Let us now turn to another sentence of the 16 which six NGOs, acting as plaintiffs, have chosen in Paris to attack Charles Onana and his editor Damien Serieyx as genocide deniers.
The other trial articles of this series can be found here
Judicial notice for genocide, a breach of due process ?
Sentence 4: “When the prosecutor [of the International Criminal Tribunal for Rwanda, ICTR] found difficulty in providing evidence of the planning of genocide, he preferred to resort to the artifice of “judicial notice,” rather than putting evidence on the table. » (page 195 of Rwanda, la vérité sur l'opération Turquoise, 2019)
At the trial the plaintiffs’ lawyers brandished the adoption of judicial notice of the Tutsi genocide at the Arusha tribunal as clear-cut evidence of the intent and the pre-planning of a genocide against the Tutsis.
When judicial notice is taken of a fact, it means that the fact can no longer be disputed in court. Yet, judicial notice for genocide as a valid and legitimate legal instrument is not agreed upon by everyone.
This controversial decision, taken in 2006 at the International Criminal Tribunal for Rwanda (ICTR), was often also contested within the very ICTR, with judges refusing to adopt it. Onana cites a few such examples and their legal reasoning behind the refusal.
Catholic Institute of the Vendée lecturer in political science, political philosophy and history and director of the Forum for Democracy International, John Laughland’s in his 2016 book, A History of Political Trials: From Charles I to Charles Taylor, addresses this issue in the chapter Jean Kambanda, convicted without trial : Laughland calls the adoption of judicial notice for genocide a structural presumption of guilt: “ The decision smacked of desperation”, he writes, quoting the ICTR 2006 press release: “This is one of the most significant rulings of the Tribunal, given the consequences in terms of putting the occurrence of the genocide beyond legal dispute. It can be recalled that until now the OTP (Office of the Prosecutor) has had to in each case lead evidence and prove the occurrence of the genocide. This will no longer be necessary. In the view of the OTP the ruling should now silence the ‘rejectionist’ camp which has been disputing the occurrence of genocide. By relieving the OTP of a substantial burden of proof the ruling has the potential to shorten the cases as each will essentially focus on the personal involvement of the accused person in genocide.” (the emphasis is mine)
Laughland comes to the same conclusion as Onana: “Perhaps it was an indication that the Prosecution case was precisely having difficulty proving its original claims. “[i]
B.C.L./LL.B. Faculty of Law and Junior Fellow at the Centre for Human Rights and Legal Pluralism, McGill University Kirk G. Shannon in a 2006 article Passing the Poisoned Chalice: Judicial Notice of Genocide by the ICTR, [ii]for the Revue Québécoise de droit international, even sees judicial notice, when applied to genocide, as a breach of due process. Shannon argues : “ Traditionally, facts that go to legal conclusions or to the elements of the crime with which the accused is charged have been deemed prohibited subjects for this efficiency-producing mechanism. Because a finding of genocide is a legal conclusion, the author argues that judicial notice of genocide violates the procedural rights of the accused by barring defense submissions on the definition of this legal conclusion.“
Adding: “However, whereas “genocide” is an apt characterization in the extra-legal context, the use of the term in a legal setting has more grave implications on the liberty of the accused. Rather than a mere descriptor of a factual situation, genocide is a crime under international law and is therefore the subject of a legal conclusion. Thus, whereas the non-legal community can describe the Rwanda atrocities as part of a genocide, in the legal realm a party asserting the existence of such a characterization should have to satisfy the court that the requisite criteria for the crime have been met.”
Onana in 2005 wrote a 480-page investigations on the Arusha-based ICTR, Les secrets de la justice international, uncovering grave short comings of the institution; he had also at the time spoken to former ICTR Prosecutor Carla Del Ponte, who told him that she had been forced to leave her post by former United States Ambassador at Large for War Crimes Issues under George W Bush Pierre-Rich Prosper. At the time Prosper was assistant trial attorney, employed at the ICTR since May 1996 with the office of the prosecutor. He was also lead trial attorney and prosecuted Prosecutor vs. Jean-Paul Akayesu, the first-ever case of genocide under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Del Ponte underscored the political pressure coming from the US via Pierre-Rich Prosper due to her intentions to prosecute RPF crimes and also collaborate with the Bruguière's inquiry in France (investigation of RPF members for the crime of the assassination of two African Presidents on 6 April 1994). Carla Del Ponte would later detail this political intrusion in her memoires.
Arusha witness
Congolese lawyer and former President of the lawyers' association of the International Criminal Tribunal for Rwanda, Hamuli Rety, came to testify for Onana at trial and gave some insight into the Arusha Trial proceedings.
Lawyer Rety corroborated at trial the dismissal of ICTR Prosecutor Carla Del Ponte on political grounds.
Rety also corroborated that the Tribunal did have difficulty in providing solid evidence that the genocide had been planned.
He spoke of the overall limits of the ICTR. The defense teams often had little means compared to the Prosecutor’s office; there were many testimonies who came to Arusha to give false testimonies, often these witnesses were prisoners in Rwanda; people were arrested who were innocent.
Rety recalls that since Onana was investigating for his upcoming 2005 book Les secretes de la justice international he was admired at Arusha for digging up archival documents and interviewing witnesses. Rety remembers : “All the defendants wanted Onana as an expert witness, but he refused. Onana did however put me in contact with a descendant of the royal family, Antoine Nyetera, whose family was killed during the genocide.” Rety recalls Nyetera’s testimony given at Arusha: “I am of Tutsi royal lineage and I will always defend the Batutsi whatever the situation, but I would like the world to know, to realize that there were lies, I want the international community to differentiate between the Tutsis and the RPF. To say that the barriers were erected for killing Tutsis is a lie. My home was 40 meters from one, and a second one was at 400 meters from me. The barriers were set up to monitor people coming into the neighbourhood, who were not from the sector, from our neighborhood, because the RPF was infiltrating the area.” Nyetera claims to have posted himself in one of these barriers to defend and monitor his neighborhood. He underscored that barriers near his house were intended for security against RPF infiltrators and not to kill Tutsis. The proof is that he, recognizable as a Tutsi by his morphology, because he is tall, took his turn on guard at these barriers, without having had any problems. “
This detail shows the complexity of what happened and the need to remain open to nuance when recording history: in this case one must not take for granted that all road blocks set up in Rwanda after the 6 April decapitation of the country’s government, were automatically areas were criminal massacres took place.
Réty briefly mentioned the case of Jean Kambanda, Prime Minister during the interim government set upon the 9th of April 1994. Anyone with some background knowledge on this case has to admit that the confession was attained via a travesty of justice, which Rety corroborated in Paris at court.
“Kambanda appealed his confession immediately and admitted that he had pled guilty under duress,” Rety recalls.
Accounts on this trial abound. For example, journalist Thierry Cruvellier, who closely followed the Arusha trials, author of the 2006 book Court of remorse, writes on this case: “ For nine long months from August 1997 to April 1998 Kambanda spent most of his time at a secret location in Dodoma 300 miles south of Arusha."
He was interrogated for hours on end by dubious Canadian investigators. In exchange for collaborating he wanted a guarantee that his family would he protected. He was also not allowed the choice of his defense attorney. And eventually “yielded to the decision to dismiss his Belgian lawyer." The lawyer eventually forced on him was Michael Inglis, a close friend of the deputy prosecutor Bernard Muna.
Muna subsequently withheld Jean Kambanda’s written speech from the Judges. The prosecution admitted only two years later that they had not forwarded the docment to the judges, ”because it contradicted the confession and made it unequivocal.”
Cruvellier adds: "In the days after Kambanda was sentenced to life in prison in 1998, the few members of the prosecution team who had worked directly on the case readily admitted their discomfort with the way the case had been handeled. Off-the record conversations revealed a mixture of embarrassment, shame, anger and sarcasm, not to mention deep, moral vexation after reading the documents that Kambanda had written while in detention. “ [iii]
Canadian Professor of human rights at the Univerity of Québec in (UQAM) Montreal, Alain Tremblay, who worked as a defense lawyer at the ICTR speaks of an
“ aberration": "the treatment that was reserved for Jean Kambanda did not respect elementary rules of law.” [iv]
Rety also deplored the conditions of the Hutus who were acquitted or who have finished their prison sentence. He spoke of the plight of the many acquitted who have never been rehabilitated and are still considered as génocidaires by NGOs such as Ibuka, one of the plaintiffs in the courtroom. Some were acquitted after 10-12 years in prison and judicial proceedings. Perhaps the most obvious erosion of defendant’s rights was the length of the trials.
In Rety's words: ""Many people tried by the ICTR have been acquitted. And many do not have a host country. France notably refuses to grant them protection on the pretext that they had been accused of genocide according to the Geneva Convention. To this day, these people are stuck in Arusha where they were tried and acquitted. Yet the French government refuses to grant them asylum even when their families are based in France. For what reason? They are suspected of being considered génocidaires even if the ICTR exonerated them. Here is what France says to justify its decision: “We are embarrassed to take them because it would put us at odds with the Rwandan government." On the basis of a list, the list of the Rwandan government, a list that we call the génocidaires list, people are regularly accused. Today these defendants still live in safe houses. And that adds up to more than 20 years that some have been in Arusha. And some of these people appear in the famous list of the RPF, still today as genocide planners.”
“They all became like Law PhD holders, many spending more than two decades in prison,” Rety told a group of journalists during a trial break in the hall when asked about the acquitted Arusha cases.
Rety also explained that the Appeals Chamber endorsed taking judicial notice of numerous legal characterizations: not only that widespread and systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time, but also the fact that there was an armed conflict of a non-international character in Rwanda between January 1, 1994 and July 17, 1994. In his words : “When we wanted to invite experts that could enlighten the jury on the international context of the war, the geopolitical background, these witnesses were blocked from coming to Arusha to testify.”
Lawyer Réty spoke of the whistleblower role that Onana has had for quite some time, and his decades-long denunciation of the genocide in eastern Congo against both the Hutu refugee population, as well as Congolese civilians since 1996. In case of a French condemnation, he says the case should be taken to the EU level which has legal mechanisms that protect whistleblowers, those who alert on grave human rights crimes. In Rety’s words: “He should be protected for his quest in seeking historical truths and also altering on the mass murders committed by the Kagame regime in eastern Congo, a fact which today is becoming more and more undeniable. He should be free to denounce Kagame’s crimes without being afraid of reprisals.”
Rety has been lobbying for the setting up of a tribunal for the human rights crimes committed in eastern Congo since 1996. He sees Onana’s role as a whistleblower in so far as he revealed the methods of war, conquest and regime change. Just as in Rwanda, the almost 30-years’ Congolese wars' international character is obfuscated.”
Rety gives some more details on the ICTR proceedings: "It was very difficult to defend one’s clients at the ICTR, as there was too much interference from the Unites States, as well as the United Nations. Since the beginning of the legal undertaking, we tried to prove that after the RPF attacked for the first time in October 1990, and they were defeated, the Bill Clinton administration orgainized military seminars, where also Kagame benefited. But when I had invited an expert that was to come at trial and explain the details of this training provided, the various courses it covered, amongst which training in the use of the same missile that shot down the airplane on 6 April 1994 which killed two Presidents, the witness was denied. This US investigative journalist was going to come and testify but it was denied. The justification given was that the Court was dealing with a national conflict and not an international conflict. Another journalist Wayne Madson (investigative journalist in Washington DC specialized in national security and intelligence issues author of 1999 book Genocide and Covert Operations in Africa, 1993-1999 N/A) who wanted to address in court the involvement and role of Uganda or the Unites States of America, and this would have corroborated the need to legally speak of an international conflict, was also denied the possibility to testify at court.
Arusha seemed to be judicial notice on steroids. "Judicial notice was used in every trial”, Rety remembers, “for the Military I trial the Prosecutor came up with a list of over 45 facts he wanted to admit as judicial notice. They were political trials, a lot of interference came from the American government. The US ambassador for war crimes would come and hold meetings with the Judges. Carla del Ponte was discarded on political grounds. Our role as lawyers was to work within these terrible restraints and legally fight for the rights of our clients.”
French law does not address criticism of judicial procedures
One of the plaintiffs’ testimonies, lecturer in public law at the University of Reims Champagne-Ardenne Thomas Hochmann, who has worked extensively on freedom of expression, and in particular on genocide denial and the Holocaust, on which he devoted his 2013 doctoral thesis Le négationnisme face aux limites de la liberté d’expression, (Negationism, facing the limits of freedom of expression), argued that Onana was a genocide denier because he also spoke of other victims, beyond the Tutsi, who succumbed during the 100 day tragedy. He also states that “ since the concerted plan is an element of the genocide, denying it amounts to denying the genocide.”
Yet Hochmann also underscored that the French law punishes only if the remarks made by an alleged genocide denier can actually cause harm: “This is an important question since, precisely, the Constitution only allows freedom of expression to be restricted for dangerous speeches, those which are considered to risk harming public order or the rights of third parties.” Hochmann continued: “Negationist discourse is not a simple opinion. It is dangerous speech. But it seems risky to me to consider, in such a general and abstract way, that all expressions are sufficiently prejudicial. Considering, for example, that the Srebrenica massacre is a crime against humanity rather than a genocide, as the ICTY ruled, is this necessarily dangerous speech that deserves to be condemned? “
Lawyer for the plaintiffs’ Ibuka-France Rachel Lindon asked Thomas Hochman to specify whether the ICTR has handed down convictions for a concerted plan to commit genocide. Hochmann answered that in some cases people at the ICTR were condemned also for intent to commit genocide and at other times they were acquitted, but before this he added:
“ One point seems essential to me: the exact content of the ICTR decisions is not the issue of this trial. Article 24 bis simply requires that the genocide has been condemned by a French or international court. It does not refer to the exact content of this or that judgment. It does not prohibit contesting the precise content of a court decision. The same goes for the Shoah: if the first paragraph of article 24 bis mentions the status of the Nuremberg tribunal, it is not intended to prohibit contesting decisions pronounced by this court. (…). It is therefore important to understand that the law against Holocaust denial does not “stick” to the content of the court decisions relating to the crimes targeted.” (emphasis mine)
Thus, according to expert on genocide denial law Hochmann, the new 2017 French law does not prohibit a writer to criticize specific legal proceedings: thus, the sentence here under review, which is a comment on the use of judicial notice for genocide at Arusha, also in light of Onana’s harrowing 2005 investigation into the legal proceedings at the ICTR and the Rety testimony on the grave shorcomings of the ICTR, should not be considered in any way as a form of genocide denial, also as such criticism is not covered legally by this specific press law.
Recently released document confirms brainless genocide
PhD in African history from the University of Paris Florent Piton, one of the six plaintiff’s testimonies, who has written one book on the Rwandan genocide, at trial spoke of a December 1991 meeting as evidence that the genocide had been planned well in advance by the Habyarimana government.
Ironically the document Piton mentioned at trial was only published in its entirety this month, in November 2024, 33 years later. Journalist Thierry Cruvellier writes in Justice Info publishes the report supposedly behind the genocide plot in Rwanda.:
“As part of its work on the ICTR trials, Justice Info obtained a copy of this report which was believed to have disappeared.(…) On the occasion of the 30th anniversary of the creation of the ICTR, on November 8, 1994, we today place a copy in the public domain. Everyone will now be able to carry out a more complete and contextualized analysis of this document which was to forge, in the eyes of the ICTR prosecutor, the story of the planning of the genocide of the Tutsis. Before the judges told him it wasn't that simple.”
Cruvellier adds: “In November 1994, prosecutor Chile Eboe-Osuji defined the 1991 Commission report as the birth certificate of the genocidal project. Before him, the judges of the first ICTR trial, against a former mayor, Jean-Paul Akayesu, referred to the extract to demonstrate genocidal intent.”
Already in Court of remorse Cruvellier had underscored the little probative value of the 1991 meeting document for one key aspect: "The judges were also aware, in 2008, that three or four of the members of this commission were among the few reputed senior officers of the FAR who had opposed the genocide in 1994. Even though no testimony had ever been taken from them in a specific and public manner by the ICTR prosecutor's office,” writes Cruvellier.
Cruvellier goes into extensive detail in his book Court of Remorse on most of the members of that 1991 meeting.[v] Should Piton not have taken these important facts into consideration at trial?
He highlights: “For the prosecutor, the case was clear: this extract was "a step towards a criminal conspiracy". The judges, on the other hand, dismissed such an interpretation. They were more concerned with the context in which the events occurred. First, they noted that defining the enemy is common practice in the military, in Rwanda and elsewhere. Consequently, the commission "was not in itself unusual or illegitimate, in particular in view of the fact that there had been hostilities on Rwandan territory since the RPF invasion on 1 October 1990." (...) Read in context, the Chamber does not agree with the Prosecution that the definition implies that all Tutsis are extremists wanting to regain power," wrote the judges. The content may be disturbing therefore, but it does not demonstrate criminal intent."
