Dr Kambanda Makes His Genocide Statement
INYENYERI ANONYMOUS READER’S REBUTTAL OF MY CRITIQUE ON THE 1994 RWANDAN MASSACRES IS PROBABLY UNSUBSTANTIATED IN FACT AND LAW
Introduction:
Professor Kambanda
is now involved in research on Rwanda's ongoing
social and political conflict.
I argued that the facts around the 1994 Rwandan massacres are inconsistent with the elements of the crime of genocide. Consequently, there is insufficient evidence to prove – beyond a reasonable doubt – all the elements of the crime of genocide. The ICTR appeals court appears to move towards this position as well. I stated the essential facts which justify my analysis. (1) Some people who killed the Tutsi were Tutsi. Some Tutsi who killed the Tutsi were well trained RPF/A soldiers who infiltrated the Hutu youth groups that had gone radical. Some of these people are still alive. Some of RPA commanders who trained, armed and deployed this RPA special force to kill the Tutsi and Hutu posing as interahamwe are still alive. (2) The interahamwe who allegedly killed the Tutsi were not exclusively Hutu. Some interahamwe were Tutsi. In effect, the commander, political affairs and recruitment boss of the interahamwe was Tutsi. Except if you argue that the Tutsi had the specific intent to kill in whole or part their fellow Tutsi. (3) The number of Tutsi victims of the massacres is far less than the number of the Hutu who died during the massacres. Refer to the then population statistics, the number of skulls in genocide memorial sites and the number of the Tutsi survivors of the massacres. It is not possible that the Hutu set out to exterminate the Tutsi but ended up exterminating themselves. (4) Execution of genocide is impossible without planning on the top. There is no evidence that some Hutu at the top planned what you want to call Tutsi genocide. (5) if you agree that shooting down Habyarimana’s plane was the proximate cause of what you call genocide, and the “genocide” started immediately after shooting down the plane, and, considering point ( 4) above, it is evident there was no time for planning and propagating what you want to call genocide. (6) Considering that the massacres occurred in the context of a bloody ethnic war between the Hutu and Tutsi and considering point (3) above, it is naive to refer to those massacres as genocide. (7) At the time of the massacres, the then government troops (the Hutu) were disarmed by UN forces, fully disarmed. However, RPA was well armed with very many troops in Kigali. Generally, the Hutu government and troops had lost power and the war. How did the then disarmed Hutu troops exterminate the Tutsi in front of the armed RPF Tutsi troops?
Inyenyeri newspaper later published a “rebuttal” to my piece from what the newspaper called an “anonymous reader”. I am compelled to respond to the “anonymous reader’s” rebuttal. However, before I address my mind to the substance of the “rebuttal”, I must make the following clarifications. First, my piece was meant for a different audience. Friends of Reason social media forum have a specific target audience. Friends of Reason seek to provide methodical data and/or information to high profile international policy makers. Therefore, at Friends of Reason, it is common to omit explaining basic concepts and theories behind an argument because we want to reduce the volume of data or information we post for our target audience. Friends of Reason target audience are very busy people with excellent broad knowledge of issues, underlying principles, concepts and theories. Some Inyenyeri readers – including the “anonymous” reader who “rebutted” my piece – could have found my argument confusing because they do not have sound background knowledge of the underlying principles, concepts and theories of the issues at hand
Second, there is no proportional good for keeping a reader anonymous when that person is presenting personal views to rebuttal a fully disclosed author especially where the “rebuttal” has the effect and purpose to ridicule the author. In such a situation, justice and fairness require full disclosure of the identity of the person that seeks to rebuttal. It was either unprofessional for the Inyenyere news to keep the reader anonymous or the news outlet acted in bad faith. The “anonymous reader” is of the impression that my stated facts numbered (1) through to number (7) are irrelevant to the issue of ‘whether or not the massacres satisfy the elements of the crime of genocide”. Inyenyeri news “anonymous reader” argues that fact number (7) is false. I have argued that the “anonymous readers” is wrong.
Whether facts numbered (1) through to (7) are relevant to whether or not the massacres meet the elements of the crime of genocide:
It is relevant any fact or evidence that tends to make existence of a fact in issue more probable or less probable than it would be without the (that) fact or evidence. The crime of genocide is both general and specific intent crime; both “intent” must be pleaded and proven beyond a reasonable doubt. Mistake of fact(s) is good defense for general intent crimes provided that the mistake is reasonable. On the other hand, mistake of fact(s), whether reasonable or unreasonable, is good defense for specific intent crimes provided the mistake is in good faith. Like any crime, prosecution has the burden of proof; to prove beyond a reasonable doubt each element of the crime. Any slight doubt that is created in the mind of court leads to acquittal.
