ICTR: Rwandan genocide
- no master plan (long version)
19 December 2011 -
4:05pm | By International Justice Tribune
Time has the same
effect on trial judgements rendered by the International Criminal Tribunal for
Rwanda (ICTR) as acid on limestone. On December 14, 2011, the Appeals
Chamber of the ICTR reduced Colonel Bagosora’s
factual responsibility in the genocide to a minimum, and his life sentence
to 35 years. After seventeen years of investigations and trials, the ICTR ends up with no mastermind behind
the genocide.
By Thierry Cruvellier*
It took 14 years from
its creation for the ICTR to render the judgement that had been from the start
the most eagerly-awaited and the most central to its work on the genocide of
the Tutsis in Rwanda, between April and July 1994.
On December 18, 2008,
it found Colonel Théoneste Bagosora guilty of genocide, crimes against
humanity and war crimes and sentenced him to life imprisonment. Since 1994,
Bagosora had been the ‘number one suspect by default’ of the genocide. However,
when it was issued, the judgement by the Trial Chamber appeared iconoclastic.
After hearing 242 witnesses, admitting some 1,600 exhibits, producing 30,000
pages of transcripts and receiving 4,500 pages of closing arguments by the
parties, the trial judges came to a decision that profoundly questioned the
nature of the genocide in Rwanda as a carefully orchestrated crime.
Suspicious witnesses
Suspicious witnesses
Since 1998, the ICTR’s chief prosecutors had asserted that the genocide was a conspiracy that had been relentlessly planned and executed by supporters of ‘Hutu Power’, assembled around Colonel Bagosora, who was cabinet director in the Ministry of Defence at the time. From then on, Bagosora was the emblematic face of the proceedings carried out in Arusha.
Ten years later, when
Bagosora was finally convicted, all elements of the conspiracy alleged by the
Office of the Prosecutor were dismissed or found unconvincing. The creation and
work of a military commission chaired by Bagosora in 1991 were not considered
as criminal; the 1992-reported warning by the accused that he was going to
“prepare the apocalypse” proved to come from two highly suspicious witnesses
who contradicted themselves; Bagosora and others had played a role in the
creation, arming and training of civil militias, but the judges could not
conclude that “these efforts were directed at killing Tutsi civilians with the
intention to commit genocide”; the organisation of civil defence was
insufficient to claim conspiracy; the preparation of lists targeting Tutsis and
members of the political opposition did “not show that the purpose of the lists
was to identify Tutsis, as such, and to eliminate them”, so Bagosora escaped
the accusation of having participated; there was “considerable evidence” of
death-squad activity in Rwanda before April 1994 and several sources say that
Bagosora was a member of them. Yet the evidence was indirect, second-hand,
proved nothing in legal terms, and did “not mean that [they were] preparing a
genocide.”
Historic judgement
The Bagosora judgement was undoubtedly one of the most scrupulously-written of all those reached by the Arusha tribunal. Rarely in the analysis of the birth of the genocide had a more nuanced tone been used. The extermination of Rwandan Tutsis had taken place, but its history was not that of a ‘tropical Nazism’.
“It is not argued that the accused simultaneously agreed to a plan, or that such a plan consisted of a single course of equally-divided or unified conduct,” carefully wrote the judges.
“Instead, the proper
inference to be drawn from the evidence is that at various times, each of the
accused agreed to participate in a larger, lengthier effort to increasingly
homogenise Rwandan society in favour of Hutu citizens, with the objective of
killing Tutsi civilians, as required. It is their participation in this process
– and the willingness to create or exploit various opportunities to achieve it
– which is the hallmark of their agreement.” This was a complex and almost
volatile analysis. The 600-page decision also read like a painful inventory of
the mediocrity of the assembled evidence and its devastating effects. It was a
measure of the extraordinary flimsiness of the work carried out by the
prosecution to support such extraordinarily heavy charges.
