Text presented for discussion at the 11th Continental Conference of the
Guatemala, Guatemala,
6-10 October 1997
In the past five years, we have witnessed a monumental crisis in Central Africa. Millions of dead, unending war, refugee crisis, international intervention and an intense media campaigns have marked these earth shattering events. The themes of human rights, war crimes, right of intervention, and impunity have been omnipresent in newspapers and on television screens. The major northern actors in this crisis have been the United States, Canada and Great Britain.
Fundamental legal principles have been relegated to the back burner - the right to peace from foreign aggression, the right of self-determination and the principle of the inviolability of national borders, the right of refugees to be treated according to the basic principles of international law, the principle of criminal responsibility for authors of major war crimes. United Nations agencies and most nongovernmental organizations(NGO's) and human rights organizations have played an active role in this crisis supporting intervention and providing moral justification for the horrors imposed in this recolonization of Central Africa. Twenty years ago, most progressive minded people would have pointed a blaming finger at the great power interests in this crisis. Most now have adopted the position of United States, British and Canadian foreign policy blaming the African ethnic groups themselves for the massive human losses in the region. Those who oppose this approach, who question the general wisdom, who swim against the current, are killed, vilified or ostracized. The probable consequences of this new outlook for most of the world are extremely serious since the major powers led by the United States believe they have the de facto right to intervene directly or indirectly where they wish when they wish.
In this paper, we shall examine a few basic principles of international law and see how they have been violated. We shall conclude by examining perspectives for Africa and Latin America. The American Association of Jurists has long campaigned for the respect for international law. It is time for a patient and honest discussion of these issues in the final years of this century which have come to resemble more and more the final decade of the 19th century.
In December 1993, a military mission of the United Nations Security Council invaded Rwanda (after the fiasco in Somalia in 1992 and the continuing trusteeship of Iraq since 1990). The United Nations military mission aided and abetted the RPF to take power. When the airplane carrying the two Hutu Presidents, Juvenal Habyrimana of Rwanda, and Cyprien Ntaryamira of Burundi was shot down at the Kigali airport in April 6, 1994, ethnic violence broke out and many thousands of Tutsi and Hutu died before the cameras of the Western media. The horrible details of the ensuing military campaign and ethnic carnage are not the subject of this paper.
Several factors must however be underlined :
1. Massive NGO support for the RPF and the international invasion of the United Nations under Chapter VII of the UN Charter.
2. The defenders of Rwanda from October 1, 1990, were painted as genocidal tyrants while the US supported invading Tutsi army was described as a corps of disciplined freedom fighters.
3. The Hutu Government (Rwanda was 85-90% Hutu) was replaced by a minority Tutsi dictatorship with no proposed majority rule, no prospect for elections - they are specifically forbidden - and the imprisonment of more than 100,000 Hutu men and children (and some women) all "accused" of genocide.
4. Massive US, British and Canadian intervention and NGO intervention to rebuild Rwanda and prosecute the Hutu majority of Rwanda according to the current stereotype.
French influence in the region is on the wane and the French are blamed for complicity in the Rwandan catastrophe.
5. Silence in most circles about the military intervention from Uganda in violation of the basic principles of international and African law.
6. Military consolidation and rearming of Rwanda by the US and Britain in preparation for the next step.
7. Obvious Uganda military presence in Rwanda: many soldiers of the occupation of Rwanda speak a Ugandan language and not Kinyarwanda. There is a consolidation of the military command Museveni(Uganda) - Kagamé(Rwanda).
In Zaire, the military campaign, led in name at least by ex-revolutionary diamond and metal trader, Laurent Désire Kabila, was undertaken in the name of democracy and human rights to overthrow the Mobutu dictatorship installed by the United States some thirty years earlier. In the short military campaign, observers have noted that the Kabila forces probably killed in cold blood and for racist reasons more innocent unarmed civilians than Mobutu killed in thirty years. The political process of democratization which envisaged elections was set back and political activity banned. As the war advanced, American and Canadian mining companies were granted outrageous mining concessions in eastern Zaire. Zaire is now beset not only by a dictatorship but is also under foreign occupation.
