16 Jean Kambanda, Convicted without Trial
On 6 April 1994 an aircraft carrying the presidents of Rwanda and Burundi, the chief of staff of the Rwandan army, and other senior Rwandan and Burundi officials, was shot down as it came into land at Kigali airport. All the passengers and three French crew were killed. By common consent, it was this event which triggered what has become known as the Rwandan genocide, a three-month massacre in which hundreds of thousands of people, mainly ethnic Tutsis, were murdered, often with machetes. The fighting ended with the victory of the Tutsi-dominated Rwanda Patriotic Front (RPF), which managed to overthrow the Hutu government in July and has remained in power ever since.
The Rwandan genocide has become the defining event in the canon of modern military and judicial interventionism. It inspired – and continues to inspire – huge revulsion, as hundreds of thousands of men, women, and children were hacked to death. A number of Hollywood feature films have been made about it (in contrast to the roughly contemporaneous events in Bosnia, which have generated no equivalent entertainment). The few months between the shooting down of the plane in April and the RPF victory in mid-July 1994 have been elevated to the supreme reference point for the two main claims of the interventionists: first, that the West stood idly by while the killing took place (there were UN soldiers in Rwanda at the time and yet they did not stop the killing) and that, therefore, it should instead intervene in other places in the future; and second, that the immunity customarily given to heads of state should, like state sovereignty itself, be cast aside in favour of the superior commands of universal morality so that the people responsible for organizing such atrocities can be put on trial as war criminals.
Rwanda is a small state in East Africa which, like many other countries on that continent, has been beset by ethnic problems which are partly ← 209 | 210 → inherited from the age of colonialism. Until 1961 Rwanda was governed by first Germany and then Belgium via a Tutsi monarchy and aristocracy ruling over a huge Hutu majority. When the monarchy was overthrown, in a classic democratic postcolonial revolution, many Tutsis fled, fearing repression by the new majority in power. Throughout the 1960s and 1970s Tutsi guerrillas attempted to wreak revenge by terrorizing the population, attacking at night and killing civilians. Hutus accused Tutsis of wanting to re-establish the monarchy and their servitude under it.
In addition to its own basic internal instability, Rwanda is prey to larger geopolitical forces outside its territory, especially since its indigenous ethnic groups also live in the neighbouring states of Burundi, Uganda, and Congo (the former Zaire). In the 1990s those larger geopolitical forces included the push by the United States to increase its influence in the Great Lakes region, including at the expense of France; this was one of the factors behind the wars in Congo, which cost three million lives. Finally, there was also an ideological aspect to the conflict in Rwanda: the RPF, led by General Paul Kagame (now president of Rwanda), was essentially an outgrowth of the Maoist guerrillas in neighbouring Uganda who had fought to bring President Museveni to power there in 1986. By contrast, many of the Hutu leaders from whom Kagame seized power in July 1994 were devout Catholics. For instance, Jean Kambanda – the focus of this chapter, since he was prime minister of Rwanda during the genocide, and who made international humanitarian law history in 1998 when he became the first head of government to be convicted of genocide by an international tribunal – is a daily communicant, while the late President Juvénal Habyarimana (the one killed in the plane crash), had been introduced to charismatic Catholicism by the extremely devout late Belgian royal couple, King Baudouin and Queen Fabiola, and they used to pray together whenever they met.1
In 1990 the RPF, most of whose leaders were officers in the Ugandan army, invaded Rwanda with Uganda’s backing. Kagame himself was chief of Ugandan military intelligence at that time, having been trained in the United States at Fort Leavenworth in Kansas. Some have speculated that the United States encouraged the invasion, President Habyarimana having refused to toe a pro-American line in foreign policy. The invasion was also partly directed at Congo (Zaire) to the west of Rwanda, and at seizing control of its vast natural resources, especially diamonds and coltan (a metallic ore used in mobile phones and DVD players). Following the events of 1994, indeed, the new American-backed Tutsi Rwandan army did take part in the invasion of Congo, together with Ugandan forces, an invasion which represented the beginning of the First Congo War of 1996–7 and ← 210 | 211 → which led directly to the overthrow President Mobutu of Zaire and to the installation of Laurent Kabila in his place.
