JURIST Guest Columnist Peter Erlinder of William Mitchell College of Law, lead defense counsel in the Military-1 Trial at the International Criminal Tribunal for Rwanda (ICTR) and president of the Association des Avocats de la Defence (ADAD), the ICTR defense lawyers association, says that a recent UN-sanctioned agreement to turn prisoners convicted of war crimes at the UN's International Criminal Tribunal for Rwanda over to a Rwandan government led by men who themselves have been indicted for war crimes shows that the standards of justice at the ICTR are very different from what they are at the ICTY in The Hague, or anywhere else…

A major event in United Nations history – and international law – occurred this week at a public ceremony in Rwanda’s capital, and the world hardly noticed.

For the first time, the United Nations agreed to turn UN prisoners over to indicted war criminals. But the press and defenders of international human rights in North America and Europe appeared not to have taken note of the "historic" moment. Which all goes to show that the concept of "justice" at the UN-ICTR, as compared to the ICTY at The Hague, is…different.

Last Tuesday, UN-ICTR representative Roland Amossouga officially designated President Kagame’s Rwanda as one of the UN member states to which UN prisoners might be sent, despite the indictment of 40 members of the top Rwandan government leadership for war crimes, crimes against humanity and genocide during the 1994 Rwanda War by a Spanish high court judge only one month earlier.

On February 6, 2008, Judge Fernando Andreu issued a 182-page indictment detailing crimes committed by Rwandan President Kagame and members of his military, including the murder of some 320,000 civilians during the Rwandan Civil War…and more than 4 million in the Congo. INTERPOL warrants have been issued for their arrest. Kagame and company had already been indicted in late 2006 by French Judge Jean-Louis Bruguiere for the assassination of Rwanda’s previous president (who was the leader all the convicted ICTR defendants in the Rwandan Civil War), the act of aggression which touched off what is known as the “Rwandan Genocide.”

All this would seem to make the UN knowingly complicit in the crimes alleged in the Spanish and French indictments.

At best, it is hard to explain – it is unthinkable that the ICTY would have turned Croat, Bosnian or Kosovar prisoners over the Milosevic government when he was under indictment! But “justice” at the ICTR, as compared to the ICTY, is…different.

And this was not the only “history-making” part of the UN initiative to ship UN prisoners to Rwanda last week.

This was also the first time in history that the United Nations has voluntarily begun the process of transferring vanquished former war-time enemies to the hands of the victors in a civil war, the exact equivalent of the ICTY publicly agreeing to send Serb prisoners to Croatia, Bosnia…or Kosovo to do their time, or vice versa! Unthinkable in Europe – but, at the ICTR, “justice” has a meaning that is…different. And no one in the “human rights world” seems to be paying attention, or saying a word.

Of course, the UN designation of “acceptability” does not necessarily mean that UN-ICTR prisoners (none of Kagame’s supporters have been charged at the ICTR itself, for political reasons explained by former ICTR Prosecutor Del Ponte) actually will be delivered to the care of their former enemies. Other countries who have agreed to accept ICTR include Switzerland, France, Sweden, Italy, Benin and Mali. ICTR President Judge Dennis Byron must designate the eventual site of each defendant’s incarceration, so no one has actually been sent to Rwanda – yet.

The President of the ICTY has a choice of countries to send convicted defendants too. As a result, Serb, Croat, Bosnian and Kosovar defendants at the ICTY are serving sentences in prisons all over Europe. But, no Serbs have been sent to Croatia, no Croats or Bosnians to Serbia, etc. I guess this is because the civilized human rights world would be shocked at the suggestion that UN prisoners should be delivered into the tender care of their sworn enemies But, at the ICTR, things are…different.

The UN-ICTY prisoners know they will not be delivered to the hands of their former enemies, and that long-term incarceration will be in “first world” conditions, somewhere in Europe. To date, not one UN-ICTR prisoner has been sent to a European prison and all have ended ended up in a remote desert prison in Mali for life – or the UN Detention Center connected to the Tribunal for shorter sentences.

So, the designation of Rwanda might be seen as an “humanitarian” act. There are no deserts in Rwanda and the Kagame government has made a great show of providing the best detention facilities in Africa, which they have. But the UN sending its prisoners to Kagame’s “care” ignored political reality: these are all sworn war-time enemies, and Kagame’s government is facing multiple war crimes indictments for how he and his army fought that war by massive killings of opponents and civilians.

The nagging problem of what will happen to Kagame’s former wartime opponents, once the UN actually turns them over to his “care,” is anyone’s guess. But the multiple French and Spanish indictments detailing brutal killings by Kagame's own troops on a massive scale, for which only his former enemies have been blamed at the ICTR so far, provide a pretty good indication what the UN prisoners can expect.

When George Bush visited Kagame only 2 weeks after the Spanish indictment issued, he ignored both the Spanish and French indictments, as UN-ICTR officials apparently did this week. Given President Bush’s apparent lack of respect for the rule of law and the existence of long-standing US military ties with Kagame, this might be understandable in “political” terms. But, the “history-making” UN-ICTR endorsement of the victors in the Rwanda War, despite the Spanish and French indictments, is a bit harder to understand. Unless, of course, “justice” at the ICTR means something…different.

Could this huge disparity between standards at the ICTY and the ICTR be explained because the UN-ICTR is “Africa”? Or, is it because, as former ICTR Prosecutor Carla Del Ponte has explained, the UN-ICTR has created impunity for U.S. allies, while vilifying their opponents? In either case, the result is the same.

At the ICTR, “justice” means something…different, and no one seems to be paying attention or saying a word.

The dark stain of “manufactured impunity” for allies of the Superpower is spreading across the previously “clean” tablet upon which UN tribunals are supposedly writing new standards for international criminal law. “UN-manufactured impunity” at the UN-ICTR is rapidly becoming a public embarrassment, as member states are forced to take up the prosecutorial function that has been blocked by the US and UK at the ICTR, according to Prosecutor Del Ponte.

And it will be an embarrassment of historic proportions if the human rights community and UN member states do not begin speaking out to put an end to the UN- ICTR charade that, as Carla Del Ponte has said, "…ridicule(s) the principles of international justice…".

(c) 2008 Peter Erlinder.

Notes

[1] Hartmann, Florence, Paix et chatiment: les guerres del la politique (Flammarion, Paris, Sept. 2007
). Ms. Del Ponte was called to Washington DC and ordered not to charge members of the Kagame government because of US political and military ties with the regime in 2003, and was removed from office when she insisted on upholding the Security Council mandate to prosecute all crimes committed in the 1994 Rwanda Ward. See JURIST, The 'Rwanda Genocide' Cover-up, February 19, 2008.

[2] Hartmann, Paix et chatiment

Peter Erlinder is a professor at William Mitchell College of Law. He is a past-President of the National Lawyers Guild.
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