JURIST Guest Columnist Peter Erlinder, defense counsel at the International Criminal Tribunal for Rwanda and Professor of Law at William Mitchell College of Law says that even though the White House is now more openly critical of Rwandan President Paul Kagame’s regime, the US and international community at large must take a much closer look at those in power before true reconciliation will come to Rwanda…

Rwandan President Paul Kagame was re-elected on August 9 to a second seven-year term with 93% of the vote, about the same percentage he received in August 2003 with the same arrests of opponents; the same outlawing of political parties; the same closing of newspapers; the same mysterious murders and disappearances, just like the election this August. Despite EU reports that the 2003 elections were fatally flawed, the White House had congratulated Kagame. On August 13 of this year, however, the White House reaction was quite different:

“…[in light of] a series of disturbing events prior to the election including the suspension of two newspapers, the expulsion of a human rights activists, the barring of two opposition parties from taking part in the election, and the arrest of journalists… [S]tability and prosperity will be difficult to sustain without broad political debate and open political participation… Democracy is about more than holding elections…” [emphasis added]

The White House statement was welcome and long overdue, but it left out other “disturbing events” like the murder of a leading journalist investigating the attempted assassination of a former Kagame supporter and General seeking asylum in South Africa; the beheading of the vice-chair of an opposition party; the arrest of would-be Presidential candidate Victoire Ingabire for “genocide denial;” and my own arrest for “genocide denial,” (I was arrested on May 28 when I went to Rwanda to advise Ms. Ingabire and released for medical reasons on June 17) despite a Rwanda-United Nations (UN) treaty promising immunity from prosecution to UN lawyers like me (I am Lead Defense Counsel).

In light of my arrest, the White House statement’s reference to “stability” did have a ring of irony, given the ubiquity of AK-47’s in RPF ruling-party hands, from about age 16 on up; CIA reports that Rwanda’s 6,000 troops, pre-Kagame, are at least 65,000 now (plus uncounted para-militaries and militias); and, personal observation that Rwanda’s RPF-imposed stability rivals that imposed on Iraq by the ethnic-minority Baath Party while Saddam Hussein was a U.S. ally like Kagame is now, until he wasn’t.

Rwandan “prosperity” is another matter. Both the State Department (NYT, Herman Cohen, Dec. 16, 2008) and the UN (UNSC Experts Reports 2001, 2002, 2003 and 2008) report that much of Rwanda’s GDP flows from natural resources that were stolen from the Congo, (est. $250 mil. per year) at the cost of more than 5 million lives and counting. This resource theft is enhanced by $1 billion in U.S. aid since 2000, $250 million for 2010-11, plus Pentagon and off-the-books aid, NATO aid, payments for troops on UN and AU “peacekeeping missions” in Darfur, etc. The Rwandan army is a serious profit center.

The White House statement also sheds some welcome light on why I was jailed as a “genocide denier,” and it was not for anything I said or did in Rwanda. The White House statement about the real political conditions in Rwanda provides a good opportunity to help set the record straight!

The Award-winning documentary The Fog of War opens with newsreel footage of Tokyo ablaze from U.S. gasoline bombs that incinerated some 250,000 civilians before Hiroshima and Nagasaki, as the somber voice-over of former Secretary of State Robert McNamara’s admits:

“if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….”

The mea culpa is dramatic but not surprising. Everyone knows the victors have always told the story of the war…..don’t they? While this may appear to be an historical truism, it appears to be generally understood as not being the case when the war at issue is the last 3 months of the Oct. 1990 to July 1994 Rwanda War, which the victors have called the “Rwandan genocide.”

I learned this when I returned from 3 weeks in prisons run by the victors of the Rwanda War, after having been accused of “genocide denial” by the victors of the Rwanda War, and found that the well-publicized slander seemed to have been taken seriously simply because the victors in the Rwanda War had said it! I was astonished to find out that the slander had been repeated, over and over again by apparently curious and analytical minds, without any serious attempt by anyone to explain what I had done to allegedly deserve the accusation!

Just for the record, I am not a “genocide denier.” But I am also not willing to accept the “victors’ version” of any war wholesale, any more than any respectable historian would ignore the fact that crimes were committed by the Allies in World War II; crimes were committed by Union forces during American Civil War; and crimes were committed by the by U.S. in the planned genocide conspiracy against Native Americans, even if it could not be admitted by the victors at the time.

But, the confusion does have some foundation because even when the UN Appeals Chamber, and my lawyers, asked the Rwanda government to spell out my supposed crime, they refused. Instead, they provided a list of articles I had written, and articles others had written, as well as documents I had filed in court. (ICTR Appeals Chamber, Registrar’s Submission, July 14, 2010, Case No. 98-41-A). They never actually explained how my writings and court documents added up to “genocide denial.”

As Lead Defense Counsel for the UN Tribunal for Rwanda (ICTR), it is my job to get the best evidence possible to show what actually happened in Rwanda in 1994 to the benefit my client, which is exactly what I have done. Because the UN Tribunal permits defense attorneys access to UN documents that would otherwise be confidential for 50 years, I was able to get UN and de-classified U.S. government documents which show what actually did happened in Rwanda in 1994, not what the victors say happened.