After the 1990 RPF-Ugandan invasion of Rwanda (to which the world paid little attention, since it was more interested in the contemporaneous Iraqi invasion of Kuwait), there followed four years of violence and insurrection. The RPF forces used classic Maoist guerrilla tactics, roaming in and out of Uganda and driving huge numbers of Hutus out of the territory they seized. The resulting conflict eventually caused President Habyarimana to seek peace by signing the internationally backed Arusha Accords in August 1993. These accords provided for the RPF rebels to be included in the government, together with other political parties. Shortly after they were signed, however, the (also Hutu) president of neighbouring Burundi, Melchior Ndadaye, was assassinated in October 1993 by Tutsis in the army of Burundi, after only three months in office, and this caused hundreds of thousands of Hutus from Burundi to flee into Rwanda.
In spite of the signature of the Arusha Accords, RPF attacks continued in the first four months of 1994. UN troops had been despatched in late 1993; as in Bosnia, the worst killings in Rwanda occurred on the UN’s watch. But it was on return from a meeting in Tanzania to discuss the implementation of the accords that two presidents (the recently appointed President Cyprien Ntaryamira of Burundi was, like Habyarimana, a Hutu) and the Rwandan chief of staff were killed when their plane was shot down. The RPF blamed Rwandan Hutu extremists for murdering their own president in order to sideline him and to have a pretext for committing genocide against the Tutsis (the Tutsis had been alleging Hutu ‘genocide’ against them since 1961), while the Hutus blamed the RPF and the Tutsis.
Whatever the truth, the killing sparked off was on a huge scale. It is not known how many people died and it is not known what percentage of Hutus and Tutsis were killed. One figure which has gained currency is 800,000 killed but even the human rights activists who advance this figure say that they do not know the real tally. Certainly such a figure is enormous; for comparison the highest rate of deportation to Auschwitz which the Nazis achieved was 400,000 from Hungary in two months in 1944. Others claim that 200,000 or so were killed between 6 April 1994 and mid-July 1994 when the RPF seized the Rwandan capital, Kigali. Whatever the truth, these are huge figures, especially considering that the method of killing was primitive rather than industrial. But the resulting claim of genocide, however plausible, has been politically exploited by the RPF Tutsi government to justify its return to the situation which prevailed before the referendum against the monarchy in 1961: Rwanda is now once ← 211 | 212 → again governed exclusively by the Tutsi minority, although this time with heavy backing from the United States rather than Belgium.
As a result of the outrage at the killing, the UN Security Council created the International Criminal Tribunal for Rwanda (ICTR), by means of Security Council Resolution No. 955 on 8 November 1994. Like its sister tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICTR was therefore not established by law, a violation of a key legal principle outlined in nearly all authoritative international documents on human rights (e.g. Article 14 of the 1966 United Nations Covenant on Civil and Political Rights, Article 6 of the European Convention on Human Rights). The purpose of this prohibition is to prevent the creation of ad hoc tribunals to prosecute specific people. In its 2003 report on the trial of the ‘Grenada 17’ – the sixteen men and one woman including the former prime minister of Grenada, Bernard Coard, who were sentenced to death (commuted to life imprisonment) in 1986 for murdering Coard’s predecessor, Maurice Bishop, in 1983 – Amnesty International denounced that trial as an act of political vengeance conducted under pressure by the Americans who had invaded Grenada in 1983 to overthrow a Marxist government there. Amnesty stressed the inherent illegality of ad hoc tribunals.2 Today, by contrast, one does not hear the same criticism of the more recently created international tribunals which are just as ad hoc as the ones which convicted Coard. On the contrary: when the trial of Charles Taylor, the former president of Liberia, opened on 4 June 2007 in a specially constituted branch at The Hague of the UN-backed ‘Special Court for Sierra Leone’ – today’s supporters of such trials do not blush to call their courts ‘special’ – Amnesty ‘welcomed’ the fact that he was on trial, and exhorted the Special Court to broadcast the trial for maximum educative effect back home.3