Any fact or evidence that negates the assertion that the Hutu or Tutsi were systematically killed because they were members of that group (general intent) and that the Hutu or Tutsi were killed specifically to eliminate their group in whole or part (specific intent) is relevant. Each, or some combination, of my grounds numbered (1) through to (7), if proven, negate(s) the general intent and/or specific intent which are supposed to be proven beyond a reasonable doubt. All the above grounds (1) to (7) or a combination thereof, if proven, could be good grounds of mistake of fact thereto, if: (a) the mistake was reasonable (general intent component) and/or (b) the mistake was unreasonable or reasonable, provided the defendant mistook the fact(s) in good faith ( specific intent). Therefore, all the above grounds are relevant for the analysis of whether or not the massacres meet the elements of the crime of genocide. Finally, each of the above facts – numbered (1) to (7), if proven, would create some doubt as to whether the massacres only targeted one group, every group was targeted and/or anybody could have been a perpetrator or a victim. These grounds raise doubts in the mind of any reasonable court as to whether the massacres were genocide or any other crime. I guess the “anonymous reader” does not appreciate these basic criminal law issues.
Whether or not the government forces had been “disarmed” while RPF was fully armed at the time of the massacres:
A person or group is considered “disarmed” if that person or a group has been rendered incapable of functioning in a normal way. A person or group could be considered “disarmed” because they have been totally incapacitated. There is sufficient evidence that the UN had “disarmed” the then government troops by limiting their access to weapons. First, as early as June 1993, the then UNOMUR controlled the Rwanda/Uganda borders. No arms would cross into the government controlled territory from Uganda. The then government troops could not get arms supplies through Burundi or Tanzania because these two countries were pro RPA/F. Congo could not provide a viable alternative for arms supplies to the then government troops because the then government in Congo had no control over the border areas and there were no roads in Congo, to supply arms to government troops. Rwanda is a landlocked country. When UNOMUR became UNAMIR, they controlled even the airport. Second, UNAMIR made Kigali a “weapon secure area” as par the Arusha Agreements to protect the Transition government officials. Government troops were not allowed to transport or move arms without UN observers. Third, UNAMIR inventoried all official arms caches of the government; the UN kept a close eye over all government arms in Kigali. It is well documented that Dallaire carried out surprise raids on known arms caches and controlled those caches. Dallaire even tried to secure a UN resolution that would allow him to search and seize arms in the private homes of the then government troops. On the other hand, it is well documented that: (a) RPA had unlimited access to arms through Uganda, Ethiopia, Tanzania, Burundi and the US, among other countries. (b) UNAMIR and Dallaire were actually facilitating RPA/F to ship heavy weapons into Kigali. RPA/F trucks and trailers into and within Kigali were not subjected to any checking. Dallaire never raided RPA/F arms stores in Kigali. It is proper to say that the then government troops were incapacitated, disarmed, while RPA/F was facilitated, armed.
Whether it is legally impossible for a group to execute genocide without “planning”:
Genocide is a structured crime. The crime of genocide is analyzed and/or prosecuted in pyramid structure. Genocide is systematic killing as opposed to accidental or spontaneous killing or extermination. There must be evidence of “planning “among the people at the apex of the pyramid, at least some people at the top. The planners map out the victims, they set time and space for the massacres. The planners manage the supply chain for the crime with precision. The lower cadres, along the pyramid, execute that plan. The ICTR has tried all the top government military and political leaders of the time. There was no evidence of panning the massacres at the apex of the pyramid. This creates a kind of legal impossibility. It is legally impossible to have an unplanned genocide. Like it is legally impossible for an impotent male to commit rape, as a principal in the first degree, it is legally impossibile to commit genocide without a “plan”. Impotence is not an element of rape. However, impotence – if proven – negates rape. “planning” is not an element of the crime of genocide but absence of “planning” for the crime of genocide negates genocide.
Whether court can convict where prosecution, for any reason, has insufficient or no evidence:
The burden of proof rests on prosecution to present evidence beyond a reasonable doubt for each element of the crime. Any slight doubt created in the mind of court, acquittal is imperative. A prosecutor is under duty not to prosecute any person if he reasonably believes that person is innocent. A prosecutor is not allowed to prosecute a person if the prosecutor knows, or has reasons to know, that there is no sufficient evidence to secure conviction. The Inyenyeri “anonymous reader” does not appear to make out these basic principles. What should court do if prosecution does not have evidence? Acquit. The ICTR appeals court is doing exactly this.
Conclusion:
The issues at hand are technical. Appreciating these issues requires serious knowledge of the applicable laws and facts. It is more than reading the Genocide Statute. The facts I set in my argument are relevant and true, for most part, they are the basis for the current apparent automatic acquittals at the ICTR appeals court. The “anonymous reader’s” view is the only explanation why prosecution, at the ICTR, has lost on each single account of genocide they prosecuted since the US declassified evidence to prove the above facts.