On December 18, 2008, after 7 years of receiving the best evidence the RPF could muster, three judges of the UN tribunal for Rwanda unanimously concluded that the story of the Rwanda genocide told by the victors….of a “long-planned conspiracy to commit a genocide of Tutsi civilians” by top military officers was not supported by the evidence. The three judges agreed that the documents and evidence I put into evidence were more credible and the UN prosecutor did not appeal. It was this legal victory, based on previously suppressed UN documents that got me prosecuted for “genocide denial” by the RPF victors in the Rwanda War.

But, in addition to the documents, former U.S. Ambassador to Rwanda Robert Flaten, recently of St. Olaf College in Northfield, Minnesota, testified that the former government was so porous that a conspiracy to commit mass killings would have been found out by the CIA or State Department, and it wasn’t. He also testified that mass violence now called the “Rwandan genocide” was not a surprise. In fact, he had actually predicted it, in light of similar violence that swept Burundi, the country next door, after military allies of RPF had assassinated the Burundian president at the end of 1993.

But, having hard evidence that the “victors’ myth” of the Rwanda War is not true is not the only way to be a “genocide denier” in Rwanda. Victoire Ingabire, was charged for agreeing that there was “a genocide of Tutsi and moderate Hutus” but her crime was asking why there were no memorials to “moderate Hutu” victims anywhere in the country.

In Rwanda, “genocide denial,” like an ink-blot test, can be whatever the RPF government perceives it to be. According to the RPF government, Hutus are “the perpetrators” in all cases, despite recently published findings by Dr. Alan Stam of the University of Michigan and Dr. Christian Davenport of Notre Dame that nearly twice as many Hutus were killed as Tutsis, not to mention, former U.S. Ambassador to Burundi (1994-96) Robert Krueger’s eye-witness descriptions of RPF massacres of Hutus in the summer of 1994.

Rwanda and Burundi are neighboring countries with interwoven histories (like New Hampshire and Vermont, they are similar ethnically and topographically, yet they differ politically). Rwanda had been a relatively peaceful Hutu-majority republic from independence until the RPF war of invastion between 1990-94 while Burundi was a Tutsi-dominated military dictatorship that carried out several mass killings of hundreds of thousands of Hutus after independence in the early 1960’s, until October 1993.

Burundi’s first presidential election saw Hutu President Ndadaye elected by the 85% Hutu majority in August 1993. Within 90 days, Burundi’s Tutsi-dominated military assassinated Ndadaye in October 1993, which was followed by an unplanned explosion of violence in which 100-200,000 were killed as Hutu peasants rose-up with hand-weapons before the Tutsi military took charge and massacred Hutus. A half-million refugees poured into Rwanda.

By the time the Burundian refugees arrived in Rwanda, some 1.2 million Hutu and Tutsi refugees already had been displaced by a war that began in 1990 when part of the Ugandan army invaded Rwanda. Led by a Ugandan officer and Rwandan ex-pat, Paul Kagame, who returned from training at Ft. Leavenworth to lead the invasion, the re-named RPF grew from about 3,000 to 25,000 well-armed and well-trained troops with U.S. and U.K. military support, and became the militarily dominant force in Rwanda by 1993 in a little over two-years!

At the same time, some 1.5 to 2 million brutalized war-displaced refugees were everywhere in refugee camps and wandering the country. Social chaos and the threat of war hung in the air. The situation was so unstable that Ambassador Flaten testified that he personally warned then-General Kagame to his face, after the Burundi blood-bath: “if [Kagame] resumed the war….Rwanda would explode just like Burundi…and [Kagame] would be responsible for massive killings like those that just happened in Burundi…”

The UN documents, sworn testimony at the UN tribunal, French and Spanish criminal indictments show that despite Flaten’s warning, Kagame not only resumed the war but did so by assassinating the Presidents of both Rwanda and Burundi, which by any reckoning makes him primarily responsible for the mass violence Flaten told him would sweep Rwanda.

On the night the assassinations, a State Department cable warned that “both countries could explode…”because of the Burundi experience….not because of a long-planned conspiracy to commit genocide in Rwanda, as the RPF victors have long maintained.

The UN documents also show that once the predicted violence began the militarily weaker Rwandan army could not defend against the RPF invasion, and put down the massacres triggered by the presidential assassinations. The defeated army repeatedly asked for a ceasefire, or to combine forces with Kagame’s troops to stop the violence. But, as UN Gen. Dallaire wrote to his superiors, “Why should Kagame agree to a ceasefire, he’s winning the war?…the civilian casualties are collateral damage for his (Kagame’s) war plan….”

In short, the UN documents show that Kagame knowingly triggered the mass violence in Rwanda by assassinating the two Presidents, then refused to use his military superiority to help stop the mass violence he had knowingly triggered. Then, as the “victor,” he was in a position to lay the responsibility for the “Rwandan genocide” at the feet of the “vanquished.” As Robert McNamara reminded us in the Fog of War…this is not a new story, only the details differ.

