Locked Up in Rwanda

An American lawyer is arrested in Kigali for genocide denial. Is it a sign of President Paul Kagame's creeping authoritarianism?

On Friday, American lawyer C. Peter Erlinder was arrested by the Rwandan government for allegedly denying the country's 1994 genocide. He had come to Kigali to meet with his client, opposition leader and hopeful presidential candidate Victoire Ingabire Umuhoza, who had been arrested on similar charges of negationism earlier this year. Many have speculated that the government is turning up the pressure on the opposition in advance of presidential elections, scheduled for August 9, 2010, which incumbent President Paul Kagame is widely expected to win.

Erlinder had caught the attention of the government far earlier than this most recent trip, however. A professor at William Mitchell College of Law in St. Paul, Erlinder first began working on Rwanda in 2003, when he took up the case of Aloys Ntabaluze, a defendant accused of crimes against humanity, genocide, and war crimes at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. After intense investigations, his defense team drafted what court documents call an "alternative explanation of the tragic events in Rwanda during the four year war." The defense's trial brief includes a section linking then-General Kagame to the shooting down of a plane carrying Rwandan President Juvénal Habyarimana and Burundian President Cyprien Ntaryamira in 1994 -- an assassination that triggered the genocide. "[I]mportantly from the standpoint of fixing central responsibility for the massacres that the assassination of President Habyarimana touched off, these acts were undertaken with full knowledge on the part of Gen. Kagame that resumption of the war would cause massive civilian casualties," the defense states (italics from original text).

There has long been ambiguity surrounding the downing of Habyarimana's plane and the events that precipitated the genocide. And though ordinary Rwandans and international conspiracy theorists have long debated the mysterious and cynical assassination, any attempt to investigate or prosecute the facts under the current Kagame government is a non-starter.

So it was little surprise that Erlinder's digging put him on the Kagame government's bad side, says the lawyer's daughter, Sarah, in an interview with Foreign Policy. And Erlinder did more than dig: In late April, when Kagame visited the United States to offer a commencement address at Oklahoma Christian University, Erlinder and several other American lawyers attempted to serve the Rwandan president with a lawsuit brought by the widows of Habyarimana and Ntaryamira, alleging his involvement in the 1994 assassination.

Sarah Erlinder argues that her father's incarceration is unjust and shines a light on a county far too long believed to be democratic -- a darling of foreign donors for its recovery from genocide. Instead, she says, this confirms what many of Kagame's critics have long said: that this champion of democracy has an authoritarian side, now becoming all the more apparent.

Foreign Policy: Take us back to how this started. When did your father arrive in Rwanda on this most recent visit?

Sarah Erlinder: He [headed to] Rwanda from Brussels on Sunday [May 23], where he had been at a defense conference that they'd organized for the people working with the International Criminal Tribunal for Rwanda [ICTR]. He arrived in Rwanda with the intention of visiting his client, Victoire Ingabire, and joining her legal team. Ingabire [an opposition candidate] had previously been arrested and accused of [denying the genocide].

FP: How did you hear about the arrest?

SE: There was an email list that my dad was using to send updates on work. We woke up on Friday morning to an email from someone that we didn't recognize saying that he had been arrested. I did a quick Google search, and there were already a couple of articles from the African press. I then called my dad's wife, who had also gotten the e-mail and was also confused.

We got on the phone to the embassy and then to the State Department trying to figure out [what happened.] The first step was just ensuring that they knew, and they had [indeed] been aware. We have also received an update from an American lawyer who wasn't there for the arrest but has met with my dad [since], and who [asked my father] what happened.

The two of them [my father and the other American lawyer] were supposed to leave on Thursday, but the prosecutor summoned Ingabire for questioning on Friday, so they extended their trip.

On Friday morning, the police came to the hotel [where my father was staying] and it sounds like they came to his room and arrested them there. They've kept the room sealed and have inventoried some of his personal belongings. The embassy told us that someone from the embassy was present with him when he was arrested.

The American lawyer and a Rwandan colleague were able to meet him on Saturday. But they were denied access on Sunday. On Monday, two Kenyan lawyers were able to get credentials, so they will be able to go back in and see him. They weren't able to get into the interviews [that the Rwandan police were doing with my father before]. The American got credentials today.

FP: What has been the response of the State Department to the case so far?

SE: The first response from the State Department was that there were certain steps that they follow to make sure that he is physically safe. But after that, Americans are arrested abroad all the time, and they have to let process play out -- which we found unacceptable. This isn't a college kid who got in a fight on spring break in Cancún; this is much more serious. And there is not really a fair, open, judicial process. He's really being held based on statements and writings that he made in the courts representing his client at the ICTR.

The embassy has been responsive to general updates on his well-being. He was brought to the hospital and spent the night there [for high blood pressure] and is back in the jail there now. The embassy sent someone to be with him at the hospital for a while.