I argued that the facts around the 1994 Rwandan massacres are inconsistent with the elements of the crime of genocide. Consequently, there is insufficient evidence to prove – beyond a reasonable doubt – all the elements of the crime of genocide. The ICTR appeals court appears to move towards this position as well. I stated the essential facts which justify my analysis. (1) Some people who killed the Tutsi were Tutsi. Some Tutsi who killed the Tutsi were well trained RPF/A soldiers who infiltrated the Hutu youth groups that had gone radical. Some of these people are still alive. Some of RPA commanders who trained, armed and deployed this RPA special force to kill the Tutsi and Hutu posing as interahamwe are still alive. (2) The interahamwe who allegedly killed the Tutsi were not exclusively Hutu. Some interahamwe were Tutsi. In effect, the commander, political affairs and recruitment boss of the interahamwe was Tutsi. Except if you argue that the Tutsi had the specific intent to kill in whole or part their fellow Tutsi. (3) The number of Tutsi victims of the massacres is far less than the number of the Hutu who died during the massacres. Refer to the then population statistics, the number of skulls in genocide memorial sites and the number of the Tutsi survivors of the massacres. It is not possible that the Hutu set out to exterminate the Tutsi but ended up exterminating themselves. (4) Execution of genocide is impossible without planning on the top. There is no evidence that some Hutu at the top planned what you want to call Tutsi genocide. (5) if you agree that shooting down Habyarimana’s plane was the proximate cause of what you call genocide, and the “genocide” started immediately after shooting down the plane, and, considering point ( 4) above, it is evident there was no time for planning and propagating what you want to call genocide. (6) Considering that the massacres occurred in the context of a bloody ethnic war between the Hutu and Tutsi and considering point (3) above, it is naive to refer to those massacres as genocide. (7) At the time of the massacres, the then government troops (the Hutu) were disarmed by UN forces, fully disarmed. However, RPA was well armed with very many troops in Kigali. Generally, the Hutu government and troops had lost power and the war. How did the then disarmed Hutu troops exterminate the Tutsi in front of the armed RPF Tutsi troops?
Inyenyeri newspaper later published a “rebuttal” to my piece from what the newspaper called an “anonymous reader”. I am compelled to respond to the “anonymous reader’s” rebuttal. However, before I address my mind to the substance of the “rebuttal”, I must make the following clarifications. First, my piece was meant for a different audience. Friends of Reason social media forum have a specific target audience. Friends of Reason seek to provide methodical data and/or information to high profile international policy makers. Therefore, at Friends of Reason, it is common to omit explaining basic concepts and theories behind an argument because we want to reduce the volume of data or information we post for our target audience. Friends of Reason target audience are very busy people with excellent broad knowledge of issues, underlying principles, concepts and theories. Some Inyenyeri readers – including the “anonymous” reader who “rebutted” my piece – could have found my argument confusing because they do not have sound background knowledge of the underlying principles, concepts and theories of the issues at hand
Second, there is no proportional good for keeping a reader anonymous when that person is presenting personal views to rebuttal a fully disclosed author especially where the “rebuttal” has the effect and purpose to ridicule the author. In such a situation, justice and fairness require full disclosure of the identity of the person that seeks to rebuttal. It was either unprofessional for the Inyenyere news to keep the reader anonymous or the news outlet acted in bad faith. The “anonymous reader” is of the impression that my stated facts numbered (1) through to number (7) are irrelevant to the issue of ‘whether or not the massacres satisfy the elements of the crime of genocide”. Inyenyeri news “anonymous reader” argues that fact number (7) is false. I have argued that the “anonymous readers” is wrong.
Whether facts numbered (1) through to (7) are relevant to whether or not the massacres meet the elements of the crime of genocide:
It is relevant any fact or evidence that tends to make existence of a fact in issue more probable or less probable than it would be without the (that) fact or evidence. The crime of genocide is both general and specific intent crime; both “intent” must be pleaded and proven beyond a reasonable doubt. Mistake of fact(s) is good defense for general intent crimes provided that the mistake is reasonable. On the other hand, mistake of fact(s), whether reasonable or unreasonable, is good defense for specific intent crimes provided the mistake is in good faith. Like any crime, prosecution has the burden of proof; to prove beyond a reasonable doubt each element of the crime. Any slight doubt that is created in the mind of court leads to acquittal.
