While the International Criminal Tribunal for Rwanda (ICTR) has in the past already been criticized for having a relatively low output compared to its huge budget, at least it contributed to justice with its convictions and a few mostly justified acquittals.
That legacy, however, is now being eroded by a series of incomprehensible acquittals by the appeals chamber, especially of people who were high-ranking officials at the time of the Genocide against the Tutsis.
Following the acquittal of former Trade Minister Justin Mugenzi and former Public Service Minister Prosper Mugiraneza, prosecutor general Martin Ngoga accused the tribunal of trend of exonerating the 1994 political leadership from responsibility in the Genocide, and expressed his fear that worse is yet to come. "There is reason to believe that this trend will continue," he warned.
Jean-Pierre Dusingizemungu, head of the Genocide survivors' organization IBUKA, said he was "deeply saddened" by the judgment. In an interview with Radio Rwanda, he said the appeals court decision "adds grist to the mill of those who would deny the Genocide."
Initially, Mugenzi and Mugiraneza had been sentenced to 30 years in prison having been found guilty of conspiracy to commit Genocide and direct and public incitement to commit Genocide. The conviction was based largely on their presence at two key meetings: a cabinet meeting held on April 17, 1994, in Gitarama (central Rwanda), and an investiture ceremony two days later for a new prefect of Butare, in southern Rwanda.
During the first meeting, it was decided to sack the prefect of Butare, Jean-Baptiste Habyarimana, who was considered the last obstacle to the Genocide in his prefecture. His removal was announced publicly the next day in a stadium in Butare, in the presence of government ministers and other civil and military leaders. After he was removed from office, Habyarimana was killed and massacres, which had so far been limited, became widespread and systematic in Butare prefecture.
The judges of the lower court accepted the prosecutor's argument that through their presence, Mugenzi and Mugiraneza participated in a conspiracy to commit Genocide and were guilty of incitement to Genocide by approving, even tacitly, the incendiary speech delivered in Butare on April 19 by the interim President Théodore Sindikubwabo.
However, the appeals court drew different conclusions. It found that while the sacking of the prefect Habyarimana certainly contributed to the increase in the killing, the government could have taken the decision for "political and administrative reasons" rather than necessarily to spread the Genocide. The government had complained about Habyarimana's absence from meetings. The appeals judges also took into consideration the defense's argument that the two Ministers did not know Sindikubwabo was going to make an incendiary speech.
Judge Liu Daqun disagrees
Yet one of the appeals judges did not agree with this analysis. Judge Liu supports the idea that the trial chamber observed that then Prime Minister Jean Kambanda had criticized prefet Habyarimana for being "inactive" and not having killings in his prefecture. He noted that the chamber had evidence that Habyarimana was regarded "among prefects who took action to stop killing and lootings."
In this context, the chamber took into account the joint communiqué issues on April 16 1994 by Habyarimana and the prefet of Gikongoro in direct response to violence in the border regions of the two prefectures, condemning the violence. Therefore, it had no doubts that Habyarimana would have been perceived by those who removed him as opposing the target killings of Tutsi civilians, Judge Liu pointed out, which therefore should have incriminated the two ministers.
In its assessment of the evidence, the trial chamber carefully considered and reasonably rejected the alternative explanations advanced by the defense for the reasons behind Habyarimana's dismissal from his post. It concluded that the defense's explanations for the dismissal did not manage to put in doubt the prosecution's arguments that his dismissal was part of a larger agenda aimed at furthering the killings in Butare.
"Notwithstanding this detailed and considered evaluation of the evidence, and without identifying any specific error, the majority maintains that the Trial chamber failed to eliminate the reasonable possibility that the two ministers agreed to remove Habyarimana for political or administrative reasons rather than for the purpose of furthering the killing of Tutsi in Butare," Judge Liu stated. "In my view, this conclusion is without foundation and exceeds the purview of the appeals chamber."
Judge Liu Daqun's statement reads that, considering the totality of the arguments advanced by the two Ministