Anatomy of a War Crimes Trial
A Paper by Christopher Black, International Criminal Lawyer, delivered at the 12th Rhodes Forum on September 26, 2014
The structural and political role the international criminal tribunals have played in the attempt by the United States of America and its NATO allies to create their New World Order has been analysed and described by distinguished jurists and writers around the world. Since I am a trial lawyer, I want to contribute to your understanding of the criminal nature of this international justice machine by briefly relating to you how these trials are actually conducted by those forces and to do that I want to focus on one particular political prisoner held by that machine, because his trial is an exemplar of the many. I could have chosen the Milosevic trial in which I was from time to time involved but I can add nothing to Dr. Laughland’s seminal book, Travesty, on that tragedy.
So I am going to talk about the Rwanda tribunal because it is the most familiar to me and because the war in Rwanda is used time and again by the United States in its propaganda to justify its wars of intervention, so-called.
The US claims that the violence that occurred in Rwanda in 1994 would not have happened if only America and others had acted instead of standing by and doing nothing. But now, after 15 years of trials and investigations, we know that the America and its allies did directly intervene. It was they who controlled that war and it was they who unleashed violence of an unprecedented magnitude and savagery simply in order to overthrow a regime that was an obstacle to greater conquests and riches in the Congo. Their forces, we now know, did most of the killing and Bill Clinton’s lie that the US was not involved is one of the great lies of history. As Boutros-Ghali told the Canadian writer on Rwanda, Robin Philpot, in 2004, “The Americans are 100% responsible for what happened in Rwanda.” Clinton’s big lie has been accepted and acted on because of the propaganda campaign that accompanied it in the media and the key to that propaganda campaign are the show trials at the Rwanda Criminal Tribunal, set up and financed by the same NATO countries and corporations and Soros connected NGOs as control the Yugoslav, Sierra Leone and Hariri tribunals.
In January 2000, General Augustin Ndindiliyimana, the former Chief of Staff of the Rwanda gendarmerie and most senior ranking Rwandan military officer in 1994, was arrested in Belgium based on an indictment issued by Carla Del Ponte, then prosecutor of the International Criminal Tribunal For Rwanda. He had fled to Belgium in June 1994. Where his entry was authorised by the Belgian Foreign Minister, Willy Claeys, who stated at the time that he had saved the lives of many Rwandans.
It was speculated in the Belgian press that his arrest was for political reasons and indeed, 11 years later, this speculation was confirmed when the trial judges delivered their judgement on May 17, 2011 and stated that the arrest was politically motivated. This was an astounding admission coming from judges who had been overtly hostile to the defence for most of the trial and a unique statement from any judges of these tribunals.
General Ndindiliyimana was considered a political “moderate” during the Rwanda War of 1990-94, a Hutu respected by Tutsis and Hutus alike and, as attested to by many witnesses including witnesses for the prosecution, his gendarmes did not commit crimes against civilians but tried to protect them where they could. So why was he arrested?
There are several reasons including the fact that he knew too much about what really happened in Rwanda and who was really responsible for the violence, because he knew and testified that United Nations and American forces, despite Clinton’s denials, were directly involved in the final RPF offensive of 1994 and the murder of President Habyarimana. But it quickly became clear that the prosecutor was using his arrest to pressure him to give false evidence against other accused at the tribunal.
The criminal methods used were many and constant. On his arrest, he and his counsel in Brussels met with two ICTR prosecutors who informed them that the indictment was just a formality so he could meet with the prosecutor to be interviewed regarding events in Rwanda. The Rules of Procedure require that an accused be shown the indictment on arrest. He was shown nothing. Yet, tricked into thinking he was in no jeopardy, he voluntarily accompanied the ICTR staffers to Tanzania, and was immediately thrown in prison.
