UN Security Council in 2008: “The Dangerous Del Ponte/Hartmann ICTY/ICTR Memoirs Must Be Suppressed, and the Authors Prosecuted!”

UN Security Council in 2008: “The Dangerous Del Ponte/Hartmann ICTY/ICTR Memoirs Must Be Suppressed, and the Authors Prosecuted!” (Which is Why All “Human Rights” Advocates Must Read Them)

Madame Prosecutor: Confrontations with Humanity’s Worst Criminals, and the Culture of Impunity.

Carla Del Ponte[1] in Collaboration with Chuck Sudetic
(2009 Other Press LCC, NY, – 421pp)

Professor Peter Erlinder[2]


Introduction

It is not often that a first-person memoir immediately establishes itself as a foundational source in such esoteric subjects as International Jurisprudence and the theory and practice of International Criminal Law. But, the recently-published English-version memoir of Carla Del Ponte, the former Chief Prosecutor for the UN Tribunals for Yugoslavia and Rwanda, can legitimately lay claim to being to being such a book, particularly considering the Security Council’s response to its publication in early 2008, and to that of a related book by Florence Hartmann, Ms. Del Ponte’s long-time press-aide published in 2007.[3]

Del Ponte’s memoir may well be the most important international criminal law book published since the Security Council established the Yugoslavia and Rwanda Tribunal in the early 1990’s. And, it is certainly the most important introduction ever written for casual readers, academics and practitioners who wish to understand the realities of the Security Council Tribunals, and the uncomfortable relationship between the Rule of Law and the undeniable effects of international power-politics. The strengths and weaknesses of the Security Council Tribunals described by Ms. Del Ponte, and teased from the previously unknown history of prosecutorial decision-making she reveals, as well as, the largely unacknowledged implications of the pressures that necessarily arise from the interplay between powerful nations, and disfavored less-powerful nations that she describes, provides both inspiration and a cautionary warning for the future development of the International Criminal Court.

If one reads between the lines written by Ms. Del Ponte, it is not too difficult to understand why, so far at least, all of the ICC defendants are Africans. And, given the provisions under which the ICC can exercise jurisdiction, why all ICC defendants before the ICC are, or were, contestants for power with the very ICC Treaty-member governments which referred the cases to the ICC, in the first place. Only Sudan’s President Bashir recently indicted for war crimes in the Sudanese province of Darfur, but not for genocide, was referred to the ICC by the Security Council although, like the United States, Sudan is not a signatory to the ICC treaty. However, unlike recent U.S. leaders who Kofi Annan as publicly accused of launching an illegal war against Iraq, Bashir’s crimes are alleged to have been committed within a portion of his own country.

Ms. Del Ponte’s memoirs were originally published in French in early 2008, not long after she had left her position as Chief Prosecutor at the Yugoslavia Tribunal at the end of 2007. She had yielded her Rwanda Tribunal position in 2003, under circumstances described in some detail in a narrative in her book that may actually be the most important contribution Ms. Del Ponte could have made to the development of a meaningful system of international criminal law, and to combat “the culture of impunity” which her title suggests she abhors.

Rather than a translation of the original of which she is the sole author, the English version of Del Monte’s memoir benefits from the contributions of former New York Times journalist Chuck Sudetic, who covered the Yugoslavia Tribunal for the paper until 1995 and has authored several books on the Balkans, although his biographic notes suggest little experience in Africa, and no specific knowledge of the Rwanda tribunal. Sudetic now works for George Soros’ Open Society Institute and is based in Paris. Apparently fluent in French, Sudetic brings reportorial skill to the story of Ms. Del Ponte’s early life; her career as a crusading Swiss prosecutor and Attorney General; as well as, her nearly eight years of UN Security Council Tribunal experiences.

Security Council Politics and the Ad Hoc Tribunals

Before describing the memoir, itself, the story of its publication provides some insight into the importance that the United Nations Security Council, itself, gives the book. And understanding of which requires a brief introduction into the politics and functioning of the Security Council. First, it must be noted that there is little dispute that real power on the Security Council resides in the five permanent members with veto power, who were the victorious allies in World War II, the United States, the United Kingdom, France, Russia and China, the most militarily, economically and politically powerful of which are the tandem of the United States and the United Kingdom. The influence of each is often multiplied as a consequence of the “special relationship” forged between Roosevelt and Churchill during World War II and has continued for have a century as the U.S. displaced Great Britain as the center Anglo-American influence.

Although the balance of power on the Security Council is changing almost daily, as China rises, and Russia re-asserts some of the power it wielded as one of the two-superpowers, during the decade and-a-half between the Soviet Union’s collapse in the early 1990’s, and the relatively recent emergence of China and a revivified Russia, the Security Council was unable to act without the acquiescence of the U.S. and the U.K. And, while there is a greater “balance of power” on the Security Council today, the tandem-veto power of the U.S. and U.K. still determine the broad outlines of the ability of the Security Council to act, to ensure that it refrains from acting, or to require it actions to be at least acceptable to Anglo-American interests. Other writers with impeccable UN tribunal credentials have noted that, because the Security Council is essentially a political body at the apex of an inherently political institution, it should be no surprise that “politics” and the interests of more-powerful nations would suffuse the functioning of any judicial body established by the Security Council.[4] When the former spokesperson for the UN Tribunal for Rwanda, Kingsley Moghalu, makes this simple observation, it seems obvious and logical truism, hardly worthy of serious debate, or doubt. But, much scholarship and main-stream reportage of the Security Council tribunal proceedings has taken place in a kind of “intellectual-political vacuum” in which the conclusions of participant/observers like Mr. Moghalu, and the experiences of major figures like Ms. Del Ponte, or her former, long-time press aide, Florence Hartmann, who has written about the same subjects, have been consistently overlooked, or the subject of almost willful denial by members of the “Human Rights” Community…..and, as revealed in Ms. Del Ponte’s memoirs, all for good reason.

The Security Council on Del Ponte and Hartmann’s Books:
“Worthy of Suppression and Criminal Prosecution.”

These fundamental political realities are important to recall when considering the implications of Security Council attempt to suppress the publication of Ms. Del Ponte’s in early 2008. And, although the book was eventually published copyrighted by a respected Milanese publisher Feltrinelli Editore, after the storm in Europe over the original French version, the copyright to the English is held personally by Ms. Del Ponte and Mr. Sudetic. The book is distributed by a privately-held New York trade publisher, Other Press, LLC and, not surprisingly, has received little, if any, promotion and exposure in the English-speaking world.