The normal and constitutionally correct method for establishing an international criminal tribunal would have been for a treaty to be submitted to ratification. This was done when the International Criminal Court (ICC) was created in 1998. Even though the United Nations lawyers fully understood the constitutional implications of what they were doing when they created the ICTY and the ICTR,4 they decided to create these tribunals by executive fiat for reasons of pure political expediency. They knew that the ratification process would be slow and that it would probably fail thanks to resistance by the states concerned (especially in the case of Yugoslavia). Given that both these tribunals are international, and that the judges on their benches come from all over the world – embodying the principle that ‘the peoples of the world’ are sitting in judgement over those who flout the basic principles of humanity – these tribunals also ← 212 | 213 → bear a constitutional and ideological resemblance to those ad hoc ‘people’s tribunals’ which Communists used to purge postwar Europe, also in the name of that nebulous concept, ‘the people’.
The Charter of the ICTR gives the court temporally limited jurisdiction, namely the period 1 January to 31 December 1994. This means that few acts committed by the RPF and Tutsis, for instance massacres of Hutu refugees in Congo when Rwanda invaded Zaire in 1996, can be adjudicated. Indeed, no one from the RPF and no Tutsi has ever been prosecuted by the tribunal: all the defendants are from the defeated regime, even though the RPF undoubtedly also committed atrocities when it seized power. Rather as at Nuremberg, which limited aggressive war to that committed by the Axis, the genocide referred to in the indictment is only the genocide of Tutsis by Hutus, not genocide in general: the Commission of Experts which reported to the UN general secretary in 1994, and whose report was used as the basis for the creation of the ICTR, said that there was overwhelming evidence that genocide had been committed against the Tutsis, but none for genocide against Hutus.5 So one side was proclaimed guilty as charged even before the tribunal was created, and that proclamation of guilt became one of the founding documents of the tribunal.
Because the ICTR prosecutes only Hutus, it is a clear example of victors’ justice. Just as the Yugoslavia war crimes tribunal refused to open an investigation into whether NATO had committed war crimes in Yugoslavia in 1999 for fear that information from NATO sources to the prosecutor’s office would dry up immediately, so Kigali made it absolutely clear to the ICTR prosecutors that the supply of witnesses and information from Rwanda would dry up immediately if there was so much as a hint of any impending prosecutions against members of the RPF. It is for this reason that one of the most prominent expert witnesses who used to work with the Office of the Prosecutor, Professor Filip Reyntjens of the University of Antwerp, wrote in 2005 that he was refusing to do so any more: there was, he said,
compelling evidence on a number of massacres committed by the RPF in 1994. These crimes fall squarely within the mandate of the ICTR, they are well documented, testimonial and material proof is available, and the identity of RPF suspects is known. If they are left unprosecuted, the ICTR will have failed to eliminate one of the root causes of genocide and other crimes – impunity. Indeed, it is precisely because the regime in Kigali has been given a sense of impunity that, during the years following 1994, it has committed massive internationally recognised crimes in both Rwanda and the DRC. Article 6(2) of the Statute explicitly rules out immunity, including for Heads of state or government or for responsible government officials. ← 213 | 214 → This principle is contravened when, as is currently the case, a message is sent out that those in power need not fear prosecution. In addition, by meting out victors’ justice, the ICTR fails to meet another stated objective, namely to ‘contribute to the process of national reconciliation and the restoration and maintenance of peace’.6
This structural presumption of guilt was reinforced in June 2006 when the Appeals Chamber of the ICTR instructed the Trial Chamber to ‘take judicial notice’ of the ‘fact of genocide’.7 To take judicial notice of something is a device in legal procedure by which the need for proof is waived when the facts in question are uncontested and uncontroversial, and usually when they do not bear on the matter in hand. Examples of the kinds of things of which judicial notice can be taken include the location of a place or the day of the week on which a certain date falls. When judicial notice is taken of a fact, it means that that fact can no longer be disputed in court.
