Professor Peter Erlinder, noted criminal defense lawyer and past president of the National Lawyers Guild, was arrested Friday morning in Rwanda for “genocide ideology.” Erlinder’s representation of high-profile defendants before the International Criminal Tribunal for Rwanda (ICTR) has incurred the wrath of government officials, who have charged him with “negation of the Tutsi genocide” for mounting defenses of his clients that conflict with the government party line about who was responsible for the 1994 genocide.
The Rwandan government recently blasted the U.S. government for criticizing Rwanda’s restrictions on the media and human rights organizations in advance of the upcoming August national elections. A Human Rights Watch researcher had been barred from the country and several independent newspapers had been shuttered. Opposition supporters had been attacked and jailed.
Erlinder had recently filed a lawsuit in Oklahoma against Rwandan president Paul Kagame, which likely angered the government in Rwanda. Erlinder had traveled to Kigali, Rwanda to represent his client, Victoire Ingabire Umuhoza, who is also charged with “denying genocide.” Ms. Umuhoza happens to be opposing President Kagame in the forthcoming August elections. Since he arrived in Kigali, the government-sponsored media there has been very critical of Erlinder.
The “Law Relating to the Punishment of the Crime of Genocide Ideology,” unique to Rwanda, defines genocide broadly and does not require that one have any link to a genocidal act. It punishes legitimate forms of expression protected by international treaties. Human Rights Watch, Amnesty International, and the U.S. State Department have denounced the law as a means for political repression.
In an interview shortly before he traveled to Kigali, Erlinder stated that Ms. Umuhoza was not in Rwanda in 1994 and the charges against her are not supported by a verdict of the ICTR.
Regardless of the merits of the case, however, it is unsupportable that an attorney be arrested and jailed for vigorously representing his client. In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts. Adams later said his representation of those British soldiers was “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”
Bar associations including the National Lawyers Guild (NLG) and the National Association of Criminal Defense Lawyers (NACDL) have condemned Erlinder’s arrest. “There can be no justice for anyone if the state can silence lawyers for defendants whom it dislikes and a government that seeks to prevent lawyers from being vigorous advocates for their clients cannot be trusted,” said NLG president David Gespass. “Government intimidation and interference with criminal defense lawyers is unacceptable in all its forms and it fundamentally undermines justice,” according to an NACDL press release.
Erlinder should be released immediately. He should be given immediate access to counsel and the charges against him should be dismissed.
Marjorie Cohn is immediate past president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent. Her anthology, The United States of Torture: America’s Past and Present Policy of Interrogation and Abuse, will be published next year by NYU Press.