TRIBUNAL PENAL INTERNATIONAL POUR LE RWANDA
CHAMBRE DE PREMIERE INSTANCE III
Devant : Khalida Rachid Khan, Presiding
Joseph Asoka Nihal De Silva
Emile Francis Short
Greffe Monsieur Adama Dieng
Date : 10 April 2008
LE PROCUREUR
CONTRE
Ildephonse HATEGEKIMANA
Case No. ICTR-2000-551
ICTR-ADAD Submissions as Amicus Curiae
(ICTR Association des Avocats de la Defence/ ICTR Association of Defence Counsel)
LE BUREAU DU PROCUREUR DEFENCE COUNSEL
Hassan Bubacar Jallow Roberto Ahlonko Dovi
Bongani Majola Ata-Quam Dovi-Avouyi
Silvana Arbia
Alex Obote-Odora ADAD BUREAU
Richard Karegyesa
George Mugwanya Prof. Peter Erlinder, Pres. (U.S.)
Inneke Onsea Me. Otachi O Bw’amanwa, V.P. (Kenya)
Francois Nsanzuwera Me. M. Sahinkuye, Gen. Sec (Denmark)
Florida Kabasinga Me. Christopher Black (Canada)
Me. Nathalie Leblanc (Canada)
Me. John Philpot (Canada)
INTRODUCTION
“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…”
…..Former ICTR Chief Prosecutor Hon. Carla Del Ponte[1]
Pursuant to the March 20, 2008 Decision of this Honorable Chamber, the following is submitted on behalf of ADAD as Amicus Curiae in the above-captioned case, with thanks to the Chamber for an enlargement of time for the submission in light of communication difficulties between Arusha and the United States. These submissions are made with the intention of assisting the Chamber in determining whether the Government of the Republic of Rwanda (hereinafter, the Kagame Government), which deposed the previous government (hereinafter the Habyarimana Government) by force of arms, is the proper situs of trials and other functions now within the jurisdiction of the United Nations International Criminal Tribunal for Rwanda.
The focus of the ADAD submissions are factual, and are based upon the collective experience of dozens of defence counsel at the ICTR who have gained an in-depth familiarity with the actual functioning of the ICTR, as mandated by the Chamber. All of these observations, of course, are supportive of the more strictly legal arguments which can be advanced by attorneys for the Accused and other Amici. For the following reasons, ADAD objects to the transfer of any UN-ICTR functions to the Kagame Government now, or in the future.
I. Pending United Nations Member-State Indictments and INTERPOL Warrants
Charging Leading Members of the Kagame Government with the Very Crimes Being Prosecuted at the ICTR, Disqualifies Rwanda as a Proper Venue for Further Proceedings Related to Any Crimes Committed in Rwanda in 1994.
1. As this Chamber is well aware, the judiciary of two United Nations Member-States (one of which is a member of the Security Council) have issued Indictments and INTERPOL warrants for high-ranking members of the Kagame Government. Judge Bruguiere of France has recommended to former Secretary General Annan that the ICTR undertake the prosecution of the Rwandan President Paul Kagame for the assassination of former Rwandan President Habyarimana (and the former Burundian President and second Burundian “Hutu” president assassinated in 6 months[2]). (See generally, Bruguiere Indictment issued by the judiciary of France (November 2006)[3], Florence Hartman, “Peace and Punishment…” (Sept. 2007), Carla Del Ponte, “Hunt: Me and War Criminals,” (April 2008) infra ).
2. On February 8, 2008, a second Indictment and INTERPOL warrant alleging the commission of war crimes, crimes against humanity and genocide were issued by Judge Fernando Andreu Merelles of Spain for some 40 high-ranking members of the Kagame Government, and alleging the responsibility of Rwandan President Kagame, who could not be charged in Spanish domestic courts, but who is amenable to the jurisdiction of the ICTR. (See Annex 1, 182 pp. Andreu Indictment issued by the judiciary of Spain, February 8, 2008).
3. If the ICTR, and this Chamber, transfers trials, detainees, and other ICTR matters to the jurisdiction of the Kagame Government, it will be the first time in history that any International Tribunal has transferred matters within its mandate to a government whose members are under Indictment for War Crimes, much less alleged war crimes that occurred within the Mandate of that Tribunal, itself.