The general was not immediately taken before a judge for an initial appearance as required by the ICTR Rules of Procedure. Instead he was held incommunicado for almost 4 months and did not make his first appearance before the judges of the tribunal until April 28th of that year. The delay was a deliberate tactic meant to soften him up psychologically, a method also used on the Rwanda Prime Minister, Jean Kambanda.
In June 2000 Ndindiliyamana contacted me and asked me to be his counsel. I agreed and he submitted my name to the registrar to be assigned. But their immediate reaction was to try to block my appointment and force him to take counsel they preferred. This was a frequent occurrence at the ICTY and R and is now the norm at the International Criminal Court. Defence counsel who are seen to be too effective are prevented from representing accused by various means in favour of counsel who are either active agents of the western powers or who will only put up token defences.
The indictment was not an indictment. It was, instead, a 65 page propaganda tract, setting out the mass media version of the war, all of it false, all of it meant to prejudice the accused in the eyes of the judges but, more especially, meant for public consumption and prosecution press releases. Further, entire lines, sections and even entire pages of the indictment were blacked out, including the names of co-accused. We could not make out what the charges were. In fact the duty counsel who assisted him on his initial appearance had the temerity to say that it was impossible to plead to a document that was half blank. The judges studiously ignored him.
In July 2000, on my first day at the Tribunal an American woman approached me to inform me that she was in charge of the prosecution staff and wanted to talk with me. She informed me that she was not only a lawyer. She was also a Colonel in the US Air Force. She asked to meet me the next day to discuss a deal. The next day, about 20 people walked into the meeting room where I was sitting alone. The attempt to intimidate me was clear. The American colonel made various proposals for a deal if we agreed to cooperate and testify for the prosecution. Our response was that the charges, so far as we could make them out, were false, that we could not accept his arrest and detention as a means of forcing him to give false testimony and demanded to have a trial.
On my next trip to Arusha, a couple of months later I found that he had “disappeared” from the prison. The UN and Tanzanian guards refused to tell me where he was. It took days of arguing with obstructive officials to find out that he had been transferred to a UN safe house in the town of Arusha. The excuse given to me was that he was in danger from other prisoners but in reality it was to keep him isolated psychologically, to weaken him, to soften him up, and to discredit him with the other prisoners by making it look like he was “making a deal.” Demands that he be taken back to the UN Detention Unit were ignored until the press got involved.
For the next 4 years we faced constant obstructions in trying to find out what charges he actually faced, in preparing a defence and in trying to have a speedy trial. Throughout this period, the prosecution made offers in exchange for false testimony, including a last offer to drop all charges, if he would testify as they directed. We refused.
Repeated demands for a speedy trial were met with shrugs of indifference.
Repeated demands for relevant disclosure were met with contempt and then the delivery of mountains of irrelevant documents.
Demands for sufficient resources to do proper investigations and research were ignored or met with token amounts.
Often the team members were not paid, all in the hope that we would fade away.
We learned through sympathetic contacts in the UN security office that defence office phones and fax lines were tapped and suspected the same of emails.
Lawyers were followed. In hotels, cafes, on the streets.
Lawyers’ hotel rooms were broken into and their computers tampered with.
Attempts were made to put women next to us, who worked for the Tanzanian and Rwandan intelligence services.
Rumours of all sorts were spread in the UN detention unit to discredit defence counsel with their clients.
Lawyers faced other type of intimidation and worse. In 2003, a Scottish lawyer, Andrew McCarten, representing another accused at the ICTR, came to see me in Toronto stating that he feared for his life. He was very agitated. He had just tried to meet with Bill Clinton and had been ejected from his office in New York. He told me details of the US military and CIA penetration of the tribunal and said he was going to send me documents of even darker things. After that meeting the tribunal accused him of financial irregularities and kicked him out. Two weeks late he was dead. The police could find no cause for his car going off a cliff in Scotland. He was Scotland’s foremost military lawyer.
