Explaining Erlinder?

On Friday, American lawyer and law professor Peter Erlinder was arrested in Rwanda. His alleged crime is “genocide denial”, one of a set of offenses prosecutable in Rwanda under the 2008 “Law Relating to the Punishment of the Crime of Genocide Ideology”. That law has been used to subject Erlinder’s client, opposition presidential candidate Victoire Ingabire, to house arrest since shortly after her return to Rwanda from the Netherlands. Erlinder knew that he was risking arrest in coming to Rwanda – he has been a fierce critic of President Kagame’s administration, is representing accused genocidaire Major Aloys Ntabakuze at the international tribunal in Arusha, Tanzania, and warned the US State Department and the Minnesota congressional delegation before making the trip.

Rwanda is a fascinating and divisive place for people concerned with the future of Africa. For some, the country is a model of stability, economic growth and the empowerment of women. Michael Fairbanks, economic advisor to the Kagame government and influential management consultant, offers a passionate defense for the direction of the country in a recent column… so passionate that it appears to accuse of racism anyone who disagrees with his interpretation.

On the other hand, human rights and press freedom organizations have expressed concerns for years that Rwanda has been functioning as a one party state, putting insurmountable obstacles in the path of opposition parties and silencing independent media. This pressure appears to be increasing in the lead up to August presidential elections – in recent months, Rwanda has suspended two independent newspapers, forced a Human Rights Watch researcher out of the country, arrested an opposition leader and prevented two opposition parties from registering from participating in the election. These recent actions led US Assistant Secretary of State for African Affairs Johnnie Carson to comment earlier this week on the “worrying actions” taken by the Rwandan government.

I was last in Rwanda in 2002, helping Geekcorps set up a program to provide assistance to a Kigali-based technology firm which had been contracted to build a database to schedule and manage the Gacaca court system. What I remember most from visit was the way in which the genocide would creep into conversations at unexpected intervals. Coming into Kigali from Butare, my driver stopped at a shop on the outskirts of town, went inside and quickly returned with a frilly pink girl’s dress. I asked him how many children he had, and his response – “six – two of my own, and four of my brother’s who escaped the genocide” – quickly turned into a harrowing tale of searching for his nieces and nephews as they hid in the jungle. The genocide is still recent, raw history for everyone in the country, and it’s possible to understand why – given the role of the media in instigating violence – the Kagame government would seek to keep ethnic divisions out of media and politics.

There’s a fine line between preventing incitement to violence and silencing legitimate speech… and it’s not clear to me that the Kagame government has been on the right side of that line. In 2007, Michael Kavanagh reported for On The Media about a Rwandan radio soap opera – Musekeweya – which talks about the tensions between two villages, which are perpetually on the verge of mass violence. The parallels to Hutu/Tutsi conflict are apparent to everyone listening to the show (as much as 80% of the country), but the show stays out of trouble with the authorities by never explicitly mentioning Hutus or Tutsis.

More explicit dialog about what happened between Hutus and Tutsis in 1994 is now complicated by the 2008 Genocide Ideology Law, which is broad, vague and terrifies human rights and freedom of expression organizations. Article XIX released a detailed comment on the new law which reads, in part:

the definition of “genocide ideology” violates international law on genocide and “hate speech” in multiple ways. Furthermore, the system of penalties also breaches international human rights law, particularly with respect to children. We contend that the law is so contrary to international human rights law and humanitarian values that it is fundamentally flawed.

And this law now appears to be a useful tool for challenging political participation. When Victoire Ingabire returned to Rwanda, she visited the genocide memorial museum in Kigali and questioned why it didn’t commemorate any of the Hutus who died in the violence. This question led Kagame’s foreign minister Louise Mushikiwabo to characterize Ingabire’s actions as “very deliberate, controversial ethnic politics, this woman really has a genocidal ideology”.