4. Were this to become the precedent to be followed by the International Criminal Court and future international tribunals, this Tribunal will have established precedent that undermines both exercise of universal jurisdiction by Member-States in the investigation and prosecution of war crimes, crimes against humanity and genocide, it will establish the appearance of a United Nations created “impunity” more dependent upon political considerations and influence by powerful Member-States, rather than international jurisprudence and the Rule of Law. (See Annex 2, Excerpts from Hartmann, “Peace and Punishment” and the recently published memoire of former Chief Prosecutor Del Ponte, “Hunt: Me and War Criminals,” April 2008)
II. Transfer of UN-ICTR Proceedings to the Kagame Government Will Enshrine
The ICTR as the First Tribunal in History, Mandated to Prosecute Both Sides to a Conflict,
that Did Not Fulfill Its Mandate, for Reasons Now Known to be Political[4]
5. As the Chamber is well aware, the Security Council Mandate that established this Tribunal charged the Tribunal, and the Office of the Prosecutor, with investigating and prosecuting all crimes committed in Rwanda during the calendar year 1994, irrespective of the association of the alleged perpetrators with either the Kagame Government, or the Habyarimana Government.[5]
6. This historic undertaking followed the precedent established by the Tokyo and Nuremburg Tribunals following World War II in which leaders of nations engaged in that war where held accountable for crimes committed by those under their influence and command, which were organized and carried out by the Allied Forces who eventually established the United Nations.
7. By design, these Tribunals were intended to focus entirely on crimes committed by the defeated forces and, though extreme care was taken to ensure that the proceedings not be perceived as “show trials” or “victor’s justice,” with a high degree of success. However, an apparent policy decision was made to avoid touching on crimes committed by the Allied Forces, such as the fire-bombing of Dresden or massacres of civilians on the Eastern or Western Front in Europe, or the fire-bombing of Tokyo or the nuclear destruction of Hiroshima and Nagasaki.
8. The United Nations Tribunals for Yugoslavia and Rwanda were established with a completely different Mandate by the World’s most respected international forum, the Security Council of the United Nations, to investigate and prosecute all crimes committed during the wars that swept each nation.
9. In the case of the ICTY, this Mandate has been fulfilled in that some members of each side of the four primary participants to the conflict in the Former Yugoslavia have been held to account for the crimes committed on all side during that war.
10. However, in the case of the ICTR, the Chambers have been deprived of any opportunity to evaluate or consider alleged crimes committed by the Kagame Government after July 15, 1994, or by the Rwandan Patriotic Front or the Rwandan Patriotic Army, which was commanded by then General Paul Kagame. (Annex 3, Affidavit of former ICTR Chief Investigator Michael Hourigan, Military-I Exhibit DNT 365. See generally, Hartmann, “Peace and Punishment” and Del Ponte, “Hunt: Me and War Criminals”)[6]
11. The ICTR, then, and all of us associated with this Tribunal must accept that history will either judge that the four-year war in Rwanda is either: (a) the first war in history in which only ONE side committed crimes worthy of note, or (b) the ICTR Chambers have been deprived of evidence of crimes committed by both sides, not by design like the Tokyo and Nuremburg Tribunals, but by other means designed to frustrate the Mandate of the ICTR, itself.
12. Since it is unlikely that the Rwanda War was absolutely unique in history (with respect to crimes having been committed by only one side to the conflict) each of us associated with the ICTR will have to judge whether we will insist on the Security Council Mandate being respected, and furthered, to the extent we are able to do so, or whether we will become complicit in what history is sure to judge a magnificent manipulation, as more of the actual history of the Rwanda War comes to be known to the World.
13. As this foregoing relates to the issue before the Chamber now, the question is not only whether this will be the first time in history that trials, detainees and other matters are put in the hands of indicted war criminals by a United Nations body, but whether this will occur when the evidence of the alleged war crimes committed by the Kagame Government are already in the public record of the ICTR in the Military-1 and Military-II Trial records. (See, infra).[7]
III. Evidence of Kagame Government Crimes, Already in the ICTR Public Record,
Disqualify Rwanda as a Proper Venue for the Transfer of Any ICTR Proceedings.