On a visit to Arusha just after that I was visited by a major in American army intelligence, accompanied by an intelligence officer from the American State Department Research Intelligence Bureau who wanted to know what my trial strategy was and what my client’s views were of African politics.
The defence lawyers were not the only ones who faced problems. In 1997, Louise Arbour ordered an investigation into the shoot-down of the presidential plane, which resulted in the massacre of all on board, including the Hutu President of Rwanda, Habyarimana and the Hutu president of Burundi, Ntaryamira and the Army Chief of Staff. The invading Ugandan-RPF forces and Americans claimed that Hutu “extremists” shot down the plane.
An Australian lawyer, Michael Hourigan, was assigned to lead the investigation and in due course he reported to Arbour that his team had determined that it was in fact the RPF that had shot down the plane with the help of a foreign power and the CIA was implicated. Arbour, he stated in an affidavit, seemed enthusiastic when he first informed her by telephone but when he was summoned to The Hague to meet with her, her attitude had totally changed to open hostility. He was ordered to hand over his evidence and ordered off the case.
To this day that file has been kept secret and no one named in his report has been charged. Arbour, an accomplice to a war crime, and obstruction of justice had proved her worth to Washington and 2 years later was used to issue a phony indictment against Milosevic and was rewarded for her services with a series of lucrative positions.
In January 2004 the defence lawyers organised a strike to protest the political nature of the charges and trials, the poor working conditions for the defence, the searches of defence counsel by guards when they went to meet with their clients, and the isolation and conditions for the prisoners, a strike opposed by most British and American lawyers. A few weeks after the strike the strike leader, Jean Degli, a Congolese lawyer based in Paris, an excellent advocate and a strong leader of the defence lawyers’ association, was implicated by the prosecution in a financial scandal and forced out from the defence of a senior military officer. His denials were ignored. Once he left the tribunal the defence lawyers’ association fell apart and never took any effective action again.
The prisoners themselves created a list of defence lawyers they believed to work for western intelligence agencies. For those cases the tribunal could not control through friendly counsel the prosecution tried to insert someone inside the defence team to pass on information and to influence defence tactics and strategy. We detected several people in our case who were working for the prosecution as spies.
They refused to allow us to have the co-counsel we wanted and instead we were given several who pressured us to plead him guilty and had secret meetings with prosecutors behind our backs to arrange that and we had to discharge them.
They tried to trap and arrest our lead investigator on false charges, a former Rwandan police major, (and a member of the Dutch police) very useful to us in locating witnesses, who was forced out of our team on false allegations. For nearly 5 years they ran us in circles with these methods, until finally the trial began, in September, 2004.
To our complete surprise, the prosecutor stood up on the opening day and filed a brand new indictment containing dozens of new charges including allegations of massacres we had never heard of and personal murders allegedly committed by the general himself. The accusations were of the worst and most sensational kind. It was clear they were meant to prejudice the accused in the eyes of the judges before the trial got going and in fact, as we saw in their judgement many of those were dropped without any evidence ever being presented. It was all a sham. We protested and demanded a delay to prepare a defence. We were denied and forced on and so had to prepare a defence on the run.
The judges’ attitude from the first day was openly hostile and they refused to allow us to discuss certain issues, or to cross-examine witnesses as we wanted. They openly sided with the prosecutors and sat back and did nothing as, each day, the prosecutors launched into vicious personal attacks on defence counsel and the accused.
The majority of prosecution witnesses were Hutu prisoners of the RPF regime in Rwanda, held without charge for ten years or more, in terrible conditions, many tortured, none of their testimony agreeing with the statements they had made prior to trial, much of it, double and triple hearsay. No RPF officers were called to testify though they did call a few witnesses who were members of Rwandan government propaganda groups. The only evidence they had came out of the mouths of these Hutu prisoners and government agents.