But that is not to say that the book has not captured the attention of important individuals and institutions. The Security Council not only attempted to suppress the publication of Ms. Del Ponte’s book in Europe, but also a similar book by Ms. Florence Hartmann, who is mentioned frequently in the Del Ponte memoir. Hartmann published her own description of her experiences with Ms. Del Ponte in the Security Council Tribunals about six-months before the Del Ponte book was published in September 2007. Not long after the publication of Del Ponte’s book, confirming much of what Hartmann had written in Paix et chatiment : les guerres de la politique (Peace and Punishment: the Politics of War), the Security Council Tribunal for Yugoslavia criminally-indicted Ms. Hartmann for criminal contempt of the Security Council’s court, and she is currently facing a trial at the ICTY.[5]

Fortunately for Ms. Del Ponte, she was appointed Swiss Ambassador to Argentina after leaving her Security Council-appointed prosecutor’s post. With her diplomatic immunity still intact, she has been spared the indignity of being a co-defendant, along with Ms. Hartman, on criminal charges filed by her replacement.[6] If evidence is required to support the bold assertion in the title of this review, that the Del Ponte book may be the most important in the history of the Security Council tribunals, the Security Council’s unconscionable prosecution of Florence Hartmann, and the attempted to suppression of Del Ponte’s book, makes the case better than a humble reviewer ever could.

The reaction to the publication of these books must mean that the most influential members of the Security Council, which controls every major aspect of both Tribunals, consider these books very important, indeed, if not dangerous. But, a reader might wonder, what is so important about these books that would trigger the criminal prosecution of Florence Hartmann and the attempted “Nazi-like” Security Council suppression both books, which could not occur without US and UK acquiescence, or instigation…two countries with a long history of freedom of expression? The answer can be found within the pages of Madame Prosecutor, although it may be difficult to understand for those not already familiar with the functioning of the Security Council tribunals.

Interesting Vignettes: Confusing Narrative

Rather than providing a chronological narrative of the course of events at the Yugoslavia Tribunal and the Rwanda Tribunal, after sketching out the life and career of Ms. Del Ponte before she assumed the Chief UN Prosecutor’s position, the middle chapters of the book present a series of vignettes that make for interesting and even compelling reading, in the same way that a reader might find a cut-up and rearranged Alan Ginsburg novel interesting and compelling. But, as a history of the UN tribunals and Ms. Del Ponte’s experiences with the Security Council in the tribunals, a reader has to stop and re-arrange the narrative into a time-line sequence to make sense of legal, historical and political relationships underlying the interesting vignettes.

Of course, it is not possible to know why the authors chose this opaque organizational style, but it is certainly not the reportorial style that Mr. Sudetic employed at the New York Times, nor is it the style Ms. Del Ponte would have learned to employ as a prosecutor, trained to present a coherent narrative to a court. However, the problems encountered by Ms. Hartmann, whose book does tell the same and related stories in a journalistic style reflective of her own journalistic training, may provide a hint as to the authors’ choice of apparent obfuscation, rather than journalistic clarity. But, as the chronologically re-arranged vignettes emerge into a story a reader can actually follow, the resulting narrative is even more compelling as a history, and an indictment, of super-power political interference in international tribunals, which has created a “culture of impunity for the powerful,” within the tribunal structure, itself.

This brings us to the real value of Del Ponte’s account, which describes in some detail her unrelenting efforts to function as a professional prosecutor in her UN job, as she would have as the Swiss attorney general, and her ultimate defeat by the powerful political forces actually govern the institutions of international law. She gives examples, time and again, of the ways in which the political interests of powerful members of the Security Council foiled her attempts to function in an even-handed, legally responsible manner. And, not surprisingly, she describes how the world’s sole super-power, and its allies, have shaped the prosecutions authorized by the Security Council mandates to establish the tribunals, to fit its own purposes. Of course, in a world of international power-politics this should not be surprising, except for those who seem to think that wishing it were otherwise would make it so, when international criminal tribunals are the issue.

However, by describing the meetings in which decisions were taken, and influence imposed, Ms. Del Ponte has done a service beyond anything she accomplished as a prosecutor. She has revealed that “victor’s justice,” and the creation of impunity for powerful nations and their allies, has been the result of all existing international criminal tribunals, and may be inevitable in a world of great variations in the capability of nations to exercise political, economic and military power. Ms. Del Ponte’s memoir conclusively demonstrates that it is the ability to project power that ultimately governs in international affairs, not the rule of law. And, the day when international law can constrain international power exists in the far distant future.

But, even more importantly, Ms. Del Ponte makes clear, perhaps unconsciously, exactly how the Security Council tribunals have played a central role in creating the completely undisturbed “culture of impunity” enjoyed by the leaders of powerful state and their allies, which is the legacy of all international tribunals to this point.

The Prologue

In the Prologue, Ms. Del Ponte foreshadows stories of the U.S. putting its own policy and political interests ahead of support for the UN Tribunals, detailed later in the book, by recounting her first meeting with CIA Chief George Tenet, shortly after she assumed the UN Prosecutor’s post in early 2000. In the waning days of the Clinton administration she sought Tenet’s assistance in locating and apprehending Radovan Karadzic and Ratko Mladic, the two main Serbian fugitives from the Yugoslavia Tribunal. But, despite Tenet’s assurance of “top priority” CIA cooperation, weeks turned into months without the CIA providing useful information to the ICTY Prosecutor.

By Spring 2001, when Del Ponte next met with Tenet at CIA Headquarters, Slobodan Milosevic had fallen from power and George Bush had ascended to the Presidency, with the assistance of a fellow-Republican Supreme Court majority in Bush v. Gore. After some pleasantries, Del Ponte confronted Tenet with her disbelief that the CIA could have made tracking these fugitives a priority since they were still at large and the CIA was not working with French, British or German intelligence agencies.

Del Ponte reports that she frankly told Tenet, “If you won’t do anything, I think you should at least support our efforts.”

“Look Madame,” Tenet replied, “I don’t give shit what you think.”

Del Ponte’s Early Years

Ms. Del Ponte’s account of her early life in Bignasco, a remote, Italian-speaking Swiss Alps village an hour from Locarno, paints the picture of a childhood of outdoors adventures with older brothers, under the influence of a strong-willed mother with a penchant for fast sports cars, who advised her daughter to be true to herself, no matter what the cost. A lesson Ms. Del Ponte reports has guided her through the rest of her life, and provided the motivation for her later career as a mafia-fighting prosecutor and her “impunity-fighting-at-all-costs” reputation at the international level.

Her father, owner of a small hotel and local public official, is depicted as opposing her desire for higher education and, rather than following her brother into a medical career, she settled for a law degree from the law faculty in Geneva in 1972 and married well. Her first husband was the scion of Roger Bonvin, President of the Swiss Federation but Del Ponte left him a year later, when she fell in love with commercial lawyer she met in Locarno . Between 1972 and 1980, the unsatisfying tedium of her family law and criminal defense practice, which was alleviated by childrearing, sports car racing in Germany and 200 kip jaunts on Swiss mountain-roads, with her mother beside her in Del Ponte’s Porsche 911SC. During this time, she apparently also developed her fondness for Louie Vuitton handbags, which she mentions several times without any apparent ironic “product-placement” self-consciousness.