14. Much of the evidence cited in the French and Spanish Indictments (Annex 1 and Bruguiere Indictment) has long been present in the ICTR public record, primarily to be found in the Military-I Trial, and the ongoing Military-II Trial, because both were the first trials in which the overall responsibility for crimes committed during the four-year Rwanda War were formally at issue and the assassination of President Habyarimana was found to be relevant to the Defence evidence explaining what actually occurred in Rwanda in 1994, which has not been made known to the ICTR Chambers by the OTP.[8] This evidence includes, but is not limited to:
a. The assassination of the Presidents of Rwanda and Burundi on April 6, 1994 was carried out as a military operation that was a prelude to a final assault by the RPA to seize power at any cost (Annex 3, DNT 365-Hourigan Affidavit, DNT-366 Deme Affidavit, Bruguiere Indictment; testimony of former RPA Lt. Abdul Ruzibiza and others).
b. Testimony before ICTR Chamber I (Judge Mose Presiding) of former RPA Officer Lt. Abdul Ruzibiza of March 9/10/11, 2006 in the Military-I Trial and the book of Lt Ruzibiza, which is in evidence in Military-I,[9] tending to establish that he and other RPF officers were personally involved in the assassination of former President Habyarimana and the Burundian President on April 6, 1994 at the direction of then-General Kagame;
c. Former RPA Lt. Ruzibiza’s testimony, of March 9 and 10, 2006 was corroborated by other RPA officers, in the public record of the Military-I and Military-II Trials, who testified for the defence, but who were well-known to the OTP for many years and whose evidence was withheld from the ICTR Chambers by the OTP, including Military-I witnesses (as well as other witnesses in Military-II):
1. BRA-1
2. ALL-42
3. LX-1
d. The responsibility of former General Kagame for the assassination of the Presidents of both Rwanda and Burundi on April 6, 1994 was also the subject of the Affidavits of former Chief OTP Investigator, Michael Hourigan, Q.C. and Amadou Deme, the former Chief Military Intelligence Officer for UNAMIR General Dallaire, which unequivocally state that the evidence necessary to prosecute President Kagame for both of these crimes, at least, was presented to Chief Prosecutor Louise Arbour in early 1997. Both of which were also submitted into evidence in the Military-I Trial and are a matter of public record. (See Annex 3, Affidavit of Hourigan, Military-I Exhibit 365 and the Affidavit of Amadou Deme. Military-I Proposed Exhibit 366).
e. References to additional specific evidence suggesting that the assassination of these two Presidents at the hands of the RPA can be found in both the French and Spanish Indictments (See, Andreu and Bruguire Indictments) which have not been presented to the ICTR Chambers by the OTP, but are now in the public record before for this Chamber, and all concerned parties.
15. Evidence of other crimes committed by the RPA during 1994 in Rwanda, many of which have been charged to members of the former Habyarimana Government or the legal successor government established on April 8, 1998[10] by the OTP, include:
a. Assassination of national and local political leaders in late 1993 and early 1994 by elements of the RPA or RPA-trained civilians as part of a destabilization campaign in preparation for a final assault to seize power, which occurred after April 1, 1994.[11]
b. RPA rejection of the Arusha Accord settlement supported by all parties, including the United States (See Annex 4, Cable from U.S. Embassy in Kigali to U.S. Embassy in Kampala, U.S. Ambassador Rawson, April 1, 1994 describing RPA blocking of Arusha Accords settlement, NOT the Habyarimana Government as asserted by the ICT-OTP, which was contrary to U.S. State Department policy, also an Exhibit in Military-I).
c. The planned assassination of President Habyarimana as a pre-cursor to a pre-planned final assault which began on the night of April 6, 1994, in response to civilian killings as alleged by the OTP. (See testimony of former RPS officer BRA-1 who was based in RPA Mulindi Headquarters on April 6, 1994).