FP: Tell us about his client, Aloys Ntabaluze, who he has been representing at the ICTR.

SE: He's been representing [this client] since 2003. He had a friend and colleague who was involved in the ICTR [back then] and suggested that he might be interested. So, my father put his name on the list and got assigned to a case. He went to Arusha in June, 2003, for the first time and saw that the trials had already started and that he wasn't the second-chair counsel but the lead.  

He didn't know a lot more than the average interested person about Rwanda or what had happened there. That's the other thing that's poignant about situation: The Rwandan government has made it sound like he has this agenda, as if he didn't go there as attorney but rather only trotting the globe for his agenda. But everything he's talked about, he uncovered while investigating the case.

[In fact, he began the] Rwanda Document Project online, where anyone can see the documents that he's found. He was trying to make this as open as possible and really shine a light on a closed society and on a very taboo topic. He was putting real hot-button issues [out there]. And if you say, "perhaps the Hollywood Hotel Rwanda narrative that everyone thinks was the way that things happened -- it didn't happen exactly that way," then you're a genocide denier.  

I was so surprised the first time a reporter asked me whether he denied the genocide. This is obviously someone who doesn't know him. He would never do that to the victims, to their families. But is he trying to get information that hasn't been available before to the public? Yes, and that's obviously what's put him in danger now and on the bad side of the Kagame government.

FP: In speaking with the lawyers on the ground, is there speculation that his arrest could be linked with the upcoming presidential elections?

SE: They definitely think so. Timing wise, it's a perfect storm. Leading up to the election, the government is really continuing to tighten down. Even charging the opposition candidate in the first place -- in a free society, we let someone vote for who they want.

Also, Paul Kagame was in Oklahoma last month and my dad and a couple of other lawyers [tried to serve] him a lawsuit under the Alien Torts Claim act on behalf of widows of Juvénal Habyarimana and Cyprien Ntaryamira, both of whom were killed in the plane crash that touched off the genocide there. There are definitely things you can trace [that he did] that would make the Kagame government angry.

My dad was aware of this risk when he went there. He contacted his congressional delegation, the State Department, and the embassy before going to draw attention to his safety. From what we've heard from the attorneys [in Rwanda who had seen him,] he was preparing for the worst, but he can't believe that they did this.

FP: The lawsuit against Kagame -- was that something that your father began working on separately in the United States?

SE: He was working on that on a different front. The things that he had uncovered through his representation at the ICTR -- he kept meeting and talking to more and more people who had known these things for a while and who couldn't talk about them or bring them to light.

The Rwandan government has used intimidation and violence against its own people for a long time, and so the one bright side of this situation is that there are a lot of people who wouldn't ordinarily be paying attention [who are listening now] -- because they've gone far enough this time, and with a U.S. citizen, that people are rightfully outraged. [It is] not acceptable that a local [judicial] process [against my father] would play out there. He's [been arrested for a] speech crime allegedly committed as an attorney. This is not what a free and open society would allow.



Sri Lanka Rejects War Crimes Accusations

Foreign Minister G.L. Peiris tells FP that an International Crisis Group report accusing his government of intentionally killing civilians is "nebulous" and shrouded in a "veil of secrecy."

Some 300,000 civilians were caught up in the final days of the military campaign to end the Tamil Tiger insurgency in Sri Lanka last year. Women, children, and elderly Tamils were shelled, used as human shields, denied access to aid, and shuttled into overcrowded camps. And though much of this has been known for months, on May 19, the International Crisis Group went further in perhaps the most thorough investigation yet. In an explosive report, the organization charged that the "Sri Lankan security forces committed war crimes with top government and military leaders potentially responsible."

The specific charges leveled in the report include the intentional shelling of civilians, hospitals, and humanitarian operations. These actions, the report says, were "made substantially worse by the government's obstruction of food and medical treatment for the civilian population." The report also accuses the Tamil Tigers, known formally as the Liberation Tigers of Tamil Eelam (LTTE), of intentionally killing civilians, though the lion's share of the casualties were government-inflicted. Finally, the report raises the concern that other countries will pursue the "Sri Lankan Option" -- "unrestrained military action, refusal to negotiate, disregard for humanitarian issues -- as a way to deal with insurgencies and other violent groups."

The report came out just ahead of Sri Lankan Foreign Minister G. L. Peiris's visit to the United States, where he is meeting with U.N. Secretary General Ban Ki-moon, U.S. congressional leaders, thinks tanks, and finally Secretary of State Hillary Clinton on Friday. In an exclusive interview with Foreign Policy's Elizabeth Dickinson, he said the Crisis Group's allegations were "nebulous" and politically motivated and dismissed concerns about the arrest of former presidential candidate Sarath Fonseka. Excerpts:

Foreign Policy: What is the purpose of your trip, and how have your goals been received so far?

