the First Nations reservations schools in Canada (Assembly of First Nations) to be reconcilable with international human rights law, such as Article 18 of the International Covenant on Civil and Political Relations and Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide.
Implications for the Stability of Rwanda's Judiciary and for Rule 11 bis transfers
While fair trial and due process concerns have traditionally blocked Prosecutor Jallow's efforts to transfer cases to Rwanda's national jurisdiction, the introduction of the Transfer Law seemed to alleviate such concerns. Under the Transfer Law, transfer-case defendants are guaranteed fair trial and due process rights that are in line with international standards. Furthermore, the ICTR is able to implement monitoring mechanisms in order to ensure that transfer cases are adjudicated properly. In effect, the Transfer Law creates a safe haven within Rwanda's judiciary for the cases of lower to mid-level ICTR defendants.
Outside of that safe haven, however, juridical conditions are shakier. Among other issues, most high-level genocide cases are tried in Rwanda's Gacaca court system. Among other points of concern, the Gacaca courts have been harshly criticized by Human Rights Watch and Amnesty International reports for a lack of public access to trials, the dangerously low educational and professional standards required of judges, and extremely lax witness protection rights. Rwandan prisons are sorely lacking in terms of due process concerns - such as indefinite pre-trial detention - and basic sanitation and living standards, according to a report from World Prisons Brief at King's College London. Finally, the Erlinder case reflects poorly on Rwandan judicial independence in light of Erlinder's well-publicized conflict with President Kagame in his role as opposition candidate Victoire Ingabire's counsel in the midst of the upcoming presidential elections.
It is arguable that the aforementioned problems are irrelevant to the question of Rwanda's readiness for ICTR Rule 11 bis transfers. After all, the Transfer Law guarantees international fair trial and due process norms to transfer defendants, and the Tribunal is entitled to keep tabs on these cases in order to verify their fairness. Furthermore, since cases transferred from the ICTR are limited to the Tribunal's subject matter jurisdiction, which excludes "genocide ideology", the ICTR could choose to overlook the problems posed by Erlinder's arrest.
However, in a recent press release, Amnesty International's Erwin van der Borght summarized the troublesome issue of Rwanda's persevering susceptibility to juridical instability well in saying:
We have documented a number of incidents of intimidation and harassment of opposition groups in Rwanda in recent months....[n]ow with the arrest of a potential presidential candidate a few months ahead of the election, we call on the government to demonstrate that this is not another such case.
Ultimately, considering the ICTR's stated goals of contributing to the "process of national reconciliation and to the restoration and maintenance of peace," I think it is imperative for the ICTR to question the appropriateness of transferring cases - even if such cases will be protected by defense rights and international monitoring - to a judiciary that, despite progress over the past several years, has shown itself to suffer from a dangerous amount of political influence in the lead-up to this year's presidential elections.