By Tom Ndahiro

In modern democracies, the judiciary is seen as indispensable to rule of law and protection of rights. The Bangalore Principles of Judicial Conduct, for example, draw attention to “the importance of a competent, independent and impartial judiciary to the protection of human rights.” The Principles, drafted by a UN group to set judicial standards, maintain that the fulfilment of all other rights hinges on the proper administration of justice.

Thus, much is made of judges’ responsibility to maintain moral authority and integrity at all times, especially in their official duties. A judiciary of integrity, the American Model Rules of Judicial Conduct explain, “is one in which judges are known for their probity, fairness, honesty, uprightness, and soundness of character.” Most judges in modern democracies meet these standards, and as a result judgments and other legal documents are treated with a high degree of deference.

Given the assumption of credibility attached to their words, judges should be wary of publishing legal documents containing information that might be harmful to groups or individuals. In issuing his 2008 indictment of 40 Rwandan officials, Judge D. Fernando Andreu Merelles of Spain fell short of his responsibility.

The indictment, which alleges that the leaders of the Rwandan Patriotic Front (RPF) attempted to eliminate the Hutu ethnic group and to take control of Rwanda and the Democratic Republic of the Congo (then Zaire), is flawed in many ways. It lacks essential context and background on Rwandan history and the course of events in the 1990s. The overwhelming and unavoidable evidence of the past provides a much fuller account of the events and realities that are woefully neglected in this document.

Several more specific flaws have been discussed in articles and blogs; Jean-Damascène Bizimana, for example, pointed out in his article Critical Analysis of the Investigations by Judges Bruguière and Merelles that the indictment contained mistakes of fact, relied on testimony lifted directly from the Internet, and was issued after a shorter-than-average investigation carried out from afar.

Problems with sensitive topics

Merelles’ carelessness is especially serious, however, considering the delicate subject matter of the document: genocide. In other areas of the law, genocide has long been treated as calling for extraordinary measures and exceptions to settled rules.

Most significantly, it is generally agreed that state sovereignty, the backbone of international law, falls to the wayside in situations of genocide. Again and again, UN actors proclaim that genocide may be halted by force — generally prohibited in international law. That such an exception is carved out for genocide illustrates the special status of the crime.

Particularly when dealing with sensitive topics, a judge should use only the most reliable evidence. Even putting aside its special status in other areas of the law, genocide is an especially good candidate for increased diligence in evidence-gathering. This is because is perpetrated through the spreading of false information.

In a 1996 briefing paper outlining the eight stages of genocide presented to the United States Department of State by Gregory Stanton, president of Genocide Watch, the fifth stage of genocide was described as the broadcast of polarizing propaganda.

As Bizimana explains, much of Merelles’ indictment relies on out-of-court statements by known genocide deniers, published on the Internet. In many countries such evidence would be considered hearsay.

While Spanish rules of evidence do not forbid hearsay or indirect evidence (defined as an out of court statement offered to prove the truth of what is asserted) it is widely acknowledged that such evidence is inherently unreliable.

Hearsay is forbidden in many countries, including the United States, Canada, England, Hong Kong, New Zealand, Sri Lanka, and Malaysia, because without the presence of the person who supposedly uttered a statement the court cannot get a sense of whether he or she is credible. The witness’ demeanour cannot be observed and he or she cannot be cross-examined.

Most worrisome is Merelles’ “facts” section. Although the understanding of what constitutes a “fact” likely differs from system to system it is generally understood that facts are uncontroverted.

Broadly, according to the Oxford Dictionary, legal facts are “the truth about events as opposed to interpretation”. Merelles’ facts section, on the other hand, contains inflammatory statements, many of which are not only controversial but blatantly untrue, and a reproduction of genocidaires’ discourse of hate.

The author’s approach to presenting supposedly accepted “facts” leaves much to be desired. He states in his first fact that from October 1990, “a group of political-military structure, heavily armed and organized, launched a series of criminal activities in the Rwanda territory from Uganda.”

This suggests that a reactionary foreign group launched a guerrilla invasion into the country. Merelles does not concede in this introductory fact that the people trying to come into Rwanda had been forced out of their own country by the increasingly maligned regime in power.

Instead, he shifts culpability onto these seemingly insurgent outlaw forces, painting them as wickedly centring their activities, around organized terrorist attacks “aimed at elimination of civilians.” This same group is said to have gone on to carry out its “reign of terror… dedicated to abduction, torture, and raping of women and girls.”

Validity aside, such language is inherently dehumanizing and simplistic, conglomerating all outsiders into this malignant force set out to do evil. Considering the inherent untruths to the claim, including that the driving aim of the group was to “eliminate the majority ethnic group” (hitherto undefined, nor explained as to why this faction would be outside this majority), one easily see an attempt to pass blame for the genocide to another group, essentially arguing that the genocide was carried out in self-defence.

This “fact” starts the indictment document off in a dangerously short-sighted and malicious direction.