Once again, international law has been totally ignored. National borders have no meaning. The long established principle of inviolability of national borders reaffirmed in republican and revolutionary periods has been abandoned. Armed invasion by foreign liberators installing a pro-American government is the rule - at least for Rwanda and Zaire. The human rights establishment in Geneva and New York and the international NGO's have supported these aggressions. Under the pretext of the artificiality of the borders imposed by the Berlin conference of 1885, we hear that these borders can be changed by Western inspired economic and military force even if African and international law have consistently affirmed the importance of the preservation of these borders. Will the new international law favor the principle "might is right"? We hear little about the crime of planning and waging wars of aggression as defined in the Nuremberg trials in spite of the omnipresent propaganda about war crimes. The search for and prosecution of war criminals is a common theme in the media: "never again", we hear. We refer to the legacy of Nuremberg but almost no one speaks of the major crime defined by Nuremberg: that of planning and waging of aggressive war as undertaken first against Rwanda and next against Zaire. Crimes alleged are limited to international humanitarian law which deals only with violations committed in the conduct of war and which puts its head in the sand with respect to the crime of planning and waging war.
The international nongovernmental organizations actively supported the RPF military invasion of Rwanda and then of Zaire all in the name of human rights and democracy. Instead, after the horrible interethnic violence of April to July, 1994, we have seen more war, military dictatorship by the Tutsi minority in Rwanda, concentration camps for the Hutu population in Rwanda and Burundi, and the racist murder of hundreds of thousands of Hutu. We are witnessing the shelving of the fundamental principle of the right to peace and self-determination, the right to life, in the name of human rights and democracy as conceived in the West, the imposition of pro-American regimes and a dramatic reversal of the decolonization of the 1950's and 1960's. Zaire has been renamed to its colonial name, the Congo, and one expects the renaming of the major eastern cities to become once again Elizabethville and Stanleyville. Rwanda has applied to join the British Commonwealth. The right to self-determination, the basis of all human rights as described in article 1 of the two 1966 pacts for political and civil rights and social, economic and cultural rights, has been set aside. It would seem that there is a new right of intervention by the great powers supported actively by the international NGOs, the majority of the human rights movement and the organizations of the United Nations in Geneva and elsewhere.
In late 1996, the HCR and the RPF jointly asked the Government of Tanzania to expel the hundreds of thousands of Hutu refugees by force. This was done. As early as September 1995, the HCR had suggested forced repatriation of refugees. In November 1996, the largest refugee camp in the world in Eastern Zaire was shelled by the heavy artillery of the Rwandan and Ugandan armies. The international community and the HCR abandoned these refugees to the oncoming armies. Amnesty International was one of the few international organizations to condemn this mistreatment of the Hutu refugees. Some 500,000 thousand returned to Rwanda: young men as well as many others were sorted from these returnees and killed or imprisoned. The majority fled the camps further into Eastern Zaire, one of the most inhospitable jungle areas in the world. President Yoweri Museveni was quoted in Africa International in February 1997 as saying that they had to be destroyed : it was not enough to drive them from the border. Hundreds of thousands of men, women and children were starved or killed using some of the extermination tactics alleged during the RPF invasion of Rwanda some years earlier. The cameras of the world were excluded from the area.
According to many sources, a favorite tactic was for the HCR to group the fleeing refugees from Eastern Zaire together and then the Rwandan- led army would attack and exterminate them.
From the point of view of refugee law and the defined role of the High Commission for Refugees, it is imperative to point out the following:
1. The HCR failed to protect the refugees. It adopted and promoted the RPF propaganda that the refugees were hostages of the former Rwandan army and the Hutu militias. The entire Hutu population in exile was presumed genocidal and the slaughter of thousands of Hutu by the RPF was alleged to be isolated exceptional acts by a few members of a generally disciplined and principled army.
2. The HCR is illegally participating in the forced repatriation of the Hutu refugees against their will.
3. The HCR has now ostensibly decided to try to protect some of the refugees who have returned to Rwanda and, as we understand, help the RPF sort out genociders from the returnees. This is outside the mandate of the HCR. They are no longer refugees. In spite of the good will of some of the HCR "helpers", the HCR is carrying out part of the US Ugandan-RPF plan. The HCR role as a protector has been transformed to its opposite and it has become an agent of the RPF in the persecution of the Hutu majority. These activities and the politicization of the HCR in favor of the winning party in the conflict is a bad precedent which bodes ill for refugees in future conflicts. THE RWANDAN IMPUNITY ISSUE : THE THEFT OF TRUTH AND JUSTICE IN CENTRAL AFRICA
The unpunished murder of thousands of people in Chile, Central American, Uruguay, Haiti, Panama, South Africa, Argentina and elsewhere during the liberation struggles of the 60's, 70's and 80's is a permanent blemish on these countries' history and a glaring impediment to the establishment of social justice, genuine independence and democracy. The failure to punish the murderers and torturers, all allies of the United States, is a threat to anyone who wants to continue the fully justified struggles of the past decades. Worse still, the unpunished murderers are "respected" members and well off actors in the new democratic regimes. The campaign against impunity is a noble one which must be continued.
The problem resides in that the anti-impunity campaign has been diverted, stolen and transformed into its opposite in the Great Lakes crisis : in the name of the fight against the culture of impunity, the losing side in the war on Rwanda is being subjected to arbitrary and unjustified punishment.
The International Criminal Tribunal for Rwanda (ICTR) was set up by the Security Council in November 1994 to judge the authors of war crimes and crimes against humanity committed in the calendar year 1994. Unlike the Nuremberg Tribunal, the ICTR Tribunal statute does not contemplate the crime of planning war. It is imposed on the world illegally by a Security Council resolution rather than by a vote of the General Assembly or by treaty. The rule for tribunals in international law is consent to jurisdiction by treaty.
The court is in many ways an appendage of the RPF Government. In June 1997, the Registrar and Prosecutors traveled from the seat of the Tribunal in Arusha, Tanzania to Kigali, Rwanda to meet political leaders of the Rwandan Tutsi dominated dictatorship who had complained about the delays in Tribunal proceedings. The Prosecutors Office is based in Kigali. Even if the UN Gersony report in September 1994 denounced the murder of up to 30,000 Hutu by the RPF since July 1994, it is obvious that none of the RPF invaders will be charged in this Court void of even the trappings of independence. Under its statute, this court has no jurisdiction try the authors of the massacres of thousands of Hutu refugees at Kibeho in April 1995 nor the authors of the murders committed after January 1, 1995 of the tens or hundreds of thousands of Hutu described the Prime Minister Faustin Twarimungu or Minister of the Interior Seth Sendashonga when they resigned in September 1995.
Individuals are spirited out of countries surrounding Rwanda and sent to Arusha, Tanzania where the Tribunal is based. The procedure resembles the United States kidnapping and prosecution of Panamanian General Manuel Noriega or Mexican Doctor Alvaro Machain. No extradition, no appearance before a Court in the country of origin. Some of these accused are indicted and others held under simple suspicion. Borders disappear again. Detained persons are frequently deprived of the right to contact a lawyer in order to extort confessions. This procedure occurs under the leadership in part of one or more former Canadian defence lawyers parading as Security Council supercops. Recently, the wrong man was even arrested in Kenya and deported to Arusha.
Even more worrisome are Rwandan internal criminal courts. Approximately 120,000 Hutu prisoners including children are detained on "genocide" charges, but only about 10% of them having documented files. Under the new "Genocide law", a law of criminal procedure inspired by Canadian jurists and Fujimori's anti-terrorist legislation, these accused have no recourse against their prolonged detention without charge. This law provides for the reduction of the death penalty to prison terms based on the condition of confession accompanied by useful information on "accomplices". Rwanda and the Belgian NGO Avocats sans Frontières are seeking the help of foreign lawyers to help implement this plea bargaining system and ensure convictions of more accused. The system bears no similarity to Canadian plea bargaining in which the accused pleads guilty to charges reduce so as to correspond to the available evidence.