d. According to Gen. Dallaire, and UN-OLA, there was no coup but rather a re-organization of a civilian government authorized by the 1992 Rwandan Constitution and the April 8 Government was a legal representative with United Nations recognition. (See, May 25, 1994 Code Cable from Ralph Zacklin Chief, UN-Office of Legal Affairs, Military-1 Exhibit DNT 193)
e. The lawful successor- Interim Government and military made repeated overtures to the RPA to enter into an unconditional cease-fire, which was necessary to permit troops to withdraw from the front to put-down civilian massacres touched off by the assassination of President Habyarimana and the renewed invasion by the RPA.
d. UNHCR Report of May 17, 1994 (See, Annex 5) and Military-1 Exhibit DNT 259 describing massive killing of civilians by the RPA in southeastern Rwanda, in the general vicinity of Kibungo, that had been occurring long before that date.
e. Massive killings in northeast Rwanda, in and around Byumba in early May when the RPA seized the city, most of which have been charged to the former Habyarimana or Interim Government forces. (Testimony of Abdul Ruzibiza, BRA-1 and others).
f. Confirmation of on-going military-style killings in areas controlled by the RPA in the southeast, which were confirmed by UNCHR human rights investigator Gersony and contemporaneous reports published by Human Rights Watch of October 1994, Military-I, Exhibit 261 and Amnesty International of September 1994, Military-I, Exhibit 258.
IV. ICTR- OTP Has: (a) Withheld Evidence Regarding RPA-Kagame Government Crimes,
(b) Distorted the Functions of the ICTR and its Chambers; and,
(c) is Not a Neutral Proponent Regarding Transfer of ICTR Matters to Rwanda.
16. As already noted above, the Affidavits of the former OTP Investigator Michael Hourigan, Q.C. and members of his investigation team reveal that the complicity of current Rwandan President Kagame in the assassination to two Heads of State on April 6, 1994 was known to Chief Prosecutor Louise Arbour no later than January 1997 (See Affidavit of former ICTR-OTP Chief Investigator Hourigan, Military-I Exhibit DNT 365 and related affidavits) and to Judge Carla Del Ponte no later than July 2003, when she publicly announced her intention to prosecute members of the Kagame Government. (See Hartmann and Del Ponte, infra)
17. However, the Affidavit of Amadou Deme, who had been appointed by General Dallaire as his Chief Military Intelligence Officer, indicates that information leading to this conclusion was available long before it was actually presented to Chief Prosecutor Arbour in early 1997. Military-I, proposed Exhibit DNT 366.
18. Also, the above-mentioned documents which describe a much different picture of events in Rwanda in 1994, which include objective Third Party reports of massive crimes against civilians being committed by the RPA, were all derived from United Nations and OTP files. All of which were available for disclosure to the Chambers by the OTP during the entire period of the Tribunal’s operations.[12]
19. UN documents reporting meetings in Kigali between Kofi Annan and Brian Atwood of U.S.AID, and the then-Foreign Minister of Rwanda who had been recently recruited from the former government, Jean Marie Ndagijimana indicate that crimes being committed by the RPA and Kagame Government were known to the United Nations and the United States Government no later than August 1994. (See Gersony Subpoena Motion, Annexes 1-4, Military-I Exhibit DNT 260 and related documentary evidence).
The existence and substance of these meetings were confirmed by Mr. Ndagijimana in his testimony in Military-I in November 2006, as well as his refusal to take-part in suppressing the reports of crimes and his decision to go into exile shortly thereafter.
20. As the Chamber must be aware, in September 2007 the former press-aide to former ICTR-ICTY Prosecutor Hon Carla Del Ponte, Ms. Florence Hartmann, has publicly asserted that Judge Del Ponte had publicly acknowledged what had been known within UN and U.S. circles for many years…that the RPA and Kagame Government were responsible for crimes committed in Rwanda in 1994, all of which had been charged to members of the former government and military in the summer of 2003.[13]
21. As described by Ms. Hartmann, Judge Del Ponte was called to Washington, D.C. and ordered to take the same sort of actions that former Chief Prosecutor Louise Arbour had ordered her Chief Prosecutor, Q.C. Michael Hourigan to undertake in 1997, i.e. to forget the investigation and suppress the crimes committed by the Kagame Government or the RPA.