To instruct the Trial Chamber to take judicial notice of the fact of genocide, however, is to remove from defendants the right to plead that genocide did not occur. The Prosecution case is that the Hutu Rwandan government planned, instigated and carried it out. If it turns out that what occurred was not genocide but mob violence, then obviously there can be no convictions for genocide. Genocide is widely regarded as a crime committed only by states.8 Three of the five acts defined as genocide in the ICTR’s own statute can only be committed by organizations wielding state power or claiming to. Moreover, the ICTR’s statute, like the other relevant international humanitarian law documents including above all the Genocide Convention of 1948, stipulates that genocide means acts committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’: the mens rea or guilty intent is crucial. In order to prove command responsibility on the part of people who were not actual perpetrators, therefore, it would be necessary, first to show that genocide was committed and then to show that the non-perpetrator defendants were guilty of complicity in it or of conspiracy to commit and organize it. Genocide allows the prosecutorial net to be cast very widely, for instance to prosecute people for allegedly instigating it through the media or, in one case, through pop songs, but such prosecutions become futile if there was no genocide. By contrast, if it is assumed that genocide did occur, then it follows (as a matter of law) that someone must have planned it, or that other non-perpetrators bear criminal liability for it according to the various forms of liability for genocide listed in Article 2(3) of the ICTR statute.
The political nature of this ruling was admitted when the ICTR itself said that it would ‘put the occurrence of the genocide beyond legal dispute’ ← 214 | 215 → because it meant that genocide should be taken ‘as established beyond any dispute and not requiring any proof’. The ruling, it said, would ‘silence the “rejectionist” camp which has been disputing the occurrence of genocide’ and relieve the Office of the Prosecutor ‘of a substantial burden of proof’. Henceforth, the role of each trial would only be to establish ‘the personal involvement of the accused person in genocide’.9 The similarity with the Riom trial was striking, of which Marshal Pétain said the function was only to establish the appropriate sentence for the pre-established guilt.
The decision smacked of desperation. Perhaps it was an indication that the Prosecution case was precisely having difficulty proving its original claims. The Prosecution initially alleged that President Habyarimana’s regime had had genocidal plans as early as 1990, and that it was merely waiting for the pretext to implement them. Somewhat inconsistently, it also argued, at least in the early trials, that Habyarimana’s murderers killed him in order to get him out of the way so as to enable the genocide to happen. However, both these (contradictory) theories have been progressively abandoned in Prosecution arguments, as it becomes more difficult to pin the blame for the shooting down of the plane on Hutus.
In 1997, indeed, the ICTR’s investigations into the event were abruptly terminated. The UN investigator, the Australian Michael Hourigan, has alleged that this happened when it became clear that the finger pointed not at the Hutus but at Paul Kagame, the former Tutsi rebel leader and now president of Rwanda.10 This claim has also been made by a French investigating magistrate, Jean-Louis Brugière, acting for the families of the deceased French citizens. In November 2006 Brugière issued an international arrest warrant for nine senior Rwandan officials: the sixty-four-page warrant is a highly detailed and damning indictment of Kagame’s role in precipitating the crisis in Rwanda.11 It is only because French law prohibits arrest warrants against serving heads of state that Kagame’s name itself is not on the list of indictees. But Brugière has accused Kagame of obstructing all investigations into the shooting, and also alleges that the CIA is the author of the original ‘disinformation’ that the plane was shot down by Hutus, which he describes as ‘political’ and ‘intended to discredit France’. Brugière’s arrest warrant was signed on 17 November 2006 and Rwanda broke off diplomatic relations with France within a week.12
The reason why the responsibility for the shooting down of the plane is so important is that, if it is demonstrated that the order was in fact given by the Tutsis, then the theory of a pre-planned genocide, central to the original charge against the Hutus, collapses. More generally, the question of responsibility for the shooting down of the plane occupies the same position in the legal reasoning (of both the Prosecution and the Defence) ← 215 | 216 → as did the charges for starting the war made against the Kaiser in 1918 and the Nazis and the Japanese after 1945, who were indicted for the crime of aggression or of violating the sanctity of international treaties, i.e. for starting those conflicts.