Trials of these Hutu accused will be held before minority Tutsi judges having received four months training under a program organized by Canada. There are almost no lawyers and case documents are provided the day before. Most trials last a few hours based on documentary evidence and the death penalty is the general result. The trials, broadcast on the radio, are held in an atmosphere of hysteria. These legal lynchings have been praised by the United Nations Commission for Human Rights which underlined the progress made in Rwanda in the fight against impunity. Amnesty International is one of the few international organizations to criticize these trials in its April 8 report Unfair Trials: Justice Denied.
Parallel to this punishment reigns a terrible impunity. In Eastern Zaire, a few hundred kilometers away, we have seen that hundreds of thousands of Hutu refugees have been massacred by the US allies, the Ugandan and Rwandan armies. Not to mention the executions of the local populations by the same armies. The systematic murder of Catholic leaders such as Archbishop Christophe Munzihirwa of Bukavu is reminiscent of the tactics of the Salvadorian death squads who murdered vocal critic and champion of the people Archbishop Romero in September 1980. Christophe Munzihirwa was himself an outspoken critic of the exactions on the Hutu refugees by the Tutsi armies of the region. Moreover, no one is accused of the supreme crime of organizing aggressive war in spite of two major invasions in six years: Rwanda in 1990 and Zaire in 1996.
Impunity reigns in Burundi where the army of the Tutsi minority has held power since independence, except for a brief interlude from 1993 to 1996 during which two Hutu Presidents were assassinated and one deposed by a military coup. The capital, Bujumbura, has been the object of ethnic cleansing, all the Hutu having been driven out into concentration camps - Guatemala style model villages. No one was punished for the murder of 300,000 Hutu in 1972 nor for the frequent mass murders by the Tutsi army of Hutu men, woman and children continuing from 1993 to the present.
The adoption of the slogan of the fight against impunity to justify war and aggression and US sponsored Tutsi dominance is little more than human rights demagogy. Behind the thin veneer of respectability associated with the fight against impunity, we can read once again the history of the last thirty years : impunity is the rule and is reserved for the powerful allies of the United States whereas one sided punishment is the sort reserved for the downtrodden peoples who stand in the way of Western sponsored hegemony. The problem is that this discourse enlists alot of naive or not so naive opportunistic support. And human rights jabberwocky becomes an obstruction to truth and justice. Where will the misguided human rights establishement strike again? Consequences
An African historian and journalist, Mr Astutsé Kokouvi Agbobli wrote in Africa International in May 1997 : (translation) " these changes have nothing in common with the aspirations of the peoples of the region for freedom, democracy and independence and genuine industrialization. This war is an alliance directed against authentic African nationalists." Nothing could be more true.
The principles and problems raised in this paper are at the heart of the preoccupations of the AAJ - they are our raison d'être. In America in 1997, one hundred years after the Spanish American War we see marked similarities with the era of the "big stick". Cuba is faced with increased interventionism with the Helms-Burton legislation asserting the right of the United States to strangle Cuba and impose the form of Government the US wants. In 1996, the Cuban Government warned its people of the risk of NGO infiltration to undercut Cuban resistance to the blockade and its exercise of the right of self-determination. The United States is tightening is grip on Puerto Rico. The United States proclaims the right to certify and decertify Governments based on the countries compliance and cooperation with US drug policy. Haiti is still under military occupation to bring democracy and justice: what is the UN doing about the theft of all the national assets of Haiti? Peru with Canadian and US support shamelessly imposed a military solution to its hostage crisis. The Bretton Woods institutions continue to impose more and more stringent sacrifices on the peoples of America. At stake is the right of the peoples of the region to undertake the changes required to allow for democracy, genuine independence and economic and social justice.
