Peter Erlinder and his Rwanda High Court bail appeal (Analysis)

Posted June 16, 2010 in Journalism, Rwanda

Peter Erlinder presented his defense with his Kenyan lawyers in High Court on Monday.

As a guest and journalist in Rwanda, I've been trying to find an expert on the Erlinder case who can explain to the world what's going on in court.

There may be such an expert, but I don't know who it is. So here's what I know, having attended Erlinder's hearings.

What is Peter Erlinder's crime?

Erlinder is accused of genocide denial, which is punishable by a prison sentence under Rwandan law. Critics say the law is too broad and can be used for political reasons, while proponents say it is crucial to maintaining Rwanda's peace and preventing another genocide.

What will Erlinder plead?

Erlinder will plead not-guilty.

Erlinder has defended and attained the acquittal of several accused genocide masterminds at the International Criminal Tribunal for Rwanda (ICTR), is representing widows of the assassinated former presidents of Rwanda and Burundi in a case against current Rwandan president Paul Kagame, and is defending Rwandan presidential hopeful Victoire Ingabire in another genocide denial case. He and his lawyers will argue that each allegedly-criminal statement he has made was made as a lawyer defending his clients: conditions under which he should be granted immunity.

As for the works Erlinder published outside of his professional duties: he will argue in each case that he never denied a genocide of Rwandan Tutsis and that he legally implied that other events transpired in addition to the genocide of Tutsi Rwandans he agrees happened.

Finally, Erlinder will argue that he made no questionable statements on Rwandan soil and that Rwandan law should not apply to statements he made elsewhere.

What is the prosecution's case?

The prosecution will cite Erlinder's writings and argue that he has made statements outside of his role as lawyer which deny the genocide of Rwandan Tutsis.

They will also argue that Erlinder's publications outside of Rwanda have penetrated Rwanda and therefore Rwandan law should apply while he is here.

Finally, they will argue that Erlinder leads a network of genocide deniers, either ideologically or literally, and is thus a danger to Rwanda's national security.

What is going on in court right now?

Right now, the courts are deciding whether Erlinder should be granted bail.

Erlinder has argued that he needs bail so he can get proper treatment for several medical conditions (he's been to hospital four times since his arrest), and he has promised to return to Rwanda to face the government's allegations. As collateral, he has staked his reputation and told the courts they can have him kicked off the ICTR defence team (which he leads) and professionally disciplined by the American Bar Association.

The prosecution wants the bail request denied, arguing that Erlinder cannot be trusted to return to Rwanda should he be released, that he will tamper with potential witnesses and evidence, and that he is too dangerous to national security to be allowed out of Rwanda or even out of prison.

Last Monday, the intermediate court judge sided with the prosecution and denied Erlinder bail. Erlinder is appealing that decision in high court.

What are Thursday's possible outcomes?

The judge will not decide whether Erlinder is guilty or not: he will only decide whether to grant bail.

Should the judge grant Erlinder bail, Erlinder will likely return to America and be reunited with his family, under the condition that he comply with the Rwandan prosecution and return to Rwanda when summoned for questioning.

The judge could deny Erlinder bail, in which case he will remain in prison while the prosecution gathers evidence against him for his trial, which will likely take place in July.

I do not know whether Thursday's bail decision can be appealed in Rwanda's Supreme Court.

Finally, the judge could grant bail with restrictions. This would satisfy neither Erlinder nor the prosecutors, but in his appeal hearing Monday Erlinder hinted that he would accept any restrictions the judge deems necessary. Nobody has stated what those restrictions might be.

Erlinder's client, Victoire Ingabire, was previously granted bail but her passport was confiscated.