The Incorruptible Crusading Prosecutor

In 1980, Del Ponte found her prosecutorial-calling when she became one of the few females appointed as a juge d’instruction, an examining magistrate. This position in the adversarial, common-law in the U.S. or U.K. Although considered a “judge or magistrate,” which implies a neutral arbiter in the adversary system, this “investigating magistrate” combines functions of a law-enforcement detective and investigating prosecutor. Files prepared by examining magistrates are turned over to prosecutors, who present their cases in court proceedings in which judges develop the evidence and testimony, and both prosecutors and defense lawyers are charged with assisting the judges in doing “justice.” Over the next 20-odd years, Del Ponte made a national reputation as the scourge of organized crime and large-scale financial fraud, including prosecuting figures associated with major banks, some with Vatican connections, and politically well-connected Mafiosi.

She explained that she often had to contend with the muro di gomma , the “wall of rubber” thrown up by the rich and politically well-connected, when their activities came under investigation. Although feigning cooperation, investigators found themselves bouncing off an invisible “rubber wall” of resistance that had defeated many other prosecutors. Ms. Del Ponte’s success in piercing the muro di gomma protecting Swiss criminal business and political figures was one of her signal achievements, and made her national and international reputation for relentlessness enforcement of the law. Del Ponte’s well-earned reputation as an incorruptible, crime-fighting prosecutor led to her appointment as the Swiss federation’s attorney general in 1994.

For the next five years, she became the scourge of Swiss-bank money-laundering including cases implicating the brother of former President of Mexico, Carlos Salinas; Pakistan’s now deceased Benazir Bhutto; and, various Russian oligarchs. But, according to her own account, she paid only passing attention to the war in Yugoslavia during the 1990’s, except insofar as Kosovo Liberation Army (KLA) operatives were laundering money and trafficking in women and druges “like racketeers” while illegally buying weapons in Switzerland. She explains that her holidays were spent on the French Rivera, in Tuscany and Africa, and her knowledge of the Balkans was not much more comprehensive than other educated Europeans and she had almost no knowledge of African history, or the 1990-94 war in Rwanda, exactly like most Europeans and Americans.

In mid-1999, just as the NATO-bombing of Serbia was coming to an end, Del Ponte’s colleague Jakob Kellenberger, then Swiss Secretary of State, now President of the International Red Cross, asked her to interview for the job as top prosecutor in the Yugoslavia and Rwanda Tribunals to replace Louise Arbour, the incumbent Security Council Prosecutor who was soon to be appointed to Canadian Supreme Court. Kellenberger explained that Security Council members China and Russia objected to any candidate from Canada, the U.S. and the U.K. because NATO bombers had recently destroyed the Chinese embassy and devastated Russia’s Serbian ally. Similarly, the NATO allies on the Security Council, the U.S. and U.K., would not accept a prosecutor from Russia, China, or non-allied countries, many of whom were sympathetic to claims that the NATO-bombing of Yugoslavian cities and infrastructure constituted a war crime. According to Kellenberger, as an experienced prosecutor from a neutral country not implicated in the NATO bombing, and which was not a member of the EU or the United Nations, Del Ponte was he perfect compromise. The members of the Security Council agreed.

Del Ponte was only the third prosecutor to be appointed to the Security Counsel post, Canadian Louise Arbour had replaced the first ICTY-ICTR Prosecutor, South Africa’s Sir Richard Goldstone, in 1996. Del Ponte was appointed to succeed Arbour in August 1999 and moved to the Prosecutors Hague offices in September.

Hitting the US/UK/NATO “Muro di Gomma”

Recounting the numerous interesting and enlightening experiences described by Ms. Del Ponte would give the book away. But, a short synopsis of the a chronology of important events can assist a reader’s understanding of the historical, legal and political meaning of those observations, an aspect missing from the non-chronological vignette-style of the authors.

Shortly after her appointment in the fall of 1999, Ms. Del Ponte had her first “on-the-ground” encounter with the politics underlying the work of the Tribunal when she visited Skopje for the first time in October. The capital of Macedonia, a former Yugoslav republic that escaped the war and the NATO bombing, Skopje became the center of ICTY investigative teams but Del Ponte suspected Macedonian government of harboring Ratko Mladic and others sympathetic to Serbia and the Milosevic government which, like George Tenet of the U.S., promised support but achieved no results.

Her next stop was Pristina, the capital of the Serbian Province of Kosovo which, by 1999, had become a retaliatory Serbian civilian killing-ground, as the same group she had sought to prosecute for financial crimes, gun-running, drug-dealing and human sexual slavery in Switzerland a few months before, the NATO-favored, ethnically-Albanian, Kosovo Liberation Army:

were behaving like lynch mobs, kidnapping and killing Serbs and members of other
ethnic groups, notably the Roma, simply for their ethnicity. Albanians even
attacked Serbs traveling in convoys under the protection of the NATO
peacekeeping force in Kosovo.[7]

Like her first meeting with Tenet at about the same time, Del Ponte also received verbal assurances of support for assistance in prosecuting crimes committed in the Balkans. Bernard Kouchner head of the UN mission in Kosovo promised assistance with KLA crimes. The three-member Serb/Croat/Muslim collective Presidency promised assistance in Bosnia-Herzegovina. The Republika Srpska Prime Minister also promised assistance, as did a representative of dying Croatian President Tudjman; and the Montenegrin Prime Minister.

Only the Yugoslav Ministry of Justice flatly rejected the ICY Prosecutor in a letter claiming that “the so-called Hague Tribunal, is an illegal institution founded contrary to the provisions of the Charter of the United Nations and international law as a whole…”[8] According to Del Ponte, the letter ended with an appeal to indict NATO leaders of the March to June 1999 bombing campaign of Serbia, which had resulted in many civilian deaths and the destruction of civilian infrastructure.

The first meeting with George Tenet recounted in the Prologue occurred at about that same time and, although none of the other governments approached had openly rejected cooperation, no results were forthcoming. Apparently, other than the Serbian Justice Minister none of the other leaders she approached were any more forthright than Tenet had been in their first meeting. It was not until their second meeting in 2001 that Tenet really “didn’t give a shit what she thought” any more than the Justice Minister, but he just hadn’t said so yet.