In interviews with US and UK media, Ingabire seems pretty far from expressing support for genocide – her issue appears to be the governments’ unwillingness to address violence against Hutu by Kagame’s conquering RFP army. In an interview today with the New York Times about the arrest of her lawyer, she said, “There was a genocide against the Tutsi, but there were also crimes against humanity, and Kagame doesnt like to talk about that.”

I’ve been looking for information online today about Peter Erlinder, to get a sense for why the Rwandan government would risk a diplomatic conflict with the US over his arrest. In the process, I’ve been thinking a lot about a conversation I had yesterday with Jay Rosen about the role of explanatory journalism. Jay points out that, in a hyperlinked age, we can do ever so much better than providing a “nut graph”, a single paragraph designed to put a complex breaking story into context. Instead, we can link to careful, thoughtful background material designed to give deep explanation a story and create an appetite for more breaking news on said story. (Jay’s post on the idea of the National Explainer is very much worth reading.)

To understand Erlinder and his arrest, one needs deep explainers on the Rwandan genocide, the prosecution of instigators, the role of the UK, US and France and on alternative narratives for what happened in 1994 and immediately before and after. I’m not able to offer those deep explanations, but I’ll point to what I’ve found.

The William Mitchell College of Law offers strong support for their arrested faculty member and points out that, “Prof. Erlinder exemplifies the great tradition of lawyers who take on the representation of unpopular clients and causes.” The president of the National Lawyers Guild – which Erlinder presided over from 1993-97 – uses similar language to defend Erlinder as “a vigorous advocate in his representation of [Victoire Ingabire].”

It’s not quite that simple. Erlinder isn’t just defending an opposition politician – he’s been a critic of the history of the 1994 conflict and an advocate for an explanation of the Rwandan genocide that puts a great deal of the blame on the shoulders of Paul Kagame. In a commentary in Jurist, a website from University of Pittsburgh’s School of Law, Erlinder argues that Kagame was responsible for triggering the genocide by arranging the assassination of Rwanda’s president Juvnal Habyarimana and that Kagame’s troops killed tens of thousands of Hutu civilians in eastern Rwanda as they entered the country. He further asserts that a US/UK coverup has surpressed evidence about Kagame’s role in Habyarimana’s death, in part because the US wanted Kagame to take over the country and supported his rise to power. Some of what Erlinder asserts is consonant with an emerging understanding of what occurred in 1994 – human rights activist Alison Des Forges, who wrote what is considered the definitive account of the Rwandan genocide before her untimely death, had also criticized Kagame’s RPF for massacres of civilians in 1994 and for subsequent attacks on civilians and refugees in DRCongo… she had been banned from entering the country by the Kagame government. Other of Erlinder’s assertions – the US/UK coverup, notably – are strongly disputed. Erlinder attributes some of what he asserts about the coverup to Clinton administration official J. Brian Atwood, who strongly disputes Erlinder’s account of events.

Erlinder’s case relies on documents he had access to as a defense attorney at the international tribunal, on the unpublished Gersony Report, which (allegedly – the report has never been released and the author refuses to discuss the contents) reported attacks by Kagame’s RPF on civilians, and on statements from Carla Del Ponte, the outspoken ICTR prosecutor who raised questions about Kagame’s role in the 1994 genocide before complaints from the Kagame government led to her replacement. (The Rwandan government complained that prosecution of perpetrators of the Rwandan genocide was too important to be a part time job for a European prosecutor also tasked with prosecuting Yugoslav war criminals. Del Ponte believed that she was removed from the post when she announced her intention to prosecute Kagame.) The Rwanda Documents Project, an online archive of legal documents and opinion pieces from Professor Erlinder, offers an introduction to Erlinder’s arguments and supporting documents.

When I refer to Erlinder’s “case”, I mean that literally. Erlinder and other lawyers attempted to serve President Kagame with a wrongful death lawsuit on behalf of the widows of former Rwandan President Juvenal Habyarimana and Burundian President Cyprien Ntaryamira when Kagame gave the commencement address at Oklahoma Christian University.