By the same token, only if the attacks were ‘widespread and systematic’ can they constitute ‘crimes against humanity’; if they were spontaneous and inchoate, then convictions cannot be obtained for crimes against humanity. Worse, the ICTR itself has an institutional self-interest in proving these graver ‘international’ crimes because if the killings were simply ‘ordinary’ war crimes, committed by ordinary people, then there would be little or no legal justification for the existence of an international tribunal at all. The centrality of ‘genocide’ to the ICTR’s raison d’être is emphasized by the fact that it is the first crime listed in the tribunal’s charter, before all the others, whereas in the ICTY it is the third (after grave breaches of the Geneva Conventions and War Crimes).
To these fundamental problems of ideological prejudice must be added the procedural weaknesses which are the hallmark of the ICTR, even more so than of the sister tribunal for Yugoslavia in The Hague.13 The rules of procedure at both the ICTY and the ICTR are heavily stacked against the Defence. The Prosecution is structurally part of both tribunals (together with the judges and the registrar) while the Defence is outside it. Indeed, the full title of the ICTR is ‘International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda’, not ‘for the trial of persons accused of … etc.’, The ICTR is prosecutorial in its very essence.
Perhaps the most obvious erosion of defendants’ rights is the length of the trials. The trial of the man alleged to be the main ringleader of the genocide, Théoneste Bagosora, started when he was arrested in 1996, yet the Prosecution did not deliver its closing submissions until over ten years later, on 1 June 2007. The trial is not expected to end until 2008, twelve years after his arrest. Other defendants have been in detention for similar periods of time. Such periods of detention are simply incompatible with the presumption of innocence, or with the right to a swift trial.
Secondly, there is very heavy reliance on ‘expert witnesses’. ‘Expert witnesses’ are people who have not, in fact, witnessed anything but who present themselves as experts about the events in question. This is an abuse of the process of cross-examination, the purpose of which is to test forensically whether or not a defendant’s testimony is reliable. Expert witnesses are typically Europeans or Americans who regard themselves as activists fighting for a cause, but who were many thousands of miles away ← 216 | 217 → when the events occurred. Their opinions should have no probative value whatever in establishing whether or not a crime was committed.
In addition to expert witnesses, the ICTR (again like the ICTY) relies heavily on anonymous witnesses. This infringes one of the most basic rights of a defendant in a criminal trial, the right to cross-examine witnesses for the Prosecution. If the defendant does not know who the witness is, then it is very difficult to establish his credibility. Worse, in the ICTR, the same people have testified anonymously on repeated occasions in different trials, with different code names on each occasion, sometimes giving different or even conflicting evidence about the same events. The Defence has no way of knowing that this is taking place, precisely because the identity of these witnesses is hidden. The difficulty of knowing what has been said in trials is also aggravated by the widespread use of in camera sessions, in which what has been said in court is simply secret. Defence lawyers suspect that such anonymous witnesses are simply paid agents of the Rwandan government who travel to Arusha in Tanzania (where the ICTR is located) to spin whatever yarns they are required to spin for the purposes of a particular trial. The justification for this widespread use of anonymity is that Prosecution witnesses are said to be in danger of their lives, but in fact it is Defence witnesses who are more at risk: six of them have been killed shortly after giving testimony.