In any case, by the summer of 2000 her investigative efforts were brought to a standstill by a “wall of rubber” like she faced when investigating corruption and organized crime in Switzerland. But, unlike Switzerland, this muro di gomma was not created by petty-criminals, or even corrupt politicians and bankers. Ms. Del Ponte was facing a muro di gomma created by many different nation-states, all of whom found in necessary to put the foreign and domestic policies of their nations ahead of cooperation with Madame Prosecutor, including the world’s most powerful nation. As Ms. Del Ponte trenchantly observed, “….political leaders in the Balkans are not the only ones who exploit nationalism to score cheap points with the voters.”[9]

However, Yugoslavia’s claim that Security Council-created tribunals violated the United Nations Charter was not without foundation. This was precisely the same argument raised by former U.S. Attorney General Ramsey Clark before the Rwanda Tribunal at about the same time. And, in fact, the UN Charter creates a World Court to solve disputes between nations, but it does not create a UN tribunal that can impose criminal sanctions on individuals. The only way the Security Council tribunals have been able to justify their own existence has been by interpreting Security Council UN Charter Chapter VII peace-keeping authority to extend to the creation of such tribunals.

But, perhaps more importantly, the Yugoslav government was not alone in claiming that NATO bombing if civilians, civilian infrastructure, and even the Chinese embassy constituted war crimes. Del Ponte describes hundreds of letters she received from persons all over the world, including NATO countries, which documents the killing if nearly 500 civilians, including the attack on passenger train, after the bridge it was crossing had already been destroyed.[10] She also confirms a December 6, 1999 newspaper interview in which she was asked whether she was prepared to charge NATO, to which she replied:

If I am not willing to do that, I am not in the right place. I must give up my
mission.[11]

But, shortly after making this legally correct and brave statement, Ms. Del Ponte was confronted with a muro di gomma, unlike any she had encountered as Switzerland’s attorney general. She received dismissive responses from NATO secretary-general Lord John Robinson and “quickly concluded that it was impossible to investigate NATO, because NATO and its member states would not cooperate with us.” But she also learned something more, in her own words:

Over and above this, however, I learned that I had collided with the edge of the
political universe in which the tribunal was allowed to function. IF I
went forward with an investigation of NATO, I would not only fail with this
investigative effort, I would render my office incapable of crimes committed by
local forces during the wars of the 1990’s.

The committee she appointed, headed by William Fenrick, a prosecutor supplied by the Canadian government, itself a NATO member, reported that NATO’s use of “cluster bombs” against civilians was not a war crime, nor was the use of depleted uranium weapons. Curiously, Del Ponte seems oblivious to the apparent conflict-of-interest in having former employees of NATO member governments, or citizens of NATO countries, investigating the crimes of NATO, particularly when professional prosecutors, like Fenwick, are likely to seek government, or even NATO, positions or recommendations later in their careers.

But, Del Ponte seemed a bit shocked when the committee never reached the question of the overall legality [of] NATO’s bombing of Yugoslavia because:

even if it were found to be unlawful, it would constitute a “crime against
peace” a category of law over which the tribunal has no jurisdiction….committee
members agreed that no further investigation [of the bombing of the passenger
train] was warranted because no….further investigation would ever lead to
prosecution of persons higher up in the chain of command.[12]

After receiving the report Del Ponte says she concluded she had hit the mother of all muro di gommas,

We had no cooperation from anybody, none, from anybody [apparently including her own staff] --- this was the technical problem. And, it was impossible to go on
politically without undermining the rest of the tribunal’s work. I could
discount the political considerations because of the technical impediment.

This is perhaps the greatest weakness of the book, that causes a careful, politically conscious reader to wonder whether Del Ponte and Sudetic intended to unmask the “victor’s justice” of the fundamentally politically motivated and manipulated undertaking that she reveals the Security Council tribunal to be or whether she and Sudetic are really are naïve enough to believe that the failure of governments, complicit in apparent war crimes, to cooperate with her efforts to investigate themselves is really a “technical impediment”? If both of the authors are unable to see this problem as the fundamental structural problem at the heart of all international tribunals that it obviously must be, it is lacunae of the proportions of a “black whole.”

No matter which is the case, when she publicly announced not prosecute NATO in the summer of 2000, she was perfectly willing, as she says, to overlook or justify the crimes of the powerful because, if she had prosecuted the NATO crimes:

[in]the political universe in which the tribunal was allowed to function….I would not only fail with this investigative effort [of NATO]t, I would render my office incapable of crimes committed by local forces during the wars of the 1990’s.

There is no escaping the conclusion that consciously, or unconsciously, the incorruptible Swiss prosecutor had succumbed to the most attractive, and expeditious alternative, that permitted her to keep her job and its perks, and her international standing as the “scourge of impunity.” But, quietly permitting self –interested individuals and governments to “shape” the direction of her ICTY prosecutions, she committed fundamental sin of prosecutors worldwide that she had never committed in her previous life. Carla Del Ponte, the Swiss Attorney General, would never have permitted the “Vatican” to determine the course her investigation of the Vatican’s town bank.

One imagines, from her own description of her career in Switzerland, had Del Ponte found that it was impossible to investigate the Vatican Bank because of papal or Vatican influence in the Swiss government, she would have resigned, or at least publicly exposed the manipulation. However, as a Security Council-appointed prosecutor she failed to do either, and one once can only speculate how world history would be different had she “gone public” at the time the manipulations were occurring? Of course, had she done so, the Security Council “political universe” would have expelled her from their club in short order.

But, the events Ms. Del Ponte describes reveals a much, much deeper failing in the structure of international tribunals, than the personal failing of an individual. It is difficult to imagine a more independent and incorruptible person than Del Ponte taking up the task of even handedly pursuing crimes committed by leaders of the governments of the world.

Rather, in light of Carla Del Ponte’s admission that Security Council members, themselves, made it practically impossible to do her job, Del Ponte’s memoir is the most powerful indictment possible, of the Security Council tribunals that are agents of “victor’s justice” and as institutions established to create “impunity” for favored national leaders, and necessarily so. But, there are other important revelations in her memoirs, as well, not the least of which is the description of how her indictment of Slobodan Milosevic was thwarted by the United States during the period he was found useful to U.S. foreign policy interests, before, during and after the Dayton Accords.

Del Ponte and Sudetic recount many other very interesting and informative out-of-sequence vignettes. However, once the series of vignettes are placed in their chronological sequence, and related to other events occurring at or about the same time, the overall story become compelling indeed. Ms. Del Ponte reveals exactly how the ICTY proceedings were influenced by NATO members of the Security Council, to the benefit of defendants from NATO allies Croatia, Kosovo, Bosnia-Herzgovina and to the detriment defendants from Serbia, the target of NATO’s bombing campaign.

Whether Ms. Del Ponte and Mr. Sudetic understood the importance of the vignettes in their book for establishing the real history of the Security Council tribunals and, by negative example, for the establishment of a real system of international justice, that would hold the powerful just as accountable as the less powerful and the weak, is not at all clear. However, their intentions matters less than the undeniable fact that the book makes the current sorry state of the system of international law, which is actually creating “a culture of impunity for the powerful” that she describes in great first person detail.

But, response of the Security Council to the publication of the Del Ponte and Hartmann books (and its most powerful members, who had their own interests, of course) indicates that someone understands the Del Ponte book in this way, in addition to this reviewer.