In other words, Erlinder had to know he’d be arrested when he came to Rwanda. The open question was whether his arrest would a) cause a diplomatic rift between the US and Rwanda, b) draw attention to Rwanda’s repressive speech and political environment and c) open discussion about the “received history” of the Rwanda genocide. So far, only b) seems to be coming into play. The Wall Street Journal wrote a helpful, if dismissive, editorial about Erlinder’s arrest, which advocates for his release while noting that: “Mr. Erlinder’s views seem foolish, offensive, and ultimately unhelpful to the cause of liberty he claims to champion. But therein lies the test of the free society: Tolerance of the foolish, the offensive, and even the unhelpful.” In other words, they’re putting Erlinder in the same bin as John Yettaw. (As of today, the US State Department has stated that they’re aware of Erlinder’s arrest, but said nothing beyond that statement.)

An “explainer” that puts Erlinder’s actions and motivations in context is no easy thing to provide. It needs to address the current elections, Rwanda’s political and speech environment, the conduct of the RPF in taking over the country in 1994, and, ultimately, the controversy over Habyarimana’s assassination. For a sense for just how fraught that last topic is, it’s instructive to look at this section on Wikipedia – it offers links to the three major theories offered for the assassination, which blame Hutu extremists, Kagame and the RPF and the French government. Each theory has its supporters, and the RPF/Kagame theory that Erlinder supports has the backing of French anti-terrorist magistrate Jean-Louis Bruguire, who has issued arrest warrants for senior Kagame officials so they can be questioned about he case. (Needless to say, the Rwandan government and others cite reports that contradict Bruguire’s findings.)

Is Erlinder an unhelpful fool, as the WSJ asserts? A conspiracy theorist, as the Rwandan government alleges? A brave activist committed to uncovering the truth and righting an important historical wrong? Perhaps this is where we have to accept the limits of journalism and wait for the verdict of historians. BBC journalist Marc Doyle suggests that determining who assassinated Habyarimana could be “one of the great mysteries of the late 20th Century.” But if we’re going to understand Erlinder’s arrest, we need someone to explain, at minimum, the controversy and what Rwanda’s – and eventually, the US’s – reaction means.


I didn’t mean to write about Professor Erlinder this week – there’s far too much I’ve got unwritten at the moment. But I’ve been following Rwanda’s crackdown on journalistic and political speech closely, because I’m fascinated by the ways in which Rwanda looks dramatically different through different lenses. I’d hoped I could answer a simple question for myself in doing a few hours reading: did I think Erlinder was a misguided crank, or a brave activist? I still don’t have a good answer, and I now have the sense that answering the question for myself would require weeks of reading, not just answers.

While I can’t answer the Erlinder question, I’ll offer a closing observation on Rwanda’s media environment. I’ve been trying to follow the Rwandan government’s reaction to Erlinder’s trip to Kigali. It’s made almost impossible by the fact that Rwanda’s national news agency publishes its reports under a subscription service. While the subscription is free (as in beer), it evidently requires human review and perhaps some scrutiny – I applied for access on Friday and haven’t heard back yet, which means my attempts to read Rwandan government responses are generally met with “Login denied! Your account has either been blocked or you have not activated it yet.” Not exactly the response you’d hope to get from a government news agency in a free and open society. As Sarah Boseley notes in an excellent article written for the Guardian – and filed from within Kigali – the Kagame government is much less interested in human rights – and international opinion – than it is in stability and growth.

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9 Responses to Explaining Erlinder?

  1. Aimable says:

    Hi Ethan,

    Great analysis! The only two things I would like to add are:

    1. Spanish Judge Fernando Andreu has indicted 40 RPF soldiers for committing mass murders. It is not only a French judge who has issued arrest warrants against some extremist Tutsis currently in power.