Théoneste Bagosora, preset at the 1991 meeting, was considered the master-mind behind the planning of the genocide, Cruvellier writes about the case: “On December 14, 2011, the Appeals Chamber of the ICTR reduced Colonel Bagosora’s factual responsibility in the genocide to a minimum, and his life sentence to 35 years. After seventeen years of investigations and trials, the ICTR ends up with no mastermind behind the genocide. After hearing 242 witnesses, admitting some 1,600 exhibits, producing 30,000 pages of transcripts and receiving 4,500 pages of closing arguments by the parties, the trial judges wrote a decision that profoundly questioned the genocide in Rwanda as a carefully orchestrated crime. The 1992 reported warning by Bagosora that he was going to “prepare the apocalypse” came from two highly suspicious witnesses who contradicted themselves: Bagosora and others had played a role in the creation, arming and training of civil militias, but the judges could not conclude that “these efforts were directed at killing Tutsi civilians with the intention to commit genocide”; the organization of civil defense was insufficient to claim conspiracy; the preparation of lists targeting Tutsis and members of the political opposition did “not show that the purpose of the lists was to identify Tutsis, as such, and to eliminate them”; there was “considerable evidence” of death-squad activity in Rwanda before April 1994 and several sources say that Bagosora was a member of them, yet the evidence was indirect, second-hand, proved nothing in legal terms, and did “not mean that [they were] preparing a genocide.” (…) “There was no credible and reliable proof of Bagosora’s direct participation, the trial judges wrote. “
“The post of chief of staff was the most senior one after that of the Minister in the Rwandan Ministry of Defense,” said the judges. “He would replace the Minister in his absence. This occurred in April 1994 when Augustin Bizimana, the Minister of Defense, was on official mission in Cameroon.” During the three days in which the minister was away, from 6-9 April, Bagosora exercised his authority. After 9 April, the minister of defense returned to the country and all the crimes allegedly committed by Bagosora after April 9 fell away, without exception. But the colonel had nevertheless been found guilty. “
Bagosora was acquitted of the crime of intent to commit a genocide, prompting Cruvellier to call the Rwandan genocide a brainless genocide.[vi] Writing on this trial he adds:” it would seem almost impossible to understand what’s the narrative of the genocide that has come out of the most important trial at the ICTR. “
This recent archival release is another reason why the French 2017 Tutsi genocide denial press law, which places a lid on what can and can’t be said on the Rwandan tragedy, by handing out prison sentences and fines, is damaging for historical research. In this case evidence for the pre-planning of the genocide is shattered by the release of the entire archival document: upon reading it the enemy is clearly outlined as those who took up arms against the country, and not the Tutsi population per se.
Hochmann edited an in-depth study by Ludovic Hennebel, Genocide Denials and the Law, on the various legal issues it raises, presenting arguments both in favor of and in opposition to prohibition of this expression.
One wonders what Hochmann thinks of the purpose of the new 2017 French law, in light of the fact that one of the central archival documents was only released today, 30 years later, and reveals zero probative value, thus shattering one of the pillars of evidence used at Arusha for proving intent to commit genocide on the part of the Rwandan interim government. Should history acknowledge it? Should discussing its consequences be considered genocide denial? and will one be able to discuss it freely in France today?
Notes:
[i] John Laughland, A History of Political Trials: From Charles I to Charles Taylor, Peter Lang Oxford, UK, 2008. p 213
[ii] Kirk G. Shannon Passing the Poisoned Chalice: Judicial Notice of Genocide by the ICTR, for the Revue Québécoise de droit international, 2006.
[iii] Charles Onana, Les secrets de la justice international, éditions Duboiris, 2005 et Thierry Cruvellier, Court of Remorse originally published in 2006 as Le tribunal des vaincus: un Nuremberg pour le Rwanda? Calmann-Levy. p 38-48
[iv] Patrick Mbeko, Malheur aux vaincus 1994-2024, éditions Duboiris, 2024. p 337
[v] Thierry Cruvellier, Court of Remorse originally published in 2006 as Le tribunal des vaincus: un Nuremberg pour le Rwanda? Calmann-Levy.
.[vi] Thierry Cruvellier, De Arusha à Arusha, 2011. https://www.filigranes.com/en/livre/darusha-a-arusha-from-arusha-to-arusha/
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