Nevertheless, a number of them, once on the stand, had the courage to state that they had been forced to sign statements and testify falsely in return for release, favours or to avoid execution. We learned from these witnesses that the regime had set up schools in the prisons to recruit and train false witnesses, and the judges heard detailed accounts of how witnesses were recruited in these prisons, and that prosecution staff at the tribunal were involved in this scandal. Nothing was done to protect these witnesses despite our demands.
The judges threatened me and other counsel with arrest if we continued lines of questions they didn’t want us to pursue.
There were daily angry confrontations in court between the judges and defence counsel when we tried to protect the rights of the accused and insisted on a fair trial. Throughout the trial, evidence came out that the enemy forces had committed mass atrocities against civilians but instead of the judges asking the prosecution why these forces were not charged they tried to silence us.
Written motions filed by defence counsel were ignored so I refused to file anymore and made all my motions verbally on the record in court so the public at least would hear of them. But still no decisions were rendered on many of them.
We learned that the Witness Protection unit charged with protecting witnesses in fact was giving the RPF regime information about our witnesses some of whom were arrested or murdered by the regime in Rwanda.
In 2005, during my cross-examination of a Belgian Army colonel concerning what is known as the Dallaire genocide fax, we learned that the translators were reading from scripts prepared by the prosecution instead of translating actual testimony of the witness. Demands for a halt to the trial and an investigation were met with silence.
During this cross-examination the Dallaire fax was proved to be a forgery and placed in UN files by a colonel in the British Army. The prosecution was so embarrassed by the revelation that they were using a forged document the fax was never again mentioned in any of the trials at the ICTR and though it was claimed to be the most important prosecution document in the trials.
In 2006, the prosecution arranged to have the Appeal Chamber make the astounding declaration that the “genocide” was a judicially noticed fact despite the clear denial by the defence, despite the contrary evidence in the trials and despite the fact that the primary charge all the accused faced was genocide. In effect the tribunal stated the defence could not deny the principal charge against them. We did that anyway.
In September 2006 the well-known prosecution expert, Dr Alison Des Forges, testified in our trial and prepared an expert report for that purpose. The problem was that she removed from that report statements she had made in an earlier report that Ndindiliyimana was an officer who wanted peace and who had tried to protect civilians. When she was confronted in cross-examination as to why she had attempted to mislead the judges she refused to answer the questions but it was clear from the reaction of the prosecutors that she had removed those exculpatory statements in an attempt to obstruct justice and did so on the orders of the prosecution. The trial judges took the rare step of censuring Dr. Des Forges for this deceit in the trial judgement.
In 2007 the Judges and prosecutors held a secret meeting on how to eliminate the unwanted testimony of a Tutsi prince, son of the last Tutsi king, and well known personality in Rwanda, named Antoine Nyetera, who testified that the RPF had done all the killing not the government and that he was a witness to it. To cover up what they did the daily minutes for that day were doctored.
Transcripts were doctored. Key words or key phrases were changed to the benefit of the prosecution, our cross-examinations scrambled and made almost unreadable. Again, complaints went nowhere.
I received death threats throughout the trial from RPF government officials, from Tanzanian secret police, and from the CIA who warned me I had stepped over the line. These have not stopped even now as the Canadian intelligence service visited me in July to tell me I was on a Rwandan government hit list. It seemed to me there visit was not a warning of a threat but the conveying of one.
In November 2005 Juvenal Uwilingiyimana, a former cabinet minister in Rwanda, who was being interviewed by two Canadian investigators working for Stephen Rapp, then chief of prosecutions at the ICTR, disappeared when he went to meet these investigators in Lille, France. These were the same Canadians who had kept Prime Minister Kambanda incommunicado for 9 months to extract a false confession from him. Weeks later, Uwilingiyimana’s body was found in a canal in Brussels, naked, with its hands cut off. Just before he disappeared he wrote a letter to the tribunal stating that Rapp and his men were pressuring him to give false testimony and that they had threatened to kill him and cut his body into pieces unless he cooperated. I and other counsel raised this letter and the murder in court and demanded that the prime suspects in the murder, Stephen Rapp and the two Canadians, be suspended and detained pending an investigation. Nothing was done. The Belgian police did no investigation and Rapp was promoted to the position of US roving ambassador for war crimes.