Much of Merelles’ language is strikingly similar to other sources written by genocide perpetrators or deniers, including a propaganda pamphlet put out by genocidaire ideologue Leon Mugesera ahead of the 1994 genocide with the goal of inciting hatred of the Tutsi, and a Rwandan Armed Forces (RAF) report to the International Tribunal for Rwanda written by members of a group involved the genocide of the Tutsis and submitted for the defence.

Mugesera’s 1991 pamphlet, “The Whole Truth on the October 1990 war imposed upon Rwanda by the Aggressors from Uganda Armed Forces,” an early example of Hutu power propaganda, forms the basis for much of Merelles’ purported facts. Mugesera deems the population outside of Rwanda not to be Rwandan refugees, but an insurgent Ugandan military force.

Mugesera’s pamphlet refers on page 12 to RPF’s plans to forcibly restore their monarchy, to exterminate Hutus, and to engage in environmental degradation for their benefit. Similarly, on the second page of Merelles’ facts section he claims that RPF has three goals: to “eliminate the largest number of ethnic Hutus,” to “secure power by force,” and to “exploit Zaire’s rich natural resources.”

Merelles, like Mugesera, closed his eyes to the numerous instances since 1959 when mass exoduses of Rwandese civilians have taken place, instead focusing on drumming up horrific and unsavoury claims about the RPF force that started to gain some victories in 1990. The claims that they enlisted infants, slaughtered civilians and raped and abducted women and minors served only to demonize the group. The pamphlet provides no evidence for this, bar three ambiguous photos, instead levelling damning claims and “true” statements that leave no room for personal, independent interpretation or assessment. This is not an historical source, but rather an object of propaganda.

The former Rwanda Armed Forces report of late 1995, meanwhile, refers on page 20 to the RPF’s “long-standing craving for absolute power” and their actions to carry out the “annihilation of the Hutu ethnic group.”

Mirroring this language, Merelles’ indictment repeatedly refers to RPF’s carefully planned power grab, calling it a “final assault plan to seize power by force” or simply a “usurping” of power. He also makes dozens of references to the “systematic elimination of ethnic Hutus.”

Additionally, Merelles ignores the question as to why the Presidential Guard and RGF did not comply with an international/independent investigation into the presidential airplane crash in April 1994.

This point is especially relevant considering these forces were so quick to point a finger to others for causing the crash, using this as an excuse for the beginnings of the genocide campaign that followed.

If they were so certain about the cause of the crash, why not have that be confirmed by an outside, neutral group?

The RPF leaders were ready to allow investigation (See Dallaire’s Shake Hands with the Devil), and would happily welcome an independent conclusion into the plane crash debate.

A closer look at this judge’s testimonies you realise just how hastily his evidence was gathered. The witness codenamed TAP-007 is Christophe Hakizabera, who was in genocidaires’ Army for the Liberation of Rwanda (ALIR) before becoming a spokesperson for the Democratic Liberation Forces of Rwanda (FDLR).

Most of what Judge Merelles calls this genocide ideologue’s “testimony” is in the August 10, 1999, document entitled “The UN in the grips of Rwandese Patriotic Front (RPF)”. It is available on the internet (See: http://www.inshuti.org/hakizaa.htm) and has been a quoted in The Daily Catholic newspaper (See: http://www.dailycatholic.org/issue/99Nov/nov23dc2.htm).

The witness coded TAP-006 is actually a man called Sixbert Musangamfura. What Merelles alleges to be his testimony is copied and pasted from a December 8, 1995, document entitled: “J’accuse le FPR de crimes de génocide des populations d’ethnie hutu, de purification ethnique et appelle à une enquête internationale urgente”. It is available on the website of the friends of genocidaires, http://www.inshuti.org/musanga.htm.

Jurisdictional issues

The judge based his power to issue the indictment on universal jurisdiction. Universal jurisdiction is the concept that allows for prosecutions of certain serious crimes under international law in national courts, absent traditional jurisdictional links to the crimes, the victims, or the perpetrators.

However, according to a 2008 ruling by Spain’s Constitutional Tribunal and to Article 23(2)(c) of the Organic Law on the Judiciary, respectively, Spanish courts may not exercise universal jurisdiction if the state where the crime was committed is effectively investigating the case or if a foreign court has tried one of the suspects for the same crime arising from the same circumstances.

Furthermore, although Article 8 of the ICTR Statute grants national courts concurrent jurisdiction over matters under ICTR’s jurisdiction, the ICTR has primacy over national courts. As such, it may request that national courts defer to its competence, at any and all stages of the case.

Merelles did not explore or even consider these limitations on universal jurisdiction in the indictment. Determining whether his or her tribunal properly has jurisdiction over a matter is the very first task a judge must complete. Otherwise, judges would issue rulings over cases they have no business commenting on.