Any fact or evidence that negates the assertion that the Hutu or Tutsi were systematically killed because they were members of that group (general intent) and that the Hutu or Tutsi were killed specifically to eliminate their group in whole or part (specific intent) is relevant. Each, or some combination, of my grounds numbered (1) through to (7), if proven, negate(s) the general intent and/or specific intent which are supposed to be proven beyond a reasonable doubt. All the above grounds (1) to (7) or a combination thereof, if proven, could be good grounds of mistake of fact thereto, if: (a) the mistake was reasonable (general intent component) and/or (b) the mistake was unreasonable or reasonable, provided the defendant mistook the fact(s) in good faith ( specific intent). Therefore, all the above grounds are relevant for the analysis of whether or not the massacres meet the elements of the crime of genocide. Finally, each of the above facts – numbered (1) to (7), if proven, would create some doubt as to whether the massacres only targeted one group, every group was targeted and/or anybody could have been a perpetrator or a victim. These grounds raise doubts in the mind of any reasonable court as to whether the massacres were genocide or any other crime. I guess the “anonymous reader” does not appreciate these basic criminal law issues.
Whether or not the government forces had been “disarmed” while RPF was fully armed at the time of the massacres:
A person or group is considered “disarmed” if that person or a group has been rendered incapable of functioning in a normal way. A person or group could be considered “disarmed” because they have been totally incapacitated. There is sufficient evidence that the UN had “disarmed” the then government troops by limiting their access to weapons. First, as early as June 1993, the then UNOMUR controlled the Rwanda/Uganda borders. No arms would cross into the government controlled territory from Uganda. The then government troops could not get arms supplies through Burundi or Tanzania because these two countries were pro RPA/F. Congo could not provide a viable alternative for arms supplies to the then government troops because the then government in Congo had no control over the border areas and there were no roads in Congo, to supply arms to government troops. Rwanda is a landlocked country. When UNOMUR became UNAMIR, they controlled even the airport. Second, UNAMIR made Kigali a “weapon secure area” as par the Arusha Agreements to protect the Transition government officials. Government troops were not allowed to transport or move arms without UN observers. Third, UNAMIR inventoried all official arms caches of the government; the UN kept a close eye over all government arms in Kigali. It is well documented that Dallaire carried out surprise raids on known arms caches and controlled those caches. Dallaire even tried to secure a UN resolution that would allow him to search and seize arms in the private homes of the then government troops. On the other hand, it is well documented that: (a) RPA had unlimited access to arms through Uganda, Ethiopia, Tanzania, Burundi and the US, among other countries. (b) UNAMIR and Dallaire were actually facilitating RPA/F to ship heavy weapons into Kigali. RPA/F trucks and trailers into and within Kigali were not subjected to any checking. Dallaire never raided RPA/F arms stores in Kigali. It is proper to say that the then government troops were incapacitated, disarmed, while RPA/F was facilitated, armed.
Whether it is legally impossible for a group to execute genocide without “planning”:
Genocide is a structured crime. The crime of genocide is analyzed and/or prosecuted in pyramid structure. Genocide is systematic killing as opposed to accidental or spontaneous killing or extermination. There must be evidence of “planning “among the people at the apex of the pyramid, at least some people at the top. The planners map out the victims, they set time and space for the massacres. The planners manage the supply chain for the crime with precision. The lower cadres, along the pyramid, execute that plan. The ICTR has tried all the top government military and political leaders of the time. There was no evidence of panning the massacres at the apex of the pyramid. This creates a kind of legal impossibility. It is legally impossible to have an unplanned genocide. Like it is legally impossible for an impotent male to commit rape, as a principal in the first degree, it is legally impossibile to commit genocide without a “plan”. Impotence is not an element of rape. However, impotence – if proven – negates rape. “planning” is not an element of the crime of genocide but absence of “planning” for the crime of genocide negates genocide.
Whether court can convict where prosecution, for any reason, has insufficient or no evidence:
The burden of proof rests on prosecution to present evidence beyond a reasonable doubt for each element of the crime. Any slight doubt created in the mind of court, acquittal is imperative. A prosecutor is under duty not to prosecute any person if he reasonably believes that person is innocent. A prosecutor is not allowed to prosecute a person if the prosecutor knows, or has reasons to know, that there is no sufficient evidence to secure conviction. The Inyenyeri “anonymous reader” does not appear to make out these basic principles. What should court do if prosecution does not have evidence? Acquit. The ICTR appeals court is doing exactly this.
Conclusion:
The issues at hand are technical. Appreciating these issues requires serious knowledge of the applicable laws and facts. It is more than reading the Genocide Statute. The facts I set in my argument are relevant and true, for most part, they are the basis for the current apparent automatic acquittals at the ICTR appeals court. The “anonymous reader’s” view is the only explanation why prosecution, at the ICTR, has lost on each single account of genocide they prosecuted since the US declassified evidence to prove the above facts.