Del Ponte at the International Criminal Tribunal for Rwanda

Although most of the book is devoted to ICTY vignettes, Del Ponte’s revelations about her removal from her job Rwanda tribunal by the U.S. and U.K. in 2003 are even more damning. However, without an intimate knowledge of ICTR cases and evidence, it would be difficult, if not impossible, to understand the real import of Del Ponte’s narrative.

Del Ponte proudly quotes her April 2002 opening statement before the ICTR in the Military-1 case, in which she describes the story of the Rwanda Genocide that, not surprisingly, has been the story told by the victors in the 1990-94 year war for power in Rwanda since they seized power in July 1994, with which most readers are probably familiar:

“These four men [Col. Theoneste Bagosora, Col. Anatole Nsengiyumva, Gen. Gratien
Kabiligi and Maj. Aloys Ntabakuze] are among the perpetrators of the genocide….Who is responsible for close to a million deaths in a few months?
Who is responsible for all the other victims mutilated, tortured, raped, left for dead.” The indictment alleged that Bagosora and other commanders on trial were part of a group of senior Hutu officers who had, for several years, planned the systematic extermination of the Tutsi’s and moderate Hutus in order to secure the Hutu Extremist’s political dominance of the country…[13]

Of course, when she told this well-accepted story in her Military-1 trial opening statement in the spring of 2002, she could not have known what evidence would be presented in the trial, or what the outcome would be. Nor could she have knows of the Military-1 Final Judgement when she was writing the original book publishedin early 2008; and, perhaps even when she and Sudetic were preparing the U.S. book for early 2009 publication, she may not have known that this entire story would be proved false in the final Judgement in that same Military-1 trial in December 2008.[14]

The Military-1 Final Judgement in late 2008:
“No Planning, No Conspiracy….No Genocide”?


In fact, after more than 6-years of trial before the ICTR, Bagosora and the other military officers in the same Military-1 trial in which Del Ponte made this opening statement were acquitted of all charges related to “planning or conspiring” to exterminate any civilians, either Hutu or Tutsi. And, the senior ranking officer in the Military-1 trial, General Gratien Kabiligi, was acquitted of all charges! The defense team of Major Aloys Ntabakuze,[15] another of the four of the Military-1 defendants introduced into evidence contemporaneous UN and U.S. government documents and sworn testimony of eye-witnesses, that the Rwandan Patriotic Front army of former General Paul Kagame, in power in Rwanda today, was the militarily-superior aggressor[16] that initiated the civilian killings by assassinating the former President as part of their war plan.[17]

And, that during the course of the 90-day genocide from April to July 1994, that Kagame rejected numerous ceasefire offers from side that was on the military defensive, to use both armies to stop the civilian killings early on. According to the testimony and writings of Gen. Romeo Dallaire, the Canadian commander of UN Security Council peacekeeping forces who was in Rwanda at the time. General Kagame quite reasonably rejected the ceasefire offers “because he was winning the war”…against a less militarily powerful army that lacked the capacity to repel the RPF assault and stop massacres behind their own lines, or to stop the now well-documented massacres in the 1/3 to 1/2 of the country controlled by the RPF by mid-April.

Rather the Military-1 Judgement found that, rather than evidence of a criminal conspiracy, the overall policies of the Rwandan military and the officers on trial, were completely consistent with those of an army the nation defending against an invading force.[18] After having heard evidence for nearly 5 years following Ms. Del Ponte’s impassioned opening statement, the judges of the tribunal were forced to conclude that she was simply wrong, on the evidence. But, these were all developments she could not have known, unless she had kept close watch on the Military-1 case after she was removed from her ICTR post by the U.S. and U.K. in the fall of 2003.

However, her book does confirm that the RPF army did invade Rwanda from Uganda, with the help of Uganda and, necessarily, those countries providing support for Uganda,[19] which then, and now, would be the U.S. and the U.K.[20] She also confirms that Rwanda’s current President, Paul Kagame was responsible for the killing of the entire Catholic leadership of Rwanda in June 1994.[21] She also describes the findings of her ICTR Special Investigations unit which identified at least 13 RPF mass-murder sites, and that she recommended the prosecution of high-ranking members of the current Rwandan government based on evidence long-held in the Prosecutor’s files.[22]

Del Ponte also describes the evidence in the ICTR Prosecutor’s files that Paul Kagame, the current president of Rwanda, assassinated the previous President of Rwanda, Juvenal Habyarimana, as well as the President of neighboring Burundi and senior military staff, when he ordered the shootdown of Habyarimana’s plane on April 6, 1994.[23] There is no dispute that it was the shooting down of the plane carrying the two presidents was the “spark” that ignited the civilian-on-civilian killings between April and July 1994, now known as the “Rwandan genocide.” [24] Of course, this paints a very different picture of “the genocide” than has been told by the side that won the war.

But, no one should be surprised that the story of the any war would be told the victors, this is an historical truism. And, another truism is that “war-time truth often emerges long after the war is over. The more troubling question is it that the Security Council tribunal has come to be involved in shaping history by telling a story required to fit the needs of the victorious RPF, and their major power allies.? This is the real value of the Del Ponte book. For the first time, Ms. Del Ponte reveals exactly why the Security Council tribunal has seen fit to provide impunity for the victors, and condemnation for the vanquished, in the narrative describing her removal from her ICTR post in 2003 by the Security Council, at the insistence of the U.S. and U.K., the major long-term sponsors of the RPF before, and after, the war.

After having capitulated to the “technical” and political realties of the ICTY, which prevented investigating or prosecuting NATO crimes, Del Ponte found herself in a similar situation at the ICTR. In November 1999 she learned that French examining magistrate, Jean-Louis Bruguiere, a trusted colleague who achieved renown for prosecuting Carlos the Jackal and other terrorists, had opened an investigation into the assassination of Habyarimana that pointed to Kagame’s troops, and perhaps Kagame himself. Acting independently without the assistance of Security Council member intelligence or investigative agencies, her Chief Investigator Laurent Walpen developed evidence of RPF crimes with “[e]stimates of the dead stood in the tens of thousands.”[25]

Del Ponte describes the many roadblocks to her investigations which were quite understandably being thrown up by the Rwandan government: …because President Kagame and the other Tutsi leaders had staked so much of their claim to political legitimacy upon the RPF’s victory over the genocidaires in 1994. And they were marketing their takeover of the country as a righteous struggle to halt the genocide.[26]

But, without much explanation, she also describes how U.S. intelligence agencies were assisting the Rwandans in compromising the security of the ICTR Prosecutor’s Office and their investigations: We knew the Rwandan Intelligence service had received monitoring devices from the United States and was using them to compromise our telephone, fax and Internet traffic. [27]


By May 2002, Bruguiere had the evidence to indict Kagame and provided it to Del Ponte, because Heads of State could not be prosecuted under French law, a month after the Military-1 trial had begun on April 2, 2002. The timing was ironic because, at the same time Louise Arbour had received, and rejected, the recommendation to prosecute Kagame in early 1997, she had also received recommendations from the same investigative team to prosecute Colonel Bagosora and Colonel Nsengiyumva of the vanquished Force Armee Rwandese (FAR).