Needless opinions waste judicial resources and a judge’s own time. Perhaps more damaging in sensitive cases such as this one, they can also cause a confusing accumulation of seemingly legitimate documents, diluting the force of properly issued legal opinions.

In reality, the ICTR prosecution has been investigating crimes allegedly committed by RPF officials. And one of the suspects listed in the indictment, Wilson Gumisiriza, has been tried and found not guilty in Military Court in Kigali. The ICTR Prosecutor investigated his case and decided that the Rwandan judicial system was impartial and competent to try these crimes.

Fuelling genocide denial

The judge’s apparent disregard for the role his document could play in genocide itself is unsettling. Stanton’s U.S. State Department briefing paper identified the last stage of genocide as denial. By putting into an ostensibly credible legal document the claims of genocide deniers, Merelles has given the genocidaires a powerful tool in the final stage of their crime.

Genocidaires and genocide deniers have wasted no time putting that tool to use. It has been cited again and again by a select circle of known deniers. For example, it was used to support an article by Peter Erlinder’s International Humanitarian Law Institute accusing the RPF of genocide and Kagame of recently issuing death threats against foreigners.

It was also mentioned in a piece by Eugene Ndahayo, Chairman of the Support Committee for FDU-Inkingi, arguing that Kagame’s presence in the EU tarnishes its image. Both Erlinder and Ndahayo have a reputation for genocide denial.

Deniers of the Rwandan genocide rely on the ignorance of their readership to spread their harmful message. When the circle of sources contains a legal document, ignorance becomes a larger issue. The public is taught to consume Internet resources with a healthy degree of skepticism; this is not so of legal documents.

International ignorance is especially acute regarding African affairs. Western media coverage of events in Africa is often vague. This poor understanding of news from Africa is compounded by a general lack of knowledge about the continent, leading to confusion among the citizens of other regions.

A New York Times article written after the Genocide, entitled An Ignorance of Africa As Vast as the Continent, contended that “Africa remains a projection screen for both the most blinkered prejudices and the wildest fantasies.”

It explained that many Americans think of “real Africa” as either “a blurred concatenation of game parks, starving infants and genocidal warfare” or “a Disney-fied cradle of civilization.”

Thus, whereas few people who come across Holocaust denial literature will seriously question the attempted extermination of the Jews during World War II, they very well might wonder if they’ve somehow gotten mixed up about the Rwandan genocide.

Merelles is not the first judge to bolster the case of genocide deniers. Several German judges, for example, have over the years issued opinions that seem to aid deniers of the Holocaust.

Robert A. Kahn in his 2004 book Holocaust Denial and the Law: A Comparative Study outlines these opinions, including Nieland, by Judge Nicholas Budde, Derkert, by Judges Ranier Orlet and Wolfgang Muller, and Auschwitz-Myth by Judge Albrech Kob, Each case prompted outrage and condemnation in German society and led to what Kahn called a “post-scandal restorative act,” such as suspension or even ouster of judges who seem to be soft on genocide denial.

Such acts, Kahn explains, serve to reassure the public and remind judges of “the burden that comes with [their] power.”

Hateful messages in the indictment confused many unsuspecting individuals on the very serious issue of genocide. There are people who respected his text because they assumed he is what he should be.  That level of acceptability is destructive. It not only reopens survivors’ wounds but also potentially shocks them into silence.

Merelles promotes the idea that the victims and people who fought the genocidaires to stop the continuation of the crime are the greatest criminals, were so wicked that they made-up this horrendous narrative to gain the world support, and that they merit punishment. This puts him in the category of genocide deniers. This indictment is a declaration in support of genocidaires, through the re-writing of history in a way that portrays the victim-villain positions up-side down.

The indictment is a repository of spiteful ideas about the Tutsi, uttered mainly by known genocide ideologues like Marie-Beatrice Umutesi (whose name appears 29 times in the document) and Jean-Marie Vianney Ndagijimana. Others include friends of genocidaires and genocide deniers like Cynthia Ann McKinney, Wayne Madsen and Keith Harmon Snow.

In analyzing this indictment, it is substantially clear that either for his own ideological motives or gross ignorance, Judge Merelles indefatigably and consciously manipulated and misrepresented historical facts. This enabled him to portray genocidaires in an intolerably positive way, hiding their clear responsibility for the planning and commission of the genocide against the Tutsi in Rwanda.

The indictment is an exemplary form of hate speech since it deliberately promotes enmity against a particular group. Like the genocidaires’ bigotry, spewed daily on the internet, the indictment was designed to justify genocide. Through a legal text, under the guise of pursuit of justice, this Spanish Judge promotes hatred.

Because Merelles issued his indictment far from the nucleus of the damage it could cause, he managed to avoid feeling the weight of this burden. Considering the lack of proximity of the affected public, one understands the Rwandans’ frustration. Rwandan society does not have the option of condemning the indictment and demanding punishment for the judge in the same way as it would if this were to happen in Rwanda. Through distance, Merelles has robbed Rwandans of recourse.

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