G. L. Peiris: A whole new situation has arisen with the defeat of terrorism. Sri Lanka is a country with immense potential. Our per capita income in the late 1940s and early 1950s was the highest in that part of the world -- way ahead of Korea, Thailand, and Malaysia. Then we had this problem [of the Tamil Tiger insurgency], which set us back. Now, all of that has been consigned to the past; that's the difference. My visit here is basically to bring [this] to the media's attention.

FP: The International Crisis Group recently released a report documenting allegations that both the Tamil Tiger insurgency and the government were involved in actions that constituted war crimes. What is your response to that report -- and the allegation of war crimes in particular?

GLP: If you look at the report, the allegations are not attributed to any identifiable source, so verification is therefore not just difficult but impossible. There is a kind of veil of secrecy shrouding the sources [in a way] that is destructive of any kind of transparency or verifiability.

Secondly, the report is couched in vague, nebulous language. One sentence in it says that tens of thousands of civilians were killed. What does that mean? Ten thousand? Twenty thousand would be tens of thousands. Ninety thousand also would be tens of thousands.

Thirdly, the timing of [the report] does raise very significant doubts about motivation, about bonda fides. It was clearly intended to coincide with the first anniversary of the cessation of hostilities and the defeat of the LTTE [Tamil Tigers]. The interesting thing is that all this was coinciding with important events that were taking place with crucial repercussions for Sri Lanka: meetings in Brussels on the 20th and 21st with the European Union. [What was at stake was] duty-free entry into the markets of the European Union for a wide range of products from Sri Lanka, particularly apparel products. The European Union had given notice for a possible suspension of these benefits because of human rights violations and allegations.

Then, [there has been] the pressure on the secretary-general of the United Nations, Ban Ki-moon, to nominate a panel of experts [to investigate the situation]. He was being harassed every day. It is a custom of the U.N. to have media briefings every day at noon, so every day he is being inundated with questions.

The president of Sri Lanka has appointed a commission consisting of eight very distinguished people [who can] examine the evidence to see whether any individual or group of personas have been guilty of war crimes. What I told the secretary-general emphatically during my meeting with him is to give it a chance. If there are problems that surface later, shortcomings, deficiencies, then we will come to the U.N. and say: We would like assistance with the following. But don't foist it on us. That will simply make the work of the commission more difficult, and within Sri Lanka there would be public resentment because that attitude would seem patronizing.

FP: Some have suggested that, as part of the reconciliation process, Sri Lanka should give regions more autonomy, particularly the Tamil-dominated north. What is your government's view?

GLP: The policy of the president's government is that any solution has to be within the framework of the unitary state. But within the unitary state, we are going to put in place a political solution that will be fair and equitable to all the communities that live in the country. [We need] to work toward the development of a national identity, a national consciousness.

FP: How is the return of displaced persons from the large camps in which they have been held proceeding?

GLP: In one year's time, we have achieved a great deal. If you look at countries in these kinds of situations, it has taken them 20 years, 30 years. But we started with 297,000 people who had been displaced, and now we have resettled 80 percent of them.

Local government elections could not be held in that part of the country for a long time -- more than a decade -- because of the turbulence. Now we are holding elections in order to provide space for the spontaneous emergence of a genuine Tamil leadership.

FP: After the national presidential election, Gen. Sarath Fonseka, the president's opponent, was arrested. Why did that happen?

GLP: Because General Fonseka, like all of us, is subject to the laws of the land. He contested the election -- these allegations came up earlier. The president was very keen that nothing should be done to prevent [Fonseka] from contesting the election. So he contested the election, and he lost.

FP: When you said "subject to the laws of the land" specifically which law are you talking about?

GLP: He is accused of dishonesty, cheating, criminal misappropriation -- the purchase of arms. He abused his position in order to confer very large benefits on a company that was run by his son-in-law. Those are crimes in your country; they are crimes in our country. And just because a man contests an election does not mean his is exempt from the operation of those laws.

FP: But General Fonseka worked with the president for some time, for example in undertaking the final operations of the campaign against the Tamil Tigers. If these allegations were known, why was he not removed from his position then?

GLP: This evidence came to light at a certain point. While the election campaign was going on, this was known. But had any action been taken during that period, it certainly would have been suggested that these matters were being pursued to harm his campaign, so nothing was done during that period to forestall that criticism. He was allowed to carry on his election campaign without any hindrance whatsoever. The election took place, and he lost -- by a huge margin. Thereafter, the criminal process was set in motion, as indeed it had to be. It could have been done before the election. But we thought that was not right.

FP: What would have happened if he had won?

GLP: If he had won, then he would be the president of the country. So I can't answer that question, because then his government would have had to decide. I can't speak for a government that might have come into being in a hypothetical situation.