Much of the ICTR’s procedural laxity was laid down in the first judgement, that against Jean-Paul Akayesu, a schools inspector and mayor found guilty on nine counts including genocide and crimes against humanity. The ICTR ruled then that no corroboration was needed for allegations of rape; that hearsay evidence is admissible; that it does not matter if witnesses’ written statements differ from their testimony in court; and that inconsistencies in witness testimony can be explained by trauma (but that it can still be used to convict people).14 The reasoning, therefore, is fatally circular: if a Prosecution witness’s testimony is contradictory, this is adduced as evidence that he or she was a victim. Inconsistency becomes proof of credibility rather than a sign of unreliability. The very fact that the ICTR has a ‘Witness and Victim Protection Unit’ shows that the institutional assumption is that witnesses are by definition victims, an assumption which is incompatible with the presumption of innocence of the defendant.
Last but not least, there are surreal problems of translation which reflect huge cultural differences between the Western-backed law of the ICTR and the state of Rwandan society. Many concepts at the heart of the Prosecution case simply do not exist in the Rwandan language, Kinyarwanda. The Kinyawanda term for the RPF army is a vague and imprecise ← 217 | 218 → historical term; there is no distinction in the language between rape and consensual sex; and there is no distinction between an accomplice and a supporter. A large part of the Prosecution case turned on the fact that the Hutus referred to the Tutsis as ‘cockroaches’, although it was not always clear that the Kinyarwanda word, ‘inyenzi’, actually meant this or whether it had the same repulsive connotations as in European languages. (The term was sometimes used by the rebels themselves, because they came out at night, while ‘inyenzi’ was also a merely derogatory form of ‘Inkotanyi’, a word referring to a nineteenth-century tribe.) Finally, as the Akayesu judgement itself noted but was happy to ignore, the African tradition makes little or no distinction between events which a person has actually witnessed himself and events of which he has only heard speak.
Although the Prosecution alleges that the main ringleader of the genocide was Colonel Théoneste Bagosora, who helped form the provisional government after the assassination of President Habyarimana, the man who in fact became prime minister following the assassination was Jean Kambanda, who in 1998 pleaded guilty to genocide and was sentenced to life. Kambanda thus made history – and delighted international humanitarian law activists – by becoming the first person ever to be convicted of genocide, the supreme international crime, by an international tribunal, since the ratification of the UN Convention on Genocide in 1948. Since he was a head of government, his conviction is said to herald a milestone in the fight against sovereign immunity and therefore a major victory in the ICTR’s own struggle for self-justification.
On closer inspection, the story is more complicated. Kambanda was originally arrested on 18 July 1996 in Kenya (in a spectacular round-up of suspects who included one case of mistaken identity15). Nearly two years later, and after having been held in Dodoma, away from the other defendants, Kambanda appeared before the Trial Chamber on 1 May 1998 and pleaded guilty to all six counts against him: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity for murder and extermination. Because of the guilty plea, there was no trial and no legal examination of the charges themselves. A hearing was held on 3 September 1998 and the following day Kambanda was sentenced to life imprisonment.
The text of a ‘Plea Agreement between Jean Kambanda and the OTP [Office of the Prosecutor]’ was published in the sentencing and judgement decision of 4 September 1998.16 The agreement contained admissions of guilt by omission and of guilt by association but at no point did Kambanda admit that he ordered genocide or that he was party to a deliberate conspiracy to commit it. Three days after his sentence, Kambanda ← 218 | 219 → announced that he was appealing. On 11 September, he wrote a five-page letter revoking his guilty plea, and denouncing the tribunal and the way it operated. He complained that his family had not received protection, as he said he had been promised by his lawyer, Oliver Michael Inglis, and that he had in any case not instructed this court-imposed lawyer. ‘I do not recognize Maître Inglis as having been my lawyer or as able to be it in the future. At best, he has been working for the Prosecution.’17 It was indeed the case that Inglis had known the prosecutor, his compatriot from Cameroon, for thirty years and that they had previously worked for the same law practice.