22. Significantly, Ms. Del Ponte has not disavowed any significant aspects of these public accounts of her removal from office in the fall of 2003, after she refused the “orders” from former ICTR Prosecutor Pierre Prosper.[14] In addition, recent news accounts indicate that Ms. Del Ponte may be collaborating with Judge Bruguiere to bring some balance to the accounts of the Rwanda War that have been presented to the ICTR Chambers by the OTP.[15]
V. Interference with the ICTR Defence Function, by the Kagame Government,
Disqualifies Rwanda as the Venue of Trials and Other ICTR Functions.
23. First, ADAD would note that even if none of the foregoing were in the public record and the evidence placed before the Chamber was impeccable, which it obviously is not, the suggestion that the United Nations should surrender members of a vanquished government and military, to the care and custody of the government and military that deposed them, is completely contrary to logic, as well as the mandate of the Security Council that the International Criminal Tribunal for Rwanda function in an even-handed manner, untainted by the “victor’s justice” that was necessarily attendant to the Tokyo and Nuremburg Tribunals.
24. However, in addition to the foregoing there is substantial evidence that the Kagame Government continues to consider itself an “interested party” in the ICTR litigation, as well as in maintaining a legal system in Rwanda that makes fair trials impossible, for one or more of the following reasons:
a. The “crime” of Negationism enacted by the Rwandese Parliament[16] criminalizes alternative explanations for the Rwanda War and the last 90 days of that War that might shed light on the involvement of the now well-established involvement of the RPA and Kagame Government in crimes committed during 1994, as well as before and after.
b. ICTR defence counsel, including the undersigned President of ADAD, has been publicly accused of this crime in Rwanda and has been personally denounced by President Kagame for suggesting that the substance of former Chief ICTR Prosecutor Judge Del Ponte’s assertions, and those of former Chief ICTR Investigator Michael Hourigan are correct (Exhibit DNT 365), i.e. that the RPA and members of the Kagame Government are responsible in large part for the crimes that have been charged to their opponents by the ICTR-OTP both before and after Judge Del Ponte was removed from office.
c. In addition, the Rwandese Investigator of undersigned President of ADAD, Emilien Dusabe, was accosted in Rwanda by the Auditor Militaire, after he was obligated by the UN Office in Kigali to report incidents of intimidation of defence witnesses of which he had become aware. Mr. Dusabe was subsequently threatened with prosecution himself, and was obliged to seek asylum in Europe and was lost as an asset to the defence.
d. Similarly, Rukondo defence investigator Nshogoza was seized in Rwanda last summer and charged with “Negationism”[17] until being released, only to be charged by the same ICTR- OTP that has declined to prosecute the Kagame Government, or President Kagame in what only can be seen as an exact example of the close relationship, and unity of interests between the ICTR Office of the Prosecutor, and the Kagame Government, as described in the Hartmann reports of a political quid pro quo at the heart of the decision- making of the ICTR-OTP.[18]
e. These attacks on the defense are not limited to defence staff, but ICTR Defence Counsel have also been seized at the behest of the Kagame Government, as occurred in September 2006 to our ADAD colleague Callixte Gakwaya, a Rwandese ex-patriot with asylum in Mozambique. Me. Gakwaya was arrested by Tanzanian authorities when he arrived in Arusha to meet with his client and was released only with the assistance of the President and the Registry but, as a result he was unable to continue with his ICTR assignment.
f. The foregoing make clear that, even at the ICTR located outside of Rwanda, the Kagame Government has sought to use its considerable power to interfere with the zealous advocacy necessary to ensure the presumption of innocence, even a United Nations undertaking, much less proceedings within the full control of the Kagame Government.
VI. Interference with ICTR Evidence and Witnesses by the Kagame Government Disqualifies Rwanda as a Venue for the Transfer of ICTR Cases, and Other Matters.
25. Former expert witness for the Office of the Prosecutor, Prof. Filip Reyntjens, has submitted an expert report (See, Annex 6) which confirms and summarizes the experience of defence counsel over the past several years. The Kagame Government has played an active role in preparing OTP witnesses to testify at the ICTR in a way that will absolve witnesses of criminal charges of “Negationism” upon their return, by coaching and rewarding witnesses for providing evidence that support the Kagame Government’s posture of assigning all blame for the Rwanda War to those the RPA and Kagame Government defeated.