    2. In a December 2006 interview with BBC Hardtalk, General Kagame pretty much admits to having killed President Habyarimana. The interview transcript and the video of the interview can be found at http://goo.gl/b7av

    3. Sarah Boseley in the Guardian and others may claim that Kagame is more interested in “growth and stability.” But those of us Rwandans who know how many people Kagame’s forces have butchered in Rwanda and in neighboring DRC know that his main motivation is self-preservation. He knows that when he is out of power, he has no more immunity from prosecution. Therefore, he will do anything he can to stay in power. But just like Saddam Hussein in Iraq, eventually Kagame’s crimes against humanity will catch up with him. Jailing Prof. Erlinder will not slow down this process. If anything, it will shed more light to Kagame’s ruthlessness, which will speed up Kagame’s upcoming Day of Reckoning.

  2. Graham says:

    The RNA subscription can be a bit ropey, but there isn’t – as far as I can tell – human review. Just try a few different email addresses and usernames. I normally have to create a new one every few days.

    For all it’s faults, RNA is probably the best English language outlet in Rwanda. Far less ‘on message’ than the New Times.

    You might find this piece interesting re: media ownership in Rwanda:

    http://www.eastafricapress.net/index.php?option=com_content&view=article&id=232:kagame-tops-media&catid=80:latest-news

    Good analysis on Erlinder too, thanks.

  3. Blue says:

    You might start at this point:-

    http://www.unictr.org/Portals/0/Case%5CEnglish%5CBagosora%5CJudgement%5C081218.pdf

    This is a link to the judgement in the case at the ICTR called Military 1 where the defendants included Bagasora. Although B was convicted of Genocide he was found not guilty of conspiracy to commit genocide.

    If you turn to pages 531 to 540 (paras 2084 to 2113) you will see the Court’s findings on the conspiracy issue. At para 2092 the Court said that

    “2092. ….the Chamber emphasises that the question under consideration is not whether there was a plan or conspiracy to commit genocide in Rwanda. Rather, it is whether the Prosecution has proven beyond reasonable doubt based upon the evidence in this case that the four Accused committed the crime of conspiracy.”

    It seems from Erlinder’s writings that he is arguing that the Court decided the first question rather than the second. As you can see this was not the case. If you read just the 10 pages I have referred to you will see references to what went before in the way of preparation [April 1994] including evidence from Alison Des Forges who you have referred to in your article.

    Even if the ICTR has not found anyone [yet] guilty of the crime of conspiracy, always a difficult thing to prove, and to a criminal standard of proof, it is clear that the genocide was pre-planned just from the references to the evidence presented.

    So you will see why Rwandans find Erlinder’s denial of this so offensive and of course wrong. As to his seeing court documents, well the Court would have seen them too.

    It is of course one of the characteristics of Genocide that afterwards people try to argue that it never happened or that it was the fault of the victims.

    Erlinder knew that denying the genocide was a crime in Rwanda. Maybe he did not think the govt would arrest him. It seems he did not come to represent Ingabire since he was not recognised as a lawyer in Rwanda and made no application to be so recognised.

    Rather like Ingabire’s [intended] candidacy, it seems Erlinder’s trip may have just been a publicity stunt.

    Kagame is saying that the govt has evidence that Ingabire has been meeting with and funding terrorist groups in the DRC and that she has been confronted with the evidence. See this from the [Ugandan] Monitor

    http://www.monitor.co.ug/News/National/-/688334

    After her assistant was accused of involvement in the Genocide Ingabire said this accusation was politically motivated. So did Human Rights Watch. See this link:-

    http://www.hrw.org/en/news/2010/02/10/rwanda-en

    Mr Ntawangundi subsequently admitted his guilt and begged the court for forgiveness. As a result Ingabire has arguably little credibility in Rwanda [and what about HRW too?].