In Central Africa, history has been rolled back at least forty years. We are witnessing a recolonization of Africa. The United States has created a new Israel through the Tutsi dominated regimes of Uganda, Rwanda, and Burundi. Far from stopping, the war will no doubt intensify and not end until power is returned to the Bantu Hutu majority in the region.
We are not so naive as to assume that the mere fact of understanding the violations of international law will correct the situation. The damage is done and many battles remain. But we have a role to play.
In recent years, many so-called human rights experts have filled the ideological vacuum and provided intellectual and ideological support for the horrible colonialist war in Central Africa in favor of the major beneficiaries in the United States, Great Britain and Canada. What has happened to international law? Human rights intervention seems to have become the primary ideological justification for imperial intervention. Human rights campaigns are obstacles to the right of self-determination even though we know that the basis of all human rights is the exercise of the right to self-determination. Concerning organs of the United Nations in Geneva and New York, in times of crisis, we never see a principled stand in support of the fundamental right of self-determination. We see rather a consensus in favor of institutional or military intervention based on ivory tower judgments by the sacred authorities of the United Nations. And by coincidence, the direct or indirect power of the United States is invariably reinforced or increased.
Human rights institutions in the United States, Canada and Europe are very well endowed financially. International human rights departments have become major players in foreign policy and external affairs. "He who pays the piper calls the tune". Many well paid experts dress up their country's foreign policy and United Nations policy with the sanctity and moral high road of human rights. They become virtually untouchable moral authorities. Yet, a careful study of some of their most sensitive reports reveal the empty shell they are built on. This milieu has become one of power, patronage and influence.
Canadian foreign policy in the region is exercised overtly through Canadian NGO's. For the three years 1995-1997, Canada has spent 127$ million: 60$ million as bilateral aid through NGO's such as the ACCT, CECI, Oxfam Québec, and Peace and Development and 67$ million multilateral aid for the region, 30% spent through Canadian NGO's and the balance through UN agencies such as the HCR and the World Food Program. In December 1996, Minister Doug Young stated that Canadian foreign policy would change after the return of the 500,000 Rwandans to Rwanda : instead of Canadian sponsored military intervention in the area, Canada would work through the NGO's. Should we not label many NGOs as GO's - Government Organizations? There is a sign of a growing problem of the incestuous relationship between some NGO's and the military. Canadian Major General Guy Tousignant, former United Nations force commander in Rwanda is now Chairman of Canadian NGO Care Canada. Canadian universities are shamelessly involved in exporting the rule of law and teaching the "natives" how to be more like us. The fight for truth, independence and sovereign equality will necessarily confront this establishment : the new imperial missionaries of the 21st century.
There is an extremely dangerous current of thought in the so-called progressive circles in North America and Europe : the world has changed they would say; interventionism is no longer a fundamental problem which affects all power relations; therefore it is not necessary to place a high priority on the fight against great power intervention. At best this is naive thinking, at the worst it is blatant dishonesty. Have governments which napalmed and massacred peoples of the third world suddenly changed? Are they interested in the rights of these peoples? Or are they simply using a new tactic to control them? This current is very prevalent in academic, United Nations, legal and NGO circles. The AAJ has a long history since its founding in Panama in 1975. Our collective memory, our rigor, our flexibility, our expertise and our integrity and solidarity provide us with the tools to confront this moral and intellectual crisis. We must not stand still and allow our principles to be turned inside out and become tools for oppression and recolonization of the underdeveloped world. Either we are part of the problem or part of the solution. We might be best to look at the world from the point of view of the Iraqis, the Palestinians, the Somalis, Haitians, Cubans and the Bantu peoples of Central Africa rather than from the offices of the UN and human rights establishments in Geneva, New York and elsewhere. Our tolerance, our ability to exchange ideas should allow us to move forward and confront the formidable intellectual, legal and political challenges of the next century.
John Philpot
300 Léo Pariseau 2201
Montréal Québec
H2W 2N1
tel: 514 982 0144 fax: 514 982 0149
philpaaj@citenet.net