In 2008, a prosecution witness in our trial recanted stating that he was forced, under threat of death, to give false testimony. The defence succeeded in getting the judges to order his recall to be questioned about it and he was brought from Rwanda to a UN safe house in Arusha, The day before he was to testify he disappeared from that safe house and has never been seen since. The UN could not explain how he could disappear from one of their safe houses.
An RPF military intelligence officer who had fled the regime testified that all the sections of the tribunal were penetrated by western and RPF intelligence officers and that the translators all worked for Rwandan intelligence and that the judges were seen as useful puppets.
We noticed the presence several times during the trial of American army officers and senior members of the American Department of Justice sitting with the prosecutors. We demanded that they be ejected and the judges were forced to order them removed from the courtroom. But it was clear who was in control.
During the short cross-examination we were permitted of General Dallaire, by video link from Canadian Defence Headquarters in Ottawa, the cameraman made the mistake of pulling back from the close-up shot of the General’s face and torso to a wide angle shot and we were shocked to see 5 senior Canadian Army officers sitting next to him when we had been told he was alone in the room with the technician and a court official. When we demanded to know who they were and who had given them orders to be there they refused to answer and the judges refused to order their removal.
In 2008, I found hidden in prosecution files a sensitive letter from Paul Kagame, dated August, 1994, in which he refers to the “plan for Zaire,” and the role of the Americans, British and Belgians. I raised this letter in court the next day. The prosecution accused me of forging this document, even though it came from their files, and that night I was openly followed by a Tanzanian police detective. I was forced to ask the judges for protection the next day who insisted that I be left alone.
In 2011, despite the overwhelming evidence that Ndindiliiyimana was innocent the judges convicted him for failing to punish subordinates for two alleged crimes though they acquitted him on all the substantive charges and ordered his release.
When the Appeal Chamber threw out those convictions on February 7 2014, as they had to do, I learned from an inside source that the senior trial judge told him that the judges felt they had to convict him of something despite his clear innocence because they were afraid of the consequences from the Americans if they acquitted. He also stated that the judges received pressure from the Americans to drop the statement it was a political trial and the statement censuring Des Forges but the trial judges were angry and decided to rebel a bit and left them in.
As an aside, the day after the conviction was announced, I was surprised to receive an email from the American woman, the colonel, who had first dealt with the case in 2000 and offered us a deal. She is now a high official in the US State Department. She stated that she was angry that Ndindiliyimana had been convicted, that things were never meant to go that far and that, if ever I was in Washington, she would tell me what was really behind everything. But I have not gone to Washington.
Each trial in this criminal machine has its stories. I have only had time to share with you a few of the events that happened in our trial for each day brought new excesses we never thought were possible in a civilised world. Bu the stories are the same, whether it be Milosevic or Taylor, Gbagbo or Kenyatta, Gaddafi or Bashir, Mladic or Krstic, Ndindiliyimana or Kambanda; corruption and criminality on a vast scale used to achieve corrupt and criminal political ends. International justice itself has become a crime against justice and humanity. There is not much more I can say except that it seems to me that what we see in these trials reflects the corruption and criminality in the present world order from which they arise. International justice worthy of the name cannot exist without an international order that is democratic; a world order in which the sovereignty and equality of nations is fundamental. Law and its legal structures reflect the social, economic and political relations of a society. To rebuild the legal architecture of international justice so that it is fair, impartial and universal we first have to change the fundamental economic, social and power relations that are its foundation. Without this mankind will continue down the path of reaction and war and the list of victims of these truly criminal tribunals will be long and the victims of a world war will include all of us. But how is this to be done? I leave that to you.