Erlinder essay on Rwanda has defense nervous

WASHINGTON - In a 2008 essay titled The Great Rwanda "Genocide Coverup," St. Paul law Prof. Peter Erlinder acknowledged that under the African nation's strict laws against questioning its history of genocide, "I too am a criminal."

He wasn't exaggerating. Neither are Rwandans, who are holding him in jail for the crimes of "denying and downplaying genocide" and "spreading rumors ... capable of threatening the security of the Rwandan people."

The accusations, detailed in Rwandan court documents obtained by the Star Tribune, reflect a U.S.-aligned regime struggling to mend a legacy of bloody ethnic conflict -- and jealously guarding the commonly accepted history of Tutsi victimization at the hands of the majority Hutu population.

As documents filed this week show, Erlinder, a longtime human rights lawyer, has clearly challenged the Rwandan authorities' version of the 1994 mass killing of an estimated 800,000 people -- though not the killings themselves.

One of the key pieces of evidence against him: a federal lawsuit he filed in Oklahoma City last month accusing Rwandan President Paul Kagame, a U.S.-trained Tutsi military officer, of triggering the Rwandan genocide by shooting down the previous president's plane.

Kagame has long denied the accusation, made in French courts and elsewhere, calling it politically motivated revisionism.

Apart from the conflicting accounts of history, Rwanda's case against Erlinder has alarmed his defense team because none of the writings or statements cited in the court documents were made in Rwanda.

Legal groups and members of Minnesota's congressional delegation are pressing for his release. But Erlinder's attorneys have little hope that he will be released before Rwanda's August presidential election. Erlinder had entered the country late last month to represent Kagame's opponent, Hutu candidate Victoire Ingabire, who also faces charges of "denying genocide."

Appearing gaunt and tired Monday before a Rwandan judge, Erlinder, 62, was ordered held in "provisional" detention for another 30 days while prosecutors prepare formal charges that could carry penalties of between 10 and 20 years in prison. The court ruled that Erlinder's two hospitalizations since his arrest -- including one after a suicide hoax -- failed to constitute grounds for release.

According to a decision issued Monday by High Court Judge Maurice Mbishibishi, Erlinder's chief offense came in a 2009 article recounting a set of criminal indictments in Spain and France that held Kagame and his followers responsible for the 1994 plane crash that killed the former presidents of Rwanda and neighboring Burundi.

The offending passage: "... the crime that triggered... civilians-on-civilians killings in Rwanda."

In the view of Rwandan prosecutors, the term "civilians-on-civilians" negates the official view that the killings were planned and orchestrated by the previous Hutu regime.

As some of Erlinder's colleagues feared, the case against him also relies on his work as a defense attorney before the International Criminal Tribunal, where, Mbishibishi wrote, "he managed to prove that the genocide has (sic) not been planned nor executed by the military officials he was representing."

Again, the judge concluded, this is evidence that Erlinder "denied or downplayed genocide."

The court records cite another Erlinder article, identified as "Rwanda: no conspiracy, no genocide planning ... no genocide?" which argues that Kagame avoided prosecution for his own crimes during the ethnic conflict largely because of his close ties to the Clinton administration, which later acknowledged it did not do enough to stop the violence.

The court documents echo the Rwandan government's sensitivity to revisionist histories of a "counter-genocide" that ascribe atrocities to both sides.

"Usually, in his publications, there is no distinction between genocide and civil war," the judge wrote of Erlinder.

For example, prosecutors cite a 2006 letter Erlinder wrote to Canadian Prime Minister Stephen Harper describing the Kagame regime as "the most repressive military dictatorship in Africa." According to Kerns, Erlinder was merely quoting a story in the Economist magazine.

Erlinder has pleaded not guilty to all the accusations, adding, according to the newly released court records, "he did not intend to tarnish Rwanda's image." Erlinder's defense team, working through translators, also told the court that his statements, properly translated from English, constitute no crime.

In any case, they argued, he is protected by free speech guarantees both under the U.S. Constitution and the 54-nation Commonwealth (formerly known as the British Commonwealth), which Rwanda joined last year.

As for Erlinder's 2008 admission that he could be considered a "criminal" under Rwandan law, Kerns said that Erlinder thought that since then, "they had made strides in the right direction."

But before leaving for Rwanda, Erlinder told colleagues that if Rwandan authorities arrested him, it would prove otherwise.