In other words, Kambanda denied that he had meant it when he pleaded guilty. Maybe he had acted under duress, hoping to obtain protection for his wife and children in return for cooperation with the prosecutor, or fearful that they would come to harm if he did not cooperate. He may not have cared what he signed; Kambanda had a drink problem and he was plied with booze by the investigators while in Dodoma. Alternatively, Kambanda or the lawyer may have gambled with the plea bargain for rational reasons. Only a few weeks before the agreement was signed on 28 April 1998, Dražen Erdemović had pleaded guilty at the ICTY on 5 March 1998 to killing over a hundred people personally. He too had agreed to cooperate with the prosecutor. Erdemović was sentenced to five years in prison, an astonishingly light sentence given that he had himself committed mass murder. He has since appeared as a Prosecution witness in numerous ICTY cases, including the trial of Slobodan Milošević.18 If Kambanda knew about this sentence, he may have thought he could expect the same leniency. As the first defendant at the ICTR to be sentenced, he could not have known that the sentences handed down at Arusha were to be far harsher than those at The Hague.
It later transpired that, during the period of his detention in Dodoma, Kambanda had repeatedly asked to see his family and his own lawyer, the Belgian Johan Scheers (who had also been Habyarimana’s lawyer). He was given assurances on both counts. In fact, his contacts with Scheers were restricted to a phone conversation in the company of the Quebec police inspector who was de-briefing him. When he was finally brought to Arusha, a lawyer was assigned to him with whom he had never previously spoken, Inglis. He repeatedly asked about his family and Scheers and asked to be able to put his side of the story. According to his later version of events, Kambanda signed what Inglis asked him to sign on the basis that there would be later hearings in the presence of Scheers.
Following his life sentence, Kambanda formally requested that Johan Scheers represent him for his appeal. On 5 October this request was denied. ← 219 | 220 → The justification was that there had been a dispute between Scheers and the registrar (he had been Defence counsel for Akayesu and there had been an argument over fees). On 9 October Kambanda again demanded that Scheers represent him; this was again rejected and Kambanda was forced to pick a Dutch lawyer instead. The matter dragged on for another year until the new counsel, Tjarda Eduard van der Spoel, submitted further grounds for appeal on 24 November 1999. He alleged that the Trial Chamber had erred in law by not examining whether the guilty plea had been obtained under duress. Kambanda said he wanted the verdict overturned and a proper trial. The counsel added that Kambanda had been illegally detained at Dodoma, rather than at Arusha, and that he had not been represented by the lawyer of his choice.
It took another six months for the Appeals Chamber to come to Arusha from The Hague to hear Kambanda’s case. The hearing was held on 27 June 2000. Kambanda told the court that he had agreed to enter a guilty plea under duress. He deplored the fact that the authors of massacres against Hutus were going unpunished and that the tribunal refused to recognize the international nature of the Rwanda conflict, treating it entirely as an internal civil war. He said that he had signed the guilty plea only on the basis that it would lead to a trial with the lawyer he wanted, Scheers. ‘Maybe if I had had a lawyer worthy of the name, he would have advised me not to sign the documents. I never felt myself bound by those documents, they were documents produced by the prosecutor for the prosecutor.’ He repeated that he was ready to cooperate with the tribunal and the prosecutor ‘in order that the whole truth of the Rwandan affair be known’. He said, ‘Since the very beginning, I have said that I feel politically responsible and that I wanted to explain why there were so many deaths in Rwanda. I was prime minister during the genocide, whence my political responsibility, and it is that I am talking about.’ He said that there had been ‘millions of deaths on both sides in the Rwanda conflict’ but that he was not at the origin of what happened.
