THE ILLEGAL ARREST AND DETENTION OF PROFESSOR PETER ERLINDER
Lawyers’ Rights Watch Canada
Gail Davidson, John Cotter, and Brian Cheng
On 28 May 2010, Professor C. Peter Erlinder was arrested in Rwanda for engaging in legitimate criminal defence work for Ms. Victoire Ingabire Umuhoza, a challenger to incumbent President Paul Kagame in the upcoming election in August 2010. In response, Lawyers’ Rights Watch Canada sent a letter to the Rwandan government to demand that the government immediately (1) release Professor Erlinder from custody; (2) withdraw criminal charges against Professor Erlinder; and (3) ensure that Professor Erlinder is protected from any further interference with the legal representation of his client.
Professor Erlinder is a faculty member at William Mitchell College of Law in St. Paul, Minnesota, and president of the UN’s International Criminal Tribunal for Rwanda (“ICTR”). Through his research, he has raised legitimate questions about Rwanda’s official story about the 1994 genocide; in particular, he exposed that both sides of the four-year civil war in Rwanda committed atrocities and that the Tutsis, in fact, killed Hutu civilians. Additionally, in 2006, he wrote a letter to Canadian Prime Minister Stephen Harper, who was hosting a state visit of Rwandan President Paul Kagame, to bring to his attention the repressive nature of President Kagame’s military dictatorship. Furthermore, Professor Erlinder has stated that the Tutsis, who now form the Rwandan government, assassinated the Rwanda’s president in 1994, which precipitated the massacre.
For example, in his trial brief in defence of Major Ntabakuze, Professor Erlinder attacked the official government-sanctioned history when he asserted an alternative explanation for the 1994 massacre:
It is now quite apparent that the invasion from Uganda [by the eventually victorious RPA/F, or Rwanda Patriotic Army and Rwanda Patriotic Front] was driven more by internal Ugandan politics . . . rather than a legitimate effort to democratize Rwanda, or to protect Rwandan “tutsi” from the interior. . . .
[T]he Kagame-led RPA/F engaged in a planned strategy of “guerrilla” warfare with the purpose of . . . destabilizing [then-President] Habyarimana[’s] government [and] seizing power by military force in a final assault initiated by the assassination of President Habyarimana.
. . .
[Acts of sabotage by the RPA/F for the purpose of destabilizing and discrediting the Habyarimana government] included the killing of opposition political leaders and “tutsi” civilians to blame on the Habyarimana government and to demonstrate that the government could no longer ensure security of the population . . . .
. . .
“[T]he final plans to assassinate President Habyarimana had been converted into specific orders from Paul Kagame . . . . The assassination certainly was an act of war, as well as a violation of the cease-fire . . . . These acts were undertaken with full knowledge on the part of Gen. Kagame that resumption of the war would cause massive civilian casualties . . . . Gen. Kagame admitted . . . [that] the predicted civilian massacres were an integral part of his war plan . . . [and that] the RPA/F was not using its troops to save the predicted “tutsi” victims of the renewed combat . . . [because they were] part of the sacrifice for his war plan.
Under Rwandan law, failure to parrot the government’s historical account of the 1994 genocide is considered the equivalent of genocide denial, and as such, is a criminal act, punishable by up to 25 years in prison.
Professor Erlinder had arrived in Rwanda in late May to defend Ms. Ingabire on charges under the 2008 Law Relating to the Punishment of the Crime of Genocide Ideology (“Genocide Ideology Law”). The Rwandan government had alleged that Ms. Ingabire, while visiting a memorial site for murdered Tutsis, had questioned whether there was a memorial for murdered Hutus. Although Ms. Ingabire has now been released, Professor Erlinder has been under arrest since May 28 and has been or will be charged under the same Genocide Ideology Law for which his client was accused of violating. While thousands of Rwandans have been charged with genocide ideology in recent years, this has been the first time that a Westerner has been charged with such a crime. Martin Ngoga, Rwanda’s prosecutor general, has referred to Mr. Erlinder as a “denier” and “revisionist” of the genocide, or at least the official government-sanctioned account of the tragedy.
Currently, Professor Erlinder is being held under harsh prison conditions and has been subjected to police interrogations regarding his work. Although he has been visited by his lawyer, Mr. Kennedy Ogeto, a colleague of his at the ICTR, the attempts to have him released on bail have thus far been unsuccessful. Furthermore, Professor Erlinder has high blood pressure and was scheduled to undergo a medical procedure upon his return to the United States; he has already had to make one visit to the hospital during his time under arrest. Unfortunately, the American government and their Embassy do not seem to be acting on this urgent matter despite their awareness of his predicament and medical condition.
Further concerns have been raised by the report that he was found semi-conscious in his cell and the claim by Rwandan police officials that Erlinder has attempted suicide by overdosing on prescription medication pills: a claim rejected by Erlinder’s family.
The Illegitimacy of the Genocide Ideology Law
Under Rwanda’s Genocide Ideology Law, it is a crime to “create confusion aim[ed] at negating the genocide which occurred [and] stiring [sic] up ill feelings . . . .” As the law criminalizes protected free speech and is overly broad and vague, it should be illegitimate under recognized legal standards. Furthermore, it should be void because the free expression that it purports to criminalize is protected by the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the African Charter on Human and People’s Rights: in fact, failure to parrot the government’s official version of the genocide is considered the equivalent of denying that anything occurred.
