USA Africa Dialogue Series - FW: [IAGS-list] A Canadian Supreme Court justice and the Rwanda genocide

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From: Kissi, Edward
Sent: Saturday, October 05, 2013 8:40 AM
To: Kissi, Edward
Subject: FW: [IAGS-list] A Canadian Supreme Court justice and the Rwanda genocide



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From: iagslistserv@googlegroups.com [mailto:iagslistserv@googlegroups.com] On Behalf Of Gerald Caplan
Sent: Friday, October 04, 2013 7:18 PM
To: IAGS
Subject: [IAGS-list] A Canadian Supreme Court justice and the Rwanda genocide



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Supreme Court of Canada nominee Marc Nadon, left, arrives to testify before an all-party committee to review his nomination with Justice Minister Peter MacKay in Ottawa on Oct. 2, 2013.

REUTERS


Rwandan genocide case a blight on record of Canada's new Supreme Court justice


Gerald Caplan


Published Friday, Oct. 04, 2013 05:12PM EDT

Last updated Friday, Oct. 04, 2013 05:16PM EDT

Much hot air is being expended on whether the Red Wings once "drafted" young Marc Nadon to their farm system. But for Stephen Harper's choice for our next Supreme Court justice, there is a far more serious issue that calls into question Justice Nadon's suitability for the Supreme Court. The case, curiously enough, concerned the 1994 Rwanda genocide and the murder by Hutu extremists of some 800,000 Tutsi civilians.

In Rwanda, 18 months before the genocide, a Rwandan Hutu fanatic named Leon Mugesera made an inflammatory anti-Tutsi speech to a Hutu gathering. The speech was recorded, and even Mr. Mugesera's ruling party repudiated his incendiary remarks. He was forced to flee the country, landing up in Canada and settling in Quebec City.

The Canadian government - then Liberal, but there is little partisanship in this story - soon began proceedings to deport Mugesera based on his incitement to genocide. In 2003 his case finally reached the Federal Court of Appeal. A three-man panel of the Court, including Justice Marc Nadon, heard his appeal and unanimously held that the government had failed to prove that Mugesera had committed incitement to genocide.

But to do so, the Court had to twist the evidence out of all recognition. Despite expert testimony, it accepted a completely fraudulent reading of Rwanda history. And it ignored what Mr. Mugesera's own words unmistakably meant.

The 1994 genocide in Rwanda was the culmination of 35 years of meticulously documented discrimination and violence by the Hutu dictatorship of Rwanda against the country's Tutsi minority. Virtually every historian who had written about the genocide accepted this record, as the three justices were told. Yet they chose, apparently wilfully, to ignore this crucial background to Mugesera's speech.

In 1990, a group of exiled Tutsi launched an invasion into Rwanda. In retaliation, the Hutu government unleashed the dogs of ethnic war against all Tutsi in the country. A carefully orchestrated barrage of dehumanizing anti-Tutsi propaganda was launched accompanied by a series of massacres of Tutsi civilians. It was in this inflamed context that Mugesera, in November 1992, made his speech to a large Hutu audience. He peddled the bizarre Hutu-concocted conspiracy theory that the Tutsi were not genuine Rwandans but an alien, foreign element whose roots were in Ethiopia or Egypt and who therefore did not belong in Rwanda. He pulled no punches in what he expected of his audience.

In the translation of his speech used by the court, recorded in the final decision, Mugesera referred to parents whose children have joined the invaders - obviously Tutsi - and asked, "Why do they not exterminate them? Why.do they not exterminate all of them?"

Speaking of those Tutsi who fled Hutu pogroms at independence 30 years earlier he said, "The mistake we made in 1959..is to let you leave." Had they instead all been killed, they could never again be a threat.

Alluding to the Hutu myth of the Tutsis' foreign roots he said: "I am telling you that your home is in Ethiopia, that we will send you by the Nyabrongo River [a Rwandan source of the Nile flowing into Ethiopia ] so you can get there quickly." He did not mean by boat.

One of Mugesera's favourite epithets throughout the speech was "inyenzi," Rwandan for cockroach, the dehumanizing term which Hutu extremists invariably called Tutsi. It is nothing to kill cockroaches.

No one who knows Rwandan history can have any doubt about Mugesera's purpose. Yet unaccountably, Justice Nadon and his colleagues ignored both the seemingly unanswerable evidence and the crucial context of his speech. Instead, despite what Mugesera himself said, they concluded that he "did not make an explicit call for the killing of Tutsi.never advised throwing the bodies of Tutsi into rivers," and that it was "not established that Mugesera was prompted by ethnic considerations."

This unexpected judgment shocked the Canadian human rights community, which very much included Irwin Cotler, then minister of justice and himself well-versed in the 1994 genocide. Accordingly the government, still anxious to deport Mugesera, appealed the decision to the Supreme Court of Canada. According to Prof. Noah Novogrodsky, then director of the University of Toronto Law School's international human rights program and an intervener at the Supreme Court, "We were saying that Canada should not be a safe haven for war criminals and that inciting genocide means that this person is deportable as a war criminal."

The Supreme Court concurred. In 2005, in a unanimous 8-0 decision that constituted serious rebuke to the Federal Court of Appeals panel, the Court agreed there was substantial evidence that Léon Mugesera had indeed incited genocide in Rwanda. After seven more years of milking Canada's judicial appeals system, the Harper government finally deported Mugesera to Rwanda to stand trial.

But if Mugesera is gone, his victory at the Federal Court of Appeals lingers, as the appointment of Justice Nadon to the Supreme Court reminds us. Does such a precedent qualify a man for the highest court in Canada?

© 2013 The Globe and Mail Inc. All Rights Reserved.


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