Despite my having been able to use UN Tribunal due process principles to get access to documents that would otherwise have been kept confidential for many decades, the performance of the Tribunal, itself, has been much less than fair or even-handed. In fact, the UN Rwanda Tribunal is the only international tribunal in history set-up to prosecute all crimes in a war, that has prosecuted only the losing side.

This means that either the four-year Rwanda War is the only war in history in which only the losing side committed crimes or, like the Nuremberg and Tokyo tribunals, the Rwanda Tribunal is actually a “victor’s tribunal” in which the crimes of the victors are off-the-table for political reasons. This is a mystery that was solved in February 2009, thanks to the publication of the memoirs of former Chief UN Prosecutor Carla Del Ponte.

Del Ponte’s 2009 memoirs explain she was fired from her ICTR job in 2003 by the US because she had the evidence to prosecute Kagame and his RPF army and refused US orders to drop the prosecutions. She writes she was informed that the US had a “deal” to protect Kagame and the RPF. The UN documents I put into evidence in the Rwanda tribunal back her up. They are also on my website: www.rwandadocumentsproject.net.

As early as September 1994, RPF mass crimes were reported to U.S. Secretary of State Warren Christopher and Kofi Annan by USAID human rights investigator Robert Gersony. By 1997 prosecution investigative team led by former FBI agent James Lyons recommended that Kagame be prosecuted for the assassinations of the two Presidents. Former Chief Prosecutor Louise Arbour shut down the investigation and disbanded the Kagame investigation unit. To date, not one RPF-related crime has been charged at the UN Tribunal for Rwanda.

Until the White House statement on August 13, the U.S. policy of unwavering support for Kagame has meant a U.S.-sponsored cover-up of RPF crimes at the ICTR, and a complete absence of U.S. criticism for Kagame’s massive crimes in a neighboring country, Congo, which far exceed anything committed by Sudan’s President Bashir in an unruly province within his own nation. And, Rwanda is a member of the International Criminal Court, while Sudan is not. From an African perspective, the Sudan/Rwanda-Uganda-Congo contradiction is making a mockery of jurisprudential concepts of international jurisdiction and revealing the tribunals as exercises in super-power influence. Mahmood Mamdani made the point quite clearly in the Nation (The New Humanitarian Order, Sept 29, 2008):

“Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are U.S. adversaries and ignored actions the United States does not oppose, like those of Uganda and Rwanda, effectively conferring impunity on them.”

The cover-up of RPF crimes, and U.S. complicity in continuing the “long-term genocide conspiracy” myth has real-world consequences for the people of Africa’s Great Lakes Region, and is preventing any realistic possibility of reconciliation between peoples who must live together, as the White House statement recognizes. It is an open secret that the millions of deaths and resource rape in the eastern Congo by Rwandan and Ugandan troops is continuing today, with U.S. acquiescence, if not support. It is a policy that must change if there is to be anything like “stability, prosperity and democracy” in Rwanda and Central Africa.

In RPF prisons, I learned that the a “long-planned genocide conspiracy” myth cannot be questioned in Kagame’s Rwanda, and is an article of faith so deeply engrained that RPF supporters really believe their only hope for survival is a tight grip on an AK-47, and holding state power any way they can. The RPF “long-planned genocide” myth makes it easy to instill the fear to bludgeon all but the most resolute Tutsi into acquiescence with RPF strong-arm tactics, if not support. When 85% of Rwandans are Hutu-genocide conspirators, any movement toward real democracy makes reliance on RPF police-state repression justifiable…all in the name of self-defense!

Putting to rest the “victor’s myth” of the long-planned conspiracy to commit genocide by the former Hutu government and military has the potential to open up avenues for dialogue between people who must learn to live together. In the long run, a South African-style Truth and Reconciliation process, in which both the Hutu majority and the RPF/Tutsi ruling-minority acknowledge past abuses in exchange for both forgiveness and accountability seems the only model likely to encourage reconciliation, and certainly much more likely to achieve a peaceful, positive outcome than the “victors” falsely assigning all blame to the vanquished, with the help of the U.S.

The U.S. has a very big role to play in resolving this seemingly intractable conflict. But by prosecuting only the vanquished at the ICTR, while giving the victors impunity for their role in the Rwandan genocide, which has been US policy since at least the fall of 1994 according to the contemporaneous documents in the ICTR record, the U.S. has been any possibility of reconciliation more distant, and a violent reaction to “stability imposed by force” more likely, and real prosperity and democracy impossible.

The Obama administration has taken an important first step by not granting legitimacy to the illegitimate Kagame election ….a next step should be ending U.S. protection for Kagame and his RPF forces at the UN Tribunal for the they crimes are known to have committed before, during and after the Rwandan genocide. And, once there is truth…reconciliation at least has a chance.

If that makes me a “genocide denier,” I guess I have to accept the label.

Peter Erlinder is defense counsel at the International Criminal Tribunal for Rwanda and Professor of Law at William Mitchell College of Law.

Suggested citation: Peter Erlinder, Rwanda: Flawed Elections and the Politics of ‘Genocide Denial’, JURIST – Forum, Aug. 28, 2010, http://jurist.org/forum/2010/08/rwanda-flawed-elections-and-the-politics-of-genocide-denial.php.