26. The Report of Prof. Ryentjens documents the use of Ivega and Abuka, supposedly “survivors” organizations, to coordinate and “shape” witness-testimony presented with the assistance of the OTP to ICTR Chambers in a concerted attempt to mislead the Judges of the ICTR as to the actual circumstances which arose during the temporal jurisdiction of the Tribunal, as described by Judge Del Ponte.
27. In addition, numerous ADAD members have reported example after example of particular examples of apparently “manufactured” testimony provided by Rwandans whose very existence now depends on acceptable relations with the Kagame Government, who former ICTR Chief Prosecutor, Judge Del Ponte, has identified as at least partly responsible for crimes committed in Rwanda in 1994, which means that evidence must have been manipulated to prevent the crimes of the government with whom the OTP requires cooperation, from coming to the attention of the ICTR Chambers.[19]
28. There are simply too many examples of both documentary evidence and witness testimony having been manipulated by the Kagame Government, or by the OTP (as described by Judge Del Ponte and Chief Investigator Hourigan) with the necessary assistance of the Kagame Government too list. However, ADAD would suggest that a search of the record in any of the cases in which members of this Chamber have participated will provide many specific examples which the Honorable Judges will recall.[20]
VII. The ICT-OTP and Registry Have Apparently Already Begun the Transfer of Cases to Rwanda, thus Making the Decision of this Chamber, or Others, Either Futile or a Nullity.
29. The OTP has, of necessity, relied upon the assistance of the Kagame Government to provide evidence necessary to create cases to put before the ICTR Chambers, since nearly all Prosecution witnesses live under the jurisdiction and control of the Kagame Government in Rwanda, and the laws of Rwanda criminalize dissent from the Kagame Government’s official explanation of the events that resulted in it having risen to power by force.[21]
30. The existence of a close relationship between the Kagame Government, and its United States sponsor, as articulated in the experiences of former ICTR Chief Prosecutor Del Ponte and the policy of protecting the Kagame Government from responsibility by manipulating the OTP function, as demonstrated by the statements and actions of former ICTR Prosecutor Pierre Prosper described in the Hartmann book (which has NOT been disavowed by Ms. Del Ponte and has been expanded upon in her own recently published book) provides additional insights into the manipulations have prevented the ICTR Chambers from facts upon which to base juridically sound rulings.[22]
31. The appearance that the Chambers are merely “window dressing” for a previously established plan to close the Tribunal and to shift all function to Rwanda was heightened during the past month when the visit of U.S. President Bush in Kigali coincided with the public announcement of the ICTR Registry that Rwanda had been approved as a proper venue to which ICTR matters may be transferred. In light of the Spanish Indictment of some 40 members of the Kagame Government for war crimes, crimes against humanity and genocide, the announcement was almost amusing in its open disregard for basic principles of neutrality, in the face of growing disclosures of manipulation of the Tribunal by interested UN Member-States, including the United States of America and the Kagame Government, were it not a matter of life and death for UN-ICTR detainees who ADAD members are sworn to properly represent before the ICTR.
32. Moreover, for nearly a year, the ICTR Registry in the person of Mr. Amoussouga with others, has been organizing “training sessions” in Kigali to prepare members of the Kigali Bar to assume responsibility for ICTR cases that apparently will be transferred there. Since there is no evidence of the training of lawyers in other possible transfer venues, one can only conclude that the Registry has already decided the matter, despite the fact that any decision is supposed to be pending before this and other Chambers.[23]
33. A “pre-emptive” transfer seems to have already have occurred…according to both the OTP and the Registry, leaving this Chamber with “deciding” a fait accompli. The question is whether, in light of the foregoing, this Chamber and others, will continue to permit themselves to be manipulated by the OTP submission of incomplete and misleading information to accomplish the real objectives set for the ICTR by powerful Member-States, as described by Judge Del Ponte: to further the political quid pro quo between the major benefactor of the Tribunal, the United States of America, its United Kingdom ally, and its surrogate-armed forces in Central Africa, the Kagame Government and Rwandan Armed Forces.