The trial of these defendants was just getting underway some six years later at about the same time Del Ponte was receiving the evidence from Judge Bruguiere of Kagame’s culpability for Habyarimana’s assassination, which was largely the same evidence that had been suppressed by her predecessor Louise Arbour in 1997. Apparently, Arbour had apparently informed Del Ponte that she had concluded the tribunal lacked jurisdiction over the assassination because it was a political act, not a war crime.[28] A legal assessment not unlike that Del Ponte had received from another Canadian regarding NATO war crimes in Yugoslavia.[29]

Although Del Ponte seems not to agree with this assessment because she did continue investigating Kagame, but Del Ponte does not reveal whether Arbour ever told her about the Hourigan team’s recommendation to prosecute Kagame in 1997. And, Del Ponte seems completely unaware that, as a NATO member and close ally of both the U.S. and U.K., Canada could not actually have been neutral party in the Rwanda conflict, particularly since a Canadian general had commanded UN peacekeepers in Rwanda during the war. It is unlikely that a future Justice of the Canadian Supreme Court would offer a legal opinion contrary to the interests of her own government’s foreign policy arrangements.

The U.S./U.K./Rwandan “Muro di Gomma” Ends Del Ponte’s ICTR Career

But, Del Ponte is nothing, if not persistent and indefatigable in pursuit of crime and criminals, wherever the facts may lead, at least outside the investigation of NATO, described earlier. In early June 2002, Del Ponte’s continuing investigations of Kagame and the RPF resulted in the Rwanda government cutting off the flow of all witnesses to the ICTR. Under Kagame’s rule, even today, it is still not possible to leave the country under UN auspices without informing the Rwandan government. But cutting off witnesses against his former adversaries, Kagame succeeded in ”…blackmailing the tribunal…in order to halt the Office of the Prosecutor’s Special Investigation of crimes allegedly committed by…the RPF in 1994.”[30] According to Del Ponte:

…halting the genocide trials was the Rwandan government’s objective, so long as
there was a possibility that the tribunal would indict Tutsi leaders and army
officers. The motive, it seemed, was preserving the Tutsi regime’s
legitimacy and, by extension the rule of President Paul Kagame.[31]

At about the same time, Ken Roth, the President of Human Rights Watch (which has now has established cordial relations with Kagame) wrote a letter to the then-President of the Security Council, U.S. Ambassador John Negroponte, explaining why the Rwandan government could not be trusted to investigate its own war crimes, explaining:

Victims of RPF crimes have virtually no chance of obtaining justice in any
Rwandan court…Failing to provide them justice at the international tribunal as
well, will feed resentment and desire for revenge….”

And so it has.

Two years after seizing power in July 1994, after four years of war, the RPF and Kagame invaded the eastern Congo with troops from Museveni’s Uganda, and have occupied areas 10-times larger that Uganda and Rwanda, themselves. The ongoing war in the Congo, in which more than 5 million have been killed, has been fueled by Rwandan and Uganda military occupation and the economic rape of the Congo, documented in reports to the Security Council in 2001[32], 2002[33], 2003[34] and December 8, 2008,[35] which explains the relative prosperity observable by tourists visiting Kigali and Kampala, in addition to aid from Uganda’s and Rwanda’s NATO-member sponsors.[36]

On July 23, 2002, Del Ponte publicly reported to the Security Council that she suspected Kagame and his forces of having committed crimes, and that Rwanda as blocking investigations and that, “the Prosecutor is effectively unable…to achieve the investigation of crimes alleged to have been committed by the Rwandan Patriotic [Front] in 1994.”[37] By November 2002, Del Ponte went public in exposing the refusal of the Kagame government to cooperate her investigations into the crimes, allegedly committed by them or their own compatriots.[38]

In the interim, an agreement with the Rwandan government that the ICTR Judges would not permit defence lawyers to aggressively cross-examine witnesses and other concessionary measures,[39] was negotiated by the Registrar and then-President of the Tribunal, Norwegian judge Eric Mose, who was also the presiding judge in the Military-1 case.[40] Although this agreement and its terms is not mentioned by Ms. Del Ponte, she notes that the Rwandan government again witnesses to travel to the ICTR and, although Special Investigations continued the muro di gomma could not be breached and the investigations made but made little headway.

On March 3, 2003, the U.S. State Department announced a new area of cooperation between the U.S. and Rwanda, in the form of a signed a “bi-lateral” agreement, initiated by the Bush administration, to exempt each others citizens from prosecution before the International Criminal Court. According to Del Ponte:

“…I suspected that, in return for Rwanda’s signature on the agreement, President
Kagame had sought United States support in the campaign to prevent the Rwanda
tribunal from completing its Special Investigation and bringing indictments
against senior Rwandan military officers, and perhaps Kagame himself, in
connection with massacres the Tutsis had allegedly committed in 1994.

Whether Del Ponte is correct in her assessment of the quid pro quo between the U.S. and Rwanda in May 2003, a “special relationship” had existed between the U.S. and the Kagame government for more than a decade. After Kagame seized power in July 1994, Rwanda became one of the largest recipients of U.S. and U.K. militaryand economic assistance in the Africa, per capita, which it remains today.[41]


In May 15, 2003, Del Ponte was called to the State Department by U.S. Ambassador for War Crimes Pierre Prosper, to meet with senior members of the Rwandan government to discuss “cooperation between the Office of the Prosecutor and Rwanda’s government.”[42] Prosper was no stranger to the ICTR Officer of the Prosecutor, he had been assigned by the Justice Department to prosecute the Akeyesu case that concluded early in Del Ponte’s term. It was the first case at the ICTR to go to trial, and resulted in history’s first conviction for “genocide.”[43] Prosper must also have long been aware of the RPF crimes that were being investigated within the Office of the Prosecutor.

Rather than a discussing “cooperation,” the Rwandans demanded Del Ponte end all investigations of Kagame and the RPF. Prosper apparently went farther and asked her to turn over her investigative files to the very government she was investigating and presented Del Ponte with a “draft agreement” and intimated that she should sign on the spot. She would not.[44]

Later the same day, at a reception of the Swiss ambassador, Prosper again approached Del Ponte and informed her that she would not be re-appointed to the Rwanda tribunal and that her mandate at the Yugoslavia tribunal would be for no more than 2 years. According to Del Ponte:

So now, it was not just the Rwandans who were involving themselves in
blackmail…I had just refused to refrain from bringing indictments against a
number of Serb generals. And here I was refusing to cede the tribunal’s
authority to investigate the Tutsi-dominated RPF. These prosecutions, in
one way or another, involved disturbing a developing political status quo that
people in the diplomatic community wanted to develop further.

