In Wichita Trial, Justice—or Not—for the Rwandan Genocide

The Kansas case of an octogenarian immigrant is emblematic of the imperfect, highly-politicized, and even tainted process of doling out justice for the Rwandan genocide
 

AP

On April 15, 1994, just days into a bloodletting that would leave nearly a tenth of Rwanda's population dead, a mob of ethnic Hutus gathered in the village marketplace in Birambo. Incited and possibly organized by local Hutu leaders, the mob ransacked homes and businesses owned by ethnic Tutsis. In the days that followed, hundreds of Tutsis who fled into the nearby mountains were hunted down and killed. Seemingly anomic yet carefully organized, episodes like that in Birambo would be repeated thousands of times over the coming months, as militants, politicians, and prominent local Hutus stoked and even stage-managed a gruesome war of all against all.

Wichita, Kansas is eight time zones away from Birambo. It's a strange place for a high-stakes legal and political showdown over how to punish or even identify the local-scale leaders of the Rwandan genocide, a matter that's morphed into a debate over the legacy of the genocide itself. Yet the freedom of Lazare Kobagaya, an 84-year-old Rwandan immigrant and Kansas resident, depends on how these two interrelated debates play out in a federal courtroom.

Kobagaya is currently on trial in Wichita for allegedly lying about his involvement in the events in and around Birambo while he was in the process of applying for U.S. citizenship. The government, which began presenting its case last week, believes that Kobagaya helped lead and organize the Hutu mob in Birambo, and violated federal U.S. law by claiming on his N-400 naturalization form that he had never "persecuted (either directly or indirectly) any person because of race, religion, national origin, membership in a particular social group, or political opinion." If convicted, Kobagaya faces jail time, the revocation of his U.S. citizenship, and deportation to Rwanda, where he would likely face another trial -- this time for genocide.

On its simplest level, the case, which is the first Rwandan genocide-related prosecution in U.S. history, concerns what Kobagaya was doing during the opening weeks of the Rwandan genocide. But there's a political and even historical dimension to it as well. According to defense filings, Kobagaya's name never appears in records of the genocide collected by Human Rights Watch and the Rwandan government. The bulk of the evidence against him comes from eyewitnesses currently living in Rwanda, people who the defense claims were hand-selected by a Rwandan government that has used its own version of the events of 1994 to maintain its grip on power.

Rwandan president Paul Kagame, who was reelected in August 2010 with 93 percent of the vote, has made it a criminal offense to question his government's official version of the genocide. Since Kagame is the former leader of the Rwandan Patriotic Front, the Tutsi militia that halted the killings in July of 1994, that version is as much about enshrining a Tutsi narrative of the conflict as it is about national reconciliation.

So Rwandan law echoes Germany's well-known prohibition of Holocaust denial, and aims at preventing conspiracy theorists and genocide denialists from destabilizing the country. But opposition journalists and politicians, as well as foreign NGOs, have been targeted for spreading "genocide ideology" and "divisionism." Rwandan prosecutors have aggressively pursued alleged genocidaires or "genocide deniers" living abroad, while stripping genocide suspects of due process rights within Rwanda itself.

Kobagaya could well turn out to be a liar and a murderer -- but he's already emblematic of the imperfect, highly-politicized, and even tainted process of doling out justice for the Rwandan genocide.

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How American prosecutors initially connected Kobagaya to the events in Birambo is unclear. A spokesperson for the Department of Justice's Human Rights and Special Prosecutions division refused to explain how Kobagaya first appeared on the government's radar, citing a department-wide policy of not commenting on ongoing cases.

The government's suspicions may have originated with Kobagaya's recent offer to record video testimony on behalf of Francois Bazaramba, a former neighbor whom a Finnish court sentenced to life in prison last year for his role in facilitating the violence in Birambo. In interviews with U.S. immigration officers, Kobagaya had claimed that he had lived in Burundi between 1993 and 1995. By offering firsthand knowledge of events in Rwanda in 1994, Kobagaya exposed his own lie.

The first motion filed in the Kobagaya case was a request for the Finnish government to share virtually all of the evidence it had gathered investigating Bazaramba, who was implicated in the genocide when his name appeared on a list of suspects that the Rwandan government published in 2006.

In a motion filed in January 2010, Kobagaya's legal team offers its own version of how their client came to be accused of mass murder. "In this case, the United States is serving as a conduit for the Rwandan government to investigate and prosecute Mr. Kobagaya," wrote lawyers Kurt Kerns and Melanie Morgan in a motion to dismiss the case filed in January 2010. The defense team alleged that Kobagaya had been investigated "at the behest of the Rwandan government."

Presiding judge Monti Belot found "no evidence" to support the defense's claim. Tom Ndahiro, a self-described "genocide scholar" who has been linked to Paul Kagame, also denied any coordination between the U.S. and Rwandan governments in identifying Kobagaya. "I don't think this was a case conducted by the government of Rwanda but by the United States," he told me. "I think there must have been something that triggered his -- that made him come back to the limelight. Otherwise there are many people who are accused of that crime but who have been here without the U.S. government's notice." Ndahiro says he does not formally work for the Kagame government, but when I called the Rwandan embassy in Washington, D.C., for comment on the case, someone passed the phone to him.