Under internationally-accepted principles governing criminal law, a law that is overly broad is void for vagueness. Recognizing this principle, the U.S. Supreme Court struck down a vagrancy statute because it “fail[ed] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” The Court further voiced concern for laws that gave “unfettered discretion” in the hands of the state:
Where . . . there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages the arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.
The Supreme Court of Canada has also recognized that criminal sanctions that “permits a ‘standardless sweep’ that allows law enforcement officials to pursue their personal predilections” are void. The test for vagueness encompasses a requirement of fair notice, an intelligible standard for the judiciary, and a prohibition on uncontrolled discretion.
The Genocide Ideology Law does not give adequate notice, precise definition, or a clear standard as to what constitutes an offence, leaving it to those in charge of the prosecution to fit innocent acts to the words of the law. Furthermore, the statute makes a criminal act out of merely making a comment or asking a question. Therefore, the law appears to create a tool to suppress legitimate free expression.
Furthermore, Rwanda’s courts should not be able to assert jurisdiction over Professor Erlinder and his allegedly criminal remarks. Mr. Ngoga, prosecutor general, claimed that “we have jurisdictional links for statements and publications done outside Rwanda.” Thus, Rwanda is asserting either a type of “universal jurisdiction”—where a state claims the right to adjudicate a violation of universally-accepted norms that are erga omnes or owed to all—or a jurisdiction for purported violation of Rwandan criminal law even though the locus of the alleged crime was outside Rwanda. However, neither type of jurisdiction should apply to Professor Erlinder.
Assertion of a universal jurisdiction is offensive to the accepted view that one has the right to non-violent freedom of expression. Thus, if Rwanda were asserting this type of jurisdiction over Professor Erlinder, it would per se violate his right to free speech.
Assertion of jurisdiction for a criminal violation outside Rwanda is offensive to the accepted view that a state may only properly extend subject-matter jurisdiction as to a criminal offence where some minimum contacts (a “significant physicality” or “physical act” done within the particular physical jurisdiction) were present as to the country bringing the prosecution. For example, a recognized proper application of sufficient minimum contacts is spying against a country, even when the acts are done outside the country being spied upon. Another example is the prosecution for criminal acts committed in another country against the citizens of the prosecuting country, provided that the alleged criminal acts constitute human rights abuses: the prosecution brought by Spanish authorities against Chilean President Pinochet for acts done in Chile against Spanish citizens was one such case.
Because Professor Erlinder’s statements did not take place within Rwanda, and because they did not constitute human rights abuses or rise to the level of spying against a country, they should not be subject to the subject-matter jurisdiction of Rwandan courts. Thus, any jurisdictional claims by Rwanda over Professor Erlinder should be invalid.
The Illegal Arrest and Detention of a Legal Advocate
By allowing the arrest and threatened prosecution of Professor Erlinder, Rwanda is violating a number of internationally protected rights, namely
1. The right of persons accused of a crime to be represented by a lawyer empowered to effectively protect rights and achieve justice ;
2. The right of lawyers to perform their professional functions without intimidation, harassment, or improper interference ;
3. The prohibition against identifying lawyers with their clients’ causes.
The duties of Rwanda and other states to ensure that lawyers can perform their professional duties—particularly when representing unpopular clients and causes—free from political pressure, prosecution and other interference are set out in the Basic Principles on the Role of Lawyers. Article 16 provides,
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
Article 18 ensures that “[l]awyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
Furthermore, statements made by a lawyer in the course of oral or written defence are immune from criminal liability. The acts that form the basis for charges against Mr. Erlinder are statements that he made while acting as a defence attorney while within the territory of Tanzania, as part of the defence team at the International Criminal Tribunal for Rwanda (which is being conducted in Tanzania). Mr. Erlinder’s views as to the facts of the 1994 genocide do not mirror the official history written by the Rwandan Government, and that is where his purported liability under the law arises. Therefore, even if his statements contradicted government-sanctioned historical “fact,” his statements should be immune because they were made in the course of the legal defence of his client.
Without lawyers who are free from fear of adverse consequences for representing people before the courts, the courts cannot count on hearing full argument on the facts and law of particular cases.
Lawyers’ Rights Watch Canada has written a letter to the Rwandan government officials demanding Professor Erlinder’s immediate release. Additionally, this letter has been forwarded to Rwanda’s National Commission for Human Rights, the Canadian government, the American Bar Association, and the William Mitchell College of Law.
AllAfrica.com. “Rwanda: Peter Erlinder’s Family and their Legal Team Seek Release of Peter Erlinder.” 3 June 2010. http://allafrica.com/stories/201006030919.html.
Jeffrey Gettleman and Josh Kron. “Rwanda Says Jailed American Tried to Kill Himself.” New York Times. 2 June 2010. http://www.nytimes.com/2010/06/03/world/africa/03rwanda.html?emc=eta1.
RwandaInfo.com. “Open Letter sent by Lawyer Peter Erlinder to Canadian Prime Minister about Kagame and RPF.”
The Prosecutor v. Theoneste Bagosora, Gratien Kabiligi, Anatole Nsengiyumva, Aloys Ntabakuze, case no. ICTR-98-41-T (2007). http://www.rwandadocumentsproject.net/gsdl/collect/brief/index/assoc/HASH9c5d.dir/138-174.pdf.
William Mitchell College of Law. Professor Peter Erlinder Biography. http://www.wmitchell.edu/academics/faculty/Erlinder.asp?what=biography.
William Mitchell College of Law. Updates on Professor Peter Erlinder. http://www.wmitchell.edu/news/articles/default.asp?articleId=12257&story=William+Mitchell+updates+on+Professor+Peter+Erlinder.