On May 20, 2003 Del Ponte received a State Department fax stating that the Rwandan government would share investigative information with the Office of the Prosecutor, but that the Office of the Prosecutor should provide the Rwandan government with their investigative files and agree not to prosecute RPF crimes unless the Rwandan prosecutions were not “genuine.” She again refused to agree, and she began getting reports that the United States had begun to lobby against her re-appointment, which was coming up in a matter of months in the fall of 2003.

By July 2, 2003, Del Ponte was informed by UK Ambassador Colin Budd that his government had requested that Kofi Annan appoint a replacement for Del Ponte at the ICTR for reasons of “efficiency.” According to Del Ponte:

Budd said nothing about the real reason for the proposed changes: the Rwandan
government’s opposition to the Special Investigation of alleged atrocities by
members of the RPF.[45]

By the end of July, the New York Times cited unnamed Western diplomats and tribunal sources as saying the Rwandan government had won support from the United States and the United Kingdom for removing Del Ponte and British diplomats had said that the change in Prosecutors would include dropping of investigations of the RPF.[46] Del Ponte flew to New York to meet with Kofi Annan, but was told by Ralph Zacklin of the Office of Legal Affairs that Annan would propose that she be replaced.

According to Del Ponte, Zacklin agreed with her complaints that Security Council politics were interfering with fulfilling her mandate to prosecute all crimes committed in Rwanda during 1994. “You are right” she quotes him as saying, “but you lose.” Del Ponte was removed from office on August 28, 2003, when the Security Council passed Resolution 1503, and she was replaced by Hassan Abubacar Jallow, a Gambian Supreme Court Justice. Since Jallow replaced Del Ponte, none of the members of the victorious RPF army or the Kagame government have been indicted at the ICTR.

The “Rwanda Genocide Cover-Up” Begins to Unravel

Although Prosecutor Jallow has scrupulously followed the instructions from the U.S. State Department that Del Ponte rejected, he has admitted in the public Security Council meeting in June 2008 that the RPF did kill the Catholic leadership of Rwanda in June 1994.[47] And, In November 2007, Judge Bruguiere issued an indictment for members of the RPF assassination team that shot down President Habyarimana’s and triggered the civilian killings. [48]

In February 2008, Spanish Judge Mereles Abreu issued another detailed 182-page indictment naming Kagame and his followers as responsible for more than 300,000 civilian deaths.[49] And, the documentary evidence from UN and U.S. government files that is in the record in the Military-1 trial has made it impossible for Trial Chamber-1 to convict members of the vanquished military for the central charges against them, “conspiracy and planning to massacre civilians.”[50]

ICTR Military-1 Trial Evidence Further Exposes the Cover-up

Since Ms. Del Ponte has not been involved in the Military-1 case since the fall of 2003, and has probably not been informed of its proceedings, she might not know that the evidentiary record at that case confirms that Ms. Del Ponte’s predecessor, Louise Arbour had received recommendations to prosecute Kagame in January 1997, from an investigative team made up of Chief ICTR Investigative Prosecutor Michael Hourigan (an Australian Crown Prosecutor); retired FBI Agent James Lyons; and, former UN Military Intelligence Officer Amadou Deme.[51]

And according to sworn affidavits filed by all three, two days after receiving the evidence on Kagame, Arbour informed them to drop the investigation and turn any notes over to her. She then disbanded the investigative team and all three resigned in short order. And, although the affidavits and copies of the report were placed in evidence in the Military-1 trial in late 2006 and early 2007, the official story repeated ad nauseum in the western press, continues to be that “no one knows who killed Habyarimana.” And, despite this evidence in the possession of Ms. Del Ponte’s ICTR Office, in the Fall of 2005, a Canadian prosecutor in the Militiary-1 trial, Drew White, publicly accused Bagosora of assassinating their own president during his cross-examination of Bagosora and, by implication the rest of the supposed “co-conspirators.”[52] This despite the indisputable evidence that ICTR Prosecutor Louise Arbour had know since 1997, and Ms. Del Ponte had known since 2002, that the real culprit was Kagame.[53]

But there is more. Documents in evidence in the Military-1 trial show that the United Nations High Commissioner for Refugees (UNCHR) had reports as early as May 17, 1994 that the invading army of Paul Kagame was killing tens of thousands of civilians.[54] And, a USAID-sponsored investigation reported to Secretary of State Warren Christopher on September 10, 1994 that the victorious Kagame forces had been killing at least “10,000 a civilians a month” in a small part of Rwanda they had controlled since mid-April.[55] The U.S. State Department, the Pentagon and, presumably, the U.K have known since at least September 1994 that the ally they have found in Kagame was responsible for touching off the “genocide” and massive civilian killings even before the ICTR was authorized by the Security Council in November 1994![56]

There is much more documentary evidence and sworn testimony in evidence in the Military-1 record that thoroughly debunks the “genocide plan” of the losing side, and demonstrates that the assassination of the former president was the first shot in a long-planned final, blitzkrieg-style RPF assault to seize power.[57] UN documents confirm that all military observers understood that the RPF has established military superiority as early as February 1993, and could take power whenever French and Belgian military advisors left Rwanda.[58] This occurred when the Security Council replaced the French and Belgians with UN peacekeepers in late 2003. Militarily the timing of the final assault was just a matter of time.

It is not clear that Ms. Del Ponte knew that Louis Arbour had suppressed the investigation of Kagame for the assassination of Habyarima, nor is it clear that the UN, the U.S. State Department, Pentagon or CIA shared with her what they knew about the crimes committed by their ally, beyond the 13 massacre sites turned-up by her own investigators. However, what is clear is that such investigations cannot go forward in any international tribunal, if they are not in the interests of leading Security Council members, whether for reasons labeled “technical” or political.

The Meaning Del Ponte’s Memoirs: the Future of International Tribunals
There are numerous imperfections in the Del Ponte-Sudetic book other than the oblique description of historic events, and Ms. Del Ponte’s apparent unwillingness to conclude what her memoir seems to suggest: i.e. that international tribunals are inextricably bound by power relationships in international affairs and cannot mete out anything other than “victor’s justice,” as long as powerful nations continue to assert their own interests. But, this cannot detract from her detailed account of how the “sausage” of international justice is actually produced. The book should cause those who view international criminal prosecutions as means of ending the “culture of impunity” some pause, as does Ms. Del Ponte. Ms. Del Ponte’s own book reveals that modern supposedly “neutral” international undertakings, not unlike the Nuremburg and Tokyo tribunals that stripped “impunity” from German and Japanese leaders but created impunity for the crimes of the victorious Allies, impunity for the powerful remains unchallenged. But, the UN Security Council tribunals, and the ICC, were supposed to be different. But, the Del Ponte book, and Florence Hartmann’s as well, make clear that in terms of the “victors justice” meted out at the Nuremburg and Tokyo tribunals, the post WW-II were more honest in their stated, and actual, purpose….judging and demonizing the vanquished,.