His pleas were in vain. Following counter-arguments by the prosecutor, Carla del Ponte, who said that she was satisfied by what Kambanda had said on appeal that the verdict and sentence should be upheld, the Appeals Chamber ruled on 19 October 2000 that the appeal should indeed be rejected. The Appeals Chamber made a very cursory review of whether the ‘confession’ had been made voluntarily and it found that it had been, without testing the evidence or even taking the defendant’s protests on board at all. So the landmark conviction of a former head of government for genocide by an international tribunal – a conviction which was itself used to obtain guilty verdicts in subsequent trials – was in fact made on ← 220 | 221 → a rather confused man who immediately rescinded his guilty plea, on the basis that it had been made under duress, out of concern for his family’s safety, and following bad advice from a lawyer who was an old friend of the prosecutor and whom he had not instructed.
As one commentator writes, the judges knew that Kambanda’s appeal came at a politically difficult time. The RPF government of Kigali was refusing to cooperate with the ICTR on another case (Barayagwiza), and there was felt to be popular resentment in Rwanda against the UN, of which the ICTR is a part, and whose soldiers had been in Rwanda during the genocide. Because Kambanda had been the head of the government during those events, his name and face had become a symbol of them. It was politically impossible for the sentence to be overturned. ‘In order to preserve and strengthen the ties between the ICTR and the government of Rwanda … the Court needed a sacrifice. Like Isaac, blood needed to be spilled in order to preserve what justice was left.’19
Three years later, Kambanda, by then a lifer doing time in Mali, sent a formal affidavit to the Defence team in the ‘Military II’ trial (where the defendants are the former army chief of staff, the gendarmerie chief of staff and two other junior officers) in which he recalled that the massacres started as soon as the plane was shot down and the president killed on 6 April 1994. By the time he was appointed prime minister (as a result of intervention by the UN representative and the American ambassador) the massacres had been going on for three days. ‘In virtue of the fact that the massacres had been going on for three days,’ he wrote,
it is impossible that the government I led could have planned them. Its members had nothing in common ideologically … all planning between the parties was impossible. At no point, during my time in office as prime minister, did I have any knowledge of the conception of any plan for these massacres, neither before nor after the assassination of President Habyarimana. I would have known about this since I had the Central Intelligence Service under my supervision. Without the assassination of President Habyarimana, interethnic massacres on this scale would definitely not have taken place. It is therefore essential to find those responsible for that attack and he or they must be held responsible for the consequences of their crime.20
Three years later, Kambanda was called as a witness in the mammoth trial of Théoneste Bagosora and he eventually got a chance to tell his story in court. But by then it was too late. He said this:
The events that took place in my country were so serious and so difficult to understand that as a former prime minister, I had the duty to explain them and ← 221 | 222 → politically assume that responsibility. That is what I recognize. I did not perpetrate any crimes. I did not send anybody to kill anybody. But I was an authority. I had a duty to protect all my people, all the segments of the population: Tutsis, Hutus, and Twas. I did not succeed in doing this, in spite of my efforts which are unfortunately not recognized, and that is why I have taken on this responsibility to explain what I saw that other people did not see or do not want to see.
I am not one of those who deny the genocide of the Tutsis. Obviously, I am not a legal expert to give you a definition of what is meant by genocide. But during the period between April and July 1994, I saw that people … were hunted down and killed for what they were, specifically, because they were Tutsis. There were men, women, children, young people, and old people who were killed. I am not a legal expert, but I believe that that is genocide.
Unfortunately, Mr President, during the same period and under the same circumstances, I saw that people from the Hutu ethnic group were massacred because they were Hutus. Men, women, elderly people, young people and children were killed. They were hunted down and killed. If the first was a genocide, then the second was too. So I believe there was a double genocide in Rwanda: genocide of the Hutus, and genocide of the Tutsis. Now, the question that arises is who perpetrated these genocides, and I have answers for that.
Regarding the genocide of the Hutus, this is easy to demonstrate. It’s much easier because one does not need a lot of information to know that the genocide of the Hutus was committed by the current president of Rwanda, his regime, his army, his militia. I have evidence which has been forwarded to you, Mr President.21