Two Thoughts on Peter Erlinder’s Arrest in Rwanda

Julian beat me to the punch regarding the news that Peter Erlinder, the William Mitchell law professor who is one of the leading defense attorneys at the ICTR, has been arrested in Rwanda for “genocide denial” — code for “criticizing the Kagame government.”  There is no need to waste time criticizing the arrest; anyone who follows Rwanda knows that Kagame is a petty dictator.  But two larger points are worth emphasizing.

First, this latest turn of events should be the death knell of the Office of the Prosecutor’s efforts to transfer the remaining ICTR cases to domestic Rwandan courts.  As I have noted before, the Trial and Appeals Chambers have shown great courage in refusing transfer requests, correctly recognizing that the the likelihood that ICTR defendants will receive a fair trial from Kagame’s government is essentially zero.  The OTP is likely to redouble its efforts to transfer cases as the ICTR’s completion date draws near, but it is difficult to see how the Chambers could change its position given Erlinder’s arrest.  If Rwanda is willing to arrest a defense attorney for doing his job, can anyone maintain with a straight face that transferred defendants would be tried fairly?

Second, and relatedly, the ICTR has uttered nary a word in protest of Erlinder’s arrest.  That’s absolutely shameful — and is indicative of the Tribunal’s general contempt for defense attorneys.  The very first post I ever wrote for Opinio Juris, way back in February 2006, focused on the second-class status of defense attorneys at the international tribunals.  Unfortunately, it seems clear that nothing has changed in the past four years.