Even in the International Criminal Court, which unlike the Security Council’s ICTY and ICTR, is a product of the Treaty of Rome to which some 150 nations are party, is not immune from same “influence of power” bias. By design, ICC cases must be either referred to the by the Security Council, as was the indictment of Sudan’s President Bashir, or by a state party for crimes committed in their national territory, which are then taken-up a Prosecutor, who is answerable to the states that are parties to the Treaty. As a result, the ICC indictments issued thus far are for leaders of movements that oppose current African governments, the politically less-powerful in their domestic context.

In the case of Bashir, even though Sudan is not a party to the ICC Treaty and can neither refer cases, nor be bound by the tribunal established by the Treaty. This is the same position in which the U.S. and other members of the Security Council have adopted but, as members of the Security Council, the retain the power to refer the less-favored for ICC prosecution, as has occurred with Bashir and has not occurred with President Bush or other U.S. leaders.

The fundamental inequities built into the jurisdictional powers of the ICC, and the application of ICC powers to single out only African defendants at this point has caused the Organization of African Unity to vote not to cooperate with the ICC, going forward. Which, given the experiences related in Ms. Del Ponte’s memoirs, and the recent developments in the Military-1 trial at the ICTR, non-cooperation may be the only way to help reduce the “culture of impunity for the powerful” being created in the name of international justice.

Prof. Peter Erlinder
Wm. Mitchell College of Law
St. Paul, MN 55105
651-290-6384
peter.erlinder@wmitchell.edu

UN-ICTR Lead Defence Counsel, Arusha, TZ
President, Association des Avocats de la Defence, Arusha TZ
Past-President, National Lawyers Guild, NY

Notes:
[1] Carla Del Ponte was the Chief Prosecutor in the UN Security Council Ad Hoc Tribunal for Rwanda 1999-2003 and Yugoslavia 1999-2007.
[2] Prof. of Law, Wm. Mitchell College of Law, St. Paul, MN, Lead Defence Counsel at the UN International Criminal Tribunal for Rwanda and President of ADAD (Association des Avocats de la Defence) the ICTR Defence Lawyers Association.
[3] Hartmann, Paix et Chatiment, (Flammarion, Paris, 2007)
[4] See, Kingsley C. Moghalu, Rwanda’s Genocide: The Politics of Global Justice, (Palgrave MacMillan 2005); Ralph Zacklin, The Failings of Ad Hoc International Tribunals, 2 J. of Int’l. Crim. Justice, 541 (2004)
[5] Former ICTY Spokesperson in Dock for Contempt of Court, Hirondelle News Agency (Swiss), October 28, 2008. See also, Hague court charges ex-official: A former spokeswoman for the United Nations war crimes court in the Hage has been charged with revealing confidential information, BBC, August 28, 2008
[6]
[7] P.44
[8] P. 57
[9]
[10] 59
[11] Id.
[12] 61
[13] 223
[14] ICTR Military-1 Exhibit: DNT 365. March 8, 2007 sworn affidavit of Australian Barrister and former Queen’s Prosecutor, Michael Hourigan. Proposed Exhibit: DNT 366. Affidavit of Major Amadou Deme, former UNAMIR Chief Military Intelligence Officer under General Dalliare. Affidavit of former FBI Special Agent James Lyons dated April 6, 2001.
[15] In the interest of full disclosure, this reviewer is Lead Counsel for Major Ntabakuze and is largely responsible for locating these contemporaneous documents and other evidence that made convictions for conspiracy and planning genocide, impossible.
[16] ICTR Military-1 Exhibit DB-71. UNAMIR Reconnaisance Report of September 1993, authored by Canadian Lt. General Romeo Dallaire, UNAMIR Force Commander
[17] ICTR Military-1 Exhibit DNT 315. April 7, 1994 cable from U.S. Ambassador Prudence Bushnell, “ If, as it appears, both Presidents have been killed, there is a stong likelihood that widespread violence could break out in either or both countries, particularly if it is confirmed that the plane was shot down.” Emphasis added.
[18]. Prosecutor v. Bagosora et al written ICTR Judgement of Trial Chamber 1, February 9, 2009, pp. _____.
[19]
[20]
[21]
[22]
[23]
[24]
[25] 182. This same evidence was apparently provided to Ms. Del Ponte’s predecessor, Louise Arbour in January 1997 who suppressed the evidence, stopped the investigation and disbanded the investigative team that made the recommendation that Kagame be prosecuted for the
assassination of Habyarimana, as described herein. Ms. Del Ponte does not reveal whether she was aware of Ms. Arbour’s suppression of the earlier investigation of Kagame.
[26] 183
[27] Id.
[28]
[29]
[30] Id.
[31] Id. Kagame was effectively elected President for Life in the fall of 2003, in an elections that including the jailing of all political opponents, as reported by EU election observers, with were not unlike election of Robert Mugabe in Zimbabwe five-years later,
[32]
[33]
[34]
[35]
[36] Blair, David, British ally behind world’s bloodiest conflict, UK Telegraph, April 29,2006. As of three years ago, Uganda was the fourth largest recipient of British aid.
[37] 227
[38]
[39]
[40] The curious structure of the ICTR and ICTY require the election of the Tribunal President to be judge, elected by the other judges. But, once elected to the administrative position, the President is not recused from cases upon which he or she has been sitting, thus confusing the roles of administrator and jurist. This apparent, inherent conflict of interest has lead to the then-President of the ICTR, Judge Mose, appearing before tens of thousands of Rwanans in the largest sports stadium in the county the dias of the with President Kagame in Kigali on April 6, 2004 to share in the 10-year anniversary commemorating “genocide victims.”
[41] The U.S. had publicly begun joint military exercises with the RPF within weeks after Kagame seized power in July 1994, and had been studying at the U.S. Army War College in Ft. Leavenworth when he returned to lead the RPF invasion of Rwanda in 1990. This followed years of U.S./U.K. military and economic support for the Museveni regime in Uganda, in which Kagame had been the chief of military intelligence between 1986 and 1990. In 1990 Kagame’s forces invaded, Rwanda had an army of about 6-7,000 troops and French advisors. In 2009, Rwanda now as an army of some 100,000 troops, with U.S. advisors, that is engaged all over the continent, and Uganda and Rwanda are sources of English-speaking African private military-contractors in Iraq.
[42] 231
[43] P.
[44] 231-32
45] 236
[46]
[47]
[48]
[49]
[50]
[51]
[52] Cross examination of Theoneste Bagosora by OTP Drew White, also of Canada, November 2005 ??
[53] See, supra.
[54]
[55]
[56]
[57]
[58]