Internews
Arusha, Tanzania
04.03.01
"You know what Voltaire said", says reknowned American legal figure Ramsey Clark, "'History is fiction agreed upon'".
"I hate that", continues Clark. "It means that there is no truth". Clark touches on Voltaire, the malleability of truth and the wretched fabrications of history, while in the midst of a thoughtful but deeply critical analysis of the current government of Rwanda and the UN's International Criminal Tribunal for Rwanda (ICTR).
He speaks with Internews in Arusha, Tanzania, the seat of the Rwanda Tribunal, on the eve of his departure for Rwanda. It will be his first trip there since long before the 1994 genocide and the 1990's episode of the civil war that led into it.
Clark is at the ICTR to represent Elizaphan Ntakirutimana, an elderly Rwandan pastor about to face trial for genocide and crimes against humanity at the ICTR He has represented Ntakirutimana for the last five years, in American state and federal courts and now at the ICTR.
On Monday Clark told the tribunal judges that the court itself is not independent, that it threatens detainees' fundamental rights and should not have been created by the UN Security Council under article VII of the UN Charter, which he calls "a war powers act". He made these arguments in support of a motion to expand the scope of interpretation of the ICTR's rules about discovery, the process during which two parties to the litigation exchange information, in order for his client to have a fair trial.
Speaking on behalf of Ntakirutimana, Clark explained to the court that the defense is not able to adequately obtain witness statements, which form the basis for the cases at the ICTR. Without access to witnesses or their statements, he can neither counter the information presented by the prosecutor, nor present an alternate version of events in Bisesero region, Rwanda, concerning the role and whereabouts of his client.
In turn, he has asked the tribunal prosecutor make a wide range of witness statements and materials available to the defense.
Clark argues that the continuing political polarization among Rwandans, and the role of the current government in propagating this, make it impossible for defense lawyers to safely bring witnesses to testify, or even to interview them. Clark tells Internews "the possibility of being able to get witness testimony is very low, and the risks for people who are even seen with you is very high". Though the motion and its justification are made according to the parameters of a fair defense, Clark's legal arguments barely veil his political take on the tribunal. That is, he sees it as an essentially political institution - and one that continues to support the longstanding history of discrimination in Rwanda. "Ad hoc tribunals inescapably risk being political," he says. "The decision to include or to exclude is a political one".
The tribunal and the Rwandan government's continued emphasis on its survivor legacy combine to result in discrimination against Rwandan Hutu, according to Clark. He makes this clear in our conversation and in the legal brief which accompanies his motion.
He says "when we take [a charge] as inflammatory and degrading as genocide, it is a powerful tool".
Far from denying the horrors of 1994, he sees the current one- sided prosecution as a manipulation of history, a rewriting of history using courts to serve a particular political agenda. That agenda serves the UN, and whether by accident or design, the current Rwandan government. And underlying that government's will, and UN politics, Clark sees the American government's foreign policy agenda as a primary driver.
During our conversation Clark elaborates on the political and legal allegations in his motion and oral arguments, which highlight many of the legal issues that run through the other cases he has worked on recently, and which he sees recurring in US foreign policy.
Considering Iraq, Clark talks about what he perceives as genocide against the Iraqi people through sanctions initiated and enforced by the US. He has lobbied the UN General Assembly and Security Council, visited Iraq and Turkey many times, and led an International Inquiry into war crimes committed in Iraq, to try to end what he sees as massive, needless suffering on the part of innocent Iraqis, in particular, women, children, and elderly civilians.
The situation of Iraqi civilians is analogous to that of the Rwandan Hutu for Clark, in that they are being made to pay with lives or in criminal court in support of the moral victors in the war against their criminal leaders. Clark has spent much of the 1990s trying to convince the UN that the United States, along with several European countries are responsible for genocide in Iraq, as they use sanctions as the ultimate tool of persecution, targeting a large group of people based on their nationality.
Clark's discussion of Iraq, of Rwanda, and of the former Yugoslavia and Kosovo, seems to be motivated by a deep dedication to humanitarian concerns. It is informed by his belief that both international and domestic courts are critical tools for protecting the rights of individuals from governments.
He also thinks that an objective truth can be found or uncovered through the process of litigation. For Clark, courts are the appropriate forum for negotiating a moral highground. In turn, they are particularly dangerous when they don't have the legal power to act independently of a political mandate.
Clark thinks a permanent International Criminal Court may succeed where the ICTR has failed. He says "it may not be more selective", but that at least there will be "more selections." In turn, a broader array of individuals can be held accountable in a legal "forum for the application of facts and uniform principles" without the politicization implicit in a the ICTR's narrow jurisdiction, which can only try individuals for acts that took place in Rwanda, in 1994.
A more diverse range of indictees would help to ensure that there is, and that there appear to be, equality before the law. This is critical, says Clark, because "equality is the mother of justice".
It can also help to avoid "the psychological dangers of branding people", groups of people, which in fact is the criminal essence of genocide and crimes against humanity.
Not only people, but events must be somehow equal before the law. According to Clark, the narrow confines of legal rules can only have just result when applied to a wide historical field. If courts can be arbiters of truth, and as such of morals and ultimately of justice, they must exist within wide historical parameters.
Otherwise, argues Clark, courts become historical battlegrounds, rather than citizens' sanctuary from their governments.
Governments which, he says, are the biggest violators of human rights, simply "because they can".
Without the mandate and jurisdiction to take a human and international view of history, the courts are just like any other instrument of political power, a tool in the arsenal to continue a war against civilians, just "by another means".