After the presidential
plane was shot down on April 6, 1994, a wave of political assassinations marked
the beginning of the massacres. There was no
credible and reliable proof of Bagosora’s direct
participation, the trial judges wrote. But he was found guilty
by inference. Considered to be the person having authority over the
army at the time, the order to attack could only have come from him, said the
judges. The same applied to the murder of ten Belgian peacekeepers on April 7. Bagosora
knew and his inaction served to
encourage the killers. He was therefore responsible.
Most of the
conclusions on the other charges brought against the alleged ‘brains’ of the
genocide read like a litany of powerlessness. ‘The Prosecution has not
presented any direct evidence that Bagosora…,” repeated the judges tirelessly.
But the accused knew that the soldiers under his authority were killing and,
therefore, he was responsible.
No formal authority
Fifteen years after the events, Bagosora seemed punished in the same way that he was accused: by deduction, and by default. “A detailed analysis of the list of offices within the Ministry as well as the organisational chart reflects that the post of directeur de cabinet was the most senior one after that of the Minister in the Rwandan Ministry of Defence,” said the judges. “He would replace the Minister in his absence. This occurred in April 1994 when Augustin Bizimana, the Minister of Defence, was on official mission in Cameroon.”
During the three days
in which the Minister was away, from 6-9 April, Bagosora exercised his
authority. After 9 April, the Minister of Defence returned to the country and
Bagosora’s formal authority over the army was no longer legally apparent. The
possibility of finding him guilty under the same legal principle disappeared.
All the crimes allegedly committed by Bagosora after 9 April fell away, without
exception. But the infamous colonel had nevertheless been found guilty and
sentenced to life.
“The fact of daring to
say with humility that, in the Bagosora case, there was insufficient factual
evidence to substantiate the theory of an arrangement is a decision with
considerable impact, especially in terms of political practices,” said Rwanda
expert André Guichaoua, after the 2008 judgement. He now describes Bagosora as
a “temporary project manager.”
Ruling
In its judgement, the Trial Chamber recalled that “when confronted with circumstantial evidence, it may only convict where it is the only reasonable inference.” Three years later, the Appeals Chamber has just turned this very argument against the trial judges. In 300 pages, it slashed the trial judgement so deeply that, 17 years after the court was created, it seems almost impossible to understand what's the narrative of the genocide that has come out of the most important trial at the ICTR.
Because the appeals
judges found that Bagosora’s order or authorisation was not “the only reasonable inference” in the killings of 7-9 April, the direct responsibility of Bagosora in
the murders was annulled. -- -- (DO- thus, direct responsibility is established only when
order or authorization is the only reasonable inference ? -- interesting) --- What’s left? “The Appeals Chamber finds that
Bagosora had sufficient knowledge of his subordinates’ criminal conduct in
Kigali on 7, 8, and 9 April 1994 to trigger his duty as a superior to prevent
their crimes.” Bagosora remains guilty as a superior who failed to prevent
those killings, as well as a number of massacres in different parts of Kigali,
and the killings at roadblocks in the capital city.
To have an idea of the
basis on which Bagosora is finally convicted, one has to read and understand
the following sentence: "While the Trial Chamber could not have relied
upon the finding that Bagosora must have ordered or authorised the crimes to
find that he bore superior responsibility for failing to fulfil his duty to
prevent them, Bagosora’s convictions may be upheld if the Trial Chamber’s
factual findings support the conclusion that Bagosora failed to take the
necessary and reasonable measures to prevent these crimes." The
Appeals Chamber found that they do – and only that.
Almost 18 years after
the genocide, the ICTR essentially concluded that “there is no finding or
sufficient evidence that Bagosora ordered or authorised any of the killings for
which he was found to bear superior responsibility.” He is solely held
responsible for failing to prevent crimes committed by his subordinates
over a period of 65 hours during which he had effective control. As a
consequence, a majority of judges approved a reduction of his sentence from
life to 35 years. Two dissenting judges called it a “monumental reduction.” But
it was the departure from the story of the “mastermind of the genocide” that
appeared monumental. There was a genocide, yes, but it was brainless.
(*) A detailed
analysis of the first instance judgement will soon be published in the DVD book
of the film"Arusha
from Arusha".