The Rwandan government is playing some role in how the case has proceeded. Preparing for the case, U.S. prosecutors traveled to Rwanda, where government authorities helped to find witnesses and take depositions. In a later motion, the defense noted that "all of the government witnesses have participated in gacaca" -- a sprawling Rwandan system of community-level courts dedicated solely to genocide cases -- either as defendants, witnesses or victims," and the government's own list of evidence against Kobagaya includes "gacaca records gathered by the U.S. government in Rwanda."

According to Duke University professor Madeline Morris, a transitional justice expert who has advised the Rwandan government, Rwanda imprisoned about 80,000 people accused of genocide-related crimes in the immediate aftermath of the conflict. The country's existing court system would simply have been incapable of processing all of the accused genocidaires. "In the Rwandan context the problem of finding evidence was enormous," Morris said. "A lot of people where dead, a lot of documents were destroyed, and a lot of people who were arrested weren't identified." The Rwandan government was leery of using the country's courts to prosecute tens of thousands of suspects solely on the basis of eyewitness testimony. "I think that politically and internally within the Rwandan government there was a lot of ambivalence about what the results would be if people were actually able to use that law," she said.

The solution was to create a new court system altogether. "Gacaca courts were to be based on informal testimonies by local people, including people who had had personal involvement in the genocide," explained Ruth Wedgewood, a Johns Hopkins University professor and member of the State Department's Advisory Committee on International Law. The Rwandan government empowered ad-hoc community courts to try and sentence genocide suspects. But the gacaca "doesn't have any formal court procedure," said Wedgewood. "It doesn't exclude hearsay or have a professional fact finder. Even if local people try to be fair they might be highly impassioned and there are no checks and balances."

The result is a system ripe for government abuse. The gacaca courts were forbidden from trying Tutsis, even though some Tutsi militia leaders massacred civilians both during and after the genocide. And, said Wedgewood, it "appeared more and more frequently that Kagame was trying to attack his enemies" through the court system. If a political opponent seemed potentially threatening, the Kagame government could accuse him of trivializing or denying the genocide, or of using the memory of the genocide to stir up ethnic division. Defense motions cite at least one case of a gacaca witness later being prosecuted as the result of supposedly "divisionist" court testimony. The defense has claimed that the U.S. prosecutor's reliance on Rwandan witnesses, who come from a country with limited free speech and gave their testimony as part of a dubious gacaca justice system, , amounts to a kind of witness tampering and a denial of Kobagaya's right to due process.

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It's not terribly surprising that the U.S. government's case depends on gacaca witnesses produced with the help of the Rwandan government. Investigating Kobagaya's case would likely have been prohibitively difficult or even impossible without going through the Rwandan government and justice system. But a U.S. courtroom is not a gacaca court, and the case raises the discomforting question of whether individual, small-scale responsibility for the Rwandan genocide is even provable by the American standard: beyond a reasonable doubt.

What if the answer turns out to be no? Despite the political and evidentiary challenges, basic moral and political necessity demands something more than just a blanket free pass for alleged lower-level perpetrators like Kobagaya -- especially in Rwanda, where, in the years immediately following the genocide, killers often lived side by side with survivors of the ethnic group they once victimized. The possible civil rights violations inherent in this case, both in the United States and Rwanda, are worrying. But so is the prospect of letting off a perpetrator of one of the worst mass killings of the 20th century.

This dichotomy between victor's justice and impunity might exist in Rwanda, but it doesn't have to operate in an American courtroom. Though the two crimes are difficult to separate entirely, Kobagaya is being tried for lying to the INS, and not for genocide. Judge Belot has tried to make the trial less about its political and moral context than about establishing what happened in Birambo in April of 1994. He has explicitly forbidden the defense from presenting a socio-historical theory of Kobagaya's prosecution, deciding that the role of the genocide in Rwandan politics is irrelevant in determining the defendant's guilt.

Of course, the possible role of the Rwandan government in intimidating witnesses is relevant, and the prosecution, in responding to the defense's motion to dismiss the case in January 2010, invited their opponents to use "the time-tested tool provided by the Constitution: cross-examination." In this small way, the American justice system -- a system where Hutu and Tutsi ethnic identities matter less than evidence and argument -- is giving the Rwandan genocide the kind of dispassionate, coldly judicial treatment that it has seldom received. Even the UN-sponsored International Criminal Tribunal for Rwanda has never prosecuted any Tutsis, according to Wedgewood.

Belot has tried to banish from his courtroom the larger debate over how and whether justice for the Rwandan genocide can be achieved. Yet the question lingers all the same. An American court presents an unprecedented test case for establishing personal culpability for the most notorious mass slaughter since World War Two. If Kobagaya is acquitted, justice for the Rwandan genocide might become a murkier concept than ever before.