WHEREFORE, the Association des Avocats de la Defence (ADAD), the only organized defence lawyers organization at the ICTR, grateful for this opportunity to present its views and unique experience as Amicus Curaie, requests that his Honorable Chambers reject any consideration of the transfer of ICTR functions to the Republic of Rwanda and, furthermore, that the Chamber request an extension of the Mandate of the ICTR to complete the investigation and prosecution of all crimes committed in Rwanda in 1994, including those of the Kagame Government and the Rwandan Patriotic Army, which have improperly been charged to the ICTR Accused, at least thus far.
In the last analysis the question for each member of the ICTR Chambers, and all of us who have labored long and hard to establish the ICTR as a respectable foundation for the development of international criminal jurisprudence, including Ms. Del Ponte, is…..
How will history judge us, and what we have done here?[24]
The answer is in the hands of the Chamber.
Respectfully submitted, on behalf of ADAD, as amicus curiae
_______________________________ April 10, 2008
Prof. Peter Erlinder, Pres. (U.S.) peter.erlinder@wmitchell.edu
ADAD Bureau
Me. Otachi O Bw’amanwa, V.P. (Kenya) gershomotachi@yahoo.com
Me. M. Sahinkuye, Gen. Sec (Denmark) sahinkuye2002@yahoo.fr
Me. Christopher Black (Canada) bar@idirect.com
Me. Nathalie Leblanc (Canada) nathalieleblanc@hotmail.com
Me. John Philpot (Canada) jphilpot@videotron.ca
ANNEXES 1. Indictment of 40-Kagame Government leaders issued by Judge Andreu, February 8, 2008, 182 pp. 2. Translated Excerpts from Hartmann, Paix et chatiment, les guerres de la politique (Flammarion, Paris) September 2007. 3. Affidavit of former Chief ICTR Prosecutor Michael Hourigan with references to documents in the Military-1 record. 4. April 1, 1994 Cable from U.S. Ambassador Rawson to Kampala verifying that the RPF/A bear responsibility for the failure of the Arusha Accords. 5. UNCHR Report of May 17, 1994 reporting massive war-crimes committed by the RPF/A in the area they occupied in eastern Rwanda. 6. Report of former OTP expert-witness Prof. Filip Ryentjens, submitted in Prosecutor v. Kanyabashi, ICTR-96-15-I, 16 August, 2007. 7. ADAD Dossier, submitted to attendees of ICTR Legacy Conference, December 1, 2007. 8. Hirondelle article regarding Hon Carla Del Ponte’s book to be published in Italy April 2008. [1] Quoted in Hartmann, Paix et chatiment: les gueres de la politique (Flammarion, Paris September 2007). [2] The assassination of President Ndadaye in October 1993 by this own military, and the massive killings of Burundian civilians that followed, set the stage for the Rwanda massacres following the assassination of Rwandan President Habyarimana and the second Burundian President six months later. Former U.S. Ambassador to Rwanda, Robert Flaten, testified in Military-1 that he personally warned Paul Kagame that he would be responsible for the massive civilian-on-civilian killings if he resumed the war. (See testimony of Hon. Robert Flaten, July 2006). The Burundian military, which carried out the assassination and civilian killings was allied with the RPA, as the Chamber is aware. See, Ntabakuze Amended Final Trial Brief Part Three, II. Alternative Explanation for Tragic Events Occurring in Rwanda in 1994, pp. 138-175 and associated Exhibits (May 28, 2007)[3] Introduced into the public record of the Military-I Trial, December 2006/January 2007.[4] Given the revelations of Ms. Del Ponte, QC Michael Hourigan (infra), the evidence already in the public record at the ICTR (references, infra), it seems unlikely that the political manipulations that have prevented the ICTR Chambers from receiving the full-range of evidence available to the OTP will not become generally known in the near future, as historians and others assess the ICTR and the contributions made by its participants to the establishment of a system of international criminal jurisprudence.[5] Statute of the International Criminal Tribunal for Rwanda, Article I.