Explaining Erlinder?

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

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

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

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

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

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

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

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

In interviews with US and UK media, Ingabire seems pretty far from expressing support for genocide – her issue appears to be the governments’ unwillingness to address violence against Hutu by Kagame’s conquering RFP army. In an interview today with the New York Times about the arrest of her lawyer, she said, “There was a genocide against the Tutsi, but there were also crimes against humanity, and Kagame doesn’t like to talk about that.”

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

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

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

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

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

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

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

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

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

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

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