    As for the HRW researcher, it seems there were immigration irregularities in the application for the visa extension coupled with forgery of signatures followed by threats. See here:-

    http://allafrica.com/stories/201004280546.html

    As for the exclusion of Des Forges from Rwanda twice before she died, there has been an increasing bias in HRW writings and from the US in general (and also see above)as discussed here

    http://mynameisnotmuzungu.blogspot.com/2010/05/

  4. Aimable says:

    In response to Blue, I am Rwandan and I know for a fact that in Rwanda, there are two groups of Tutsis. The extremist Tutsis who grew up in neighboring Uganda and the moderate Tutsis who grew up in Rwanda. The extremist Tutsis who grew up in Uganda have never liked the moderate Tutsis who grew up in Rwanda. Whereas the extremist Tutsis believe they are royal blood who are born to rule, the moderate Tutsis consider themselves normal human beings. But somehow the extremist Tutsis have used the moderate Tutsis as pawns to be sacrificed in their quest for power.

    On January 28, 1993 exactly 15 months before the so-called “Tutsi genocide”, it was the first time that anyone had ever mentioned the word “genocide” in relation to Rwanda. This word was mentioned by extremist Tutsis who were part of the RPF rebel group. From that moment on, these extremist Tutsis in the RPF started using the word “genocide” in all their interviews, their speeches, their written materials, everything. On the other hand, on February 8, 1993 exactly 11 days after the first mention of that word, the extremist Tutsi forces in the RPF butchered 40,000 unarmed Hutu civilians in one day in the regions of Ruhengeri and Byumba in Rwanda. Since then, the extremist Tutsis in the RPF escalated their killings of the Hutu civilian population over the following 15 months. This appears to have been a calculated effort to provoke the Hutu extremists into mass revenge killings, which would then be labeled “genocide” and with the international community on their side, the extremist Tutsis can take over power. The extremist Tutsis’ wishes appear to have been granted on April 6, 1994 when they finally killed two Hutu Presidents, president Habyarimana of Rwanda and president Ntaryamira of Burundi as well as the Hutu Chief of Army.

    The Hutu extremists after 15 months of sustained provocations launched into mass revenge killings against moderate Tutsis that have since been labeled the “Tutsi genocide.”

    A fair review of Rwandan history that fully examines all the actions that have been taken by extremist Tutsis since January 28, 1993 when they first claimed “genocide” can only lead to one conclusion: the extremist Tutsis continuously intentionally provoked extremist Hutus into the mass killings until the extremist Hutus were foolish enough to oblige them.

    Rwanda will never move forward until the crimes against humanity committed by extremist Tutsis are acknowledged too. The saddest part in all this is that the moderate Tutsis and the moderate Hutus are the ones that have suffered whenever the extremist Hutus and the extremist Tutsis decided to kill people.

  5. joy says:

    Aimable….its time you gave up that whole divisive speech It seems you have a problem with kagame, deal with it but dont fool people about all those divisions. Its those divisions that got us to 1994…classifying who and who. Rwanda has moved on. Whether we have democracy as per western standards is debatable only to them. We in Rwanda are experiencing a time of peace, security, tranquility and economic development. If any western government, critic or whoever, can provide us with that, we eagerly wait to hear from them but I wouldn’t hold my breath given the fact that they were no where in sight in 1994. Please leave Kagame and his administration in peace.

  6. Aimable says:

    Joy, there will never be any peace in Rwanda as long as the millions of people who were killed by Kagame’s extremist Tutsi forces in Rwanda between 1990 until today and in DRC in 1996 are recognized too. Trust me, there is no peace without truth.

  7. Ethan says:

    Graham, the error messages I’m getting from RNA suggest that their mail system is broken and isn’t sending out authentication mails… and since one has to authenticate to subscribe, I’m going to continue describing their system as dodgy, at best… :-)

  8. Graham says:

    Can DM you a user/pass?

  9. Pingback: rapha in ruanda » Neues vom Fall Erlinder | rapha in ruanda

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