[6] Documents describing RPF crimes currently being charged to ICTR Accused include: Military-I Exhibits DNT 263A, DNT 263B, DNT 263C, DNT 264, DNT 257, DNT 261, DNT 258, DNT 365, DNT 366, DNT 260, DK 112 (hard-copies available upon request and are referenced for ease of transmission, all are in the public record of the Military-I Trial), as well as testimony of numerous former RPA officers and other witnesses described, infra.[7] See, Ntabakuze Amended Final Trial Brief Part Three, II. Alternative Explanation for Tragic Events Occurring in Rwanda in 1994, pp. 138-175 and associated Exhibits (May 28, 2007)[8] Id. [9] Ruzibiza, “Rwanda, the Secret History” (Paris 2005), referred to by former RPA Lt. Ruzibiza in Military-I testimony March 2006, Exhibit DNT 126.[10] Please see letter from United Nations Office of Legal Affairs, Ralph Zacklin, informing UNAMIR personnel in Rwanda that the “interim government” was established pursuant to the 1992 Rwandan Constitution and, in light of the collapse of the Arusha Accords, constituted the legally constituted successor government to that of former President Habyarimana of May 25, 1994. Military-I exhibits DNT 117, DNT 193, DNT 194. Also, see the Code Cable from Gen. Dallaire to DPKO of April 13, 1994 disavowing that the Interim Government represented a “coup”, Military-I Exhibit DNT 108.[11] See Testimony of Abdul Ruzibiza, other former RPA officers and book by Ruzibiza, Military-I Exhibit DNT 216.[12] See, Ntabakuze Amended Final Trial Brief Part Three, II. Alternative Explanation for Tragic Events Occurring in Rwanda in 1994, pp. 138-175 and associated Exhibits (May 28, 2007)[13] Judge Del Ponte announced in the summer of 2003 that evidence sufficient to begin prosecuting the RPA and Kagame Government was known to the OTP at that time. See Hartmann, supra and infra.[14] See, Annex 3, excerpts from Florence Hartmann, “Peace and Punishment” (Flammarion, Paris, September 7, 2007) and recent book by Judge Del Ponte, “Hunt, Me and War Criminals” (April 2008)[15] Id. and Hirondelle, April 2008.[16] L’Article 4 de law Loi Rwandaise Negationisme de Genocide. LOI No 33 Bis/2003 Reprimant le Crime de Genocide Les Crimes Contre L’imanite et les Crimes de Guerre.[17] See Annex 7. Urgent Appeal from ICTR Defence to the International Community, November 24, 2007 in ADAD Dossier for the ICTR Legacy Conference, December 1, 2007, Arusha, TZ.[18] See, Hartmann, “Peace and Punishment”…and Del Ponte, “Hunt…etc”[19] The examples are too numerous to catalogue here, but two good examples were witnesses DH-90 and DH-91 in the Military-I Trial who insisted on testifying anonymously because, as residents of Rwanda, they feared retaliation against themselves or their close associates should the Kagame Government learn that they were “Negationists.” Both were members of a religious order, and of European descent. (See Closed Session testimony of Military-I witnesses DH-90 and Dh-91. There are many, many others in all trials before all Chambers.)[20] It is a matter of public record that the Kagame Government cut-off the flow of witnesses to the Tribunal making it necessary for the former President and the Registrar to assure President Kagame that prosecution witnesses would not be aggressively cross-examined by the Defence and other concessions necessary to restore the flow of prosecution witnesses, discussed in Hartmann, “Peace and Punishment…” and Del Ponte, “Hunt….”[21] Id.[22] Id.[23] Defence Counsel, Me. Peter Robinson, has been engaged to participate in panel discussions and other programs organized by the Registry to “train” Rwandan lawyers to accept cases from the ICTR, as though the Decision of this and other Chambers has already been made. (Additional documentation available upon request).[24] See Annex 7. ADAD Dossier prepared for the ICTR Legacy Conference, December 1, 2007, Arusha, TZ. Including the March 26,2007 letter from ADAD to the Security Council making a public record of the evidence in the ICTR record nearly 6-months before the Hartmann book was published and nearly a year before the February 08, 2008 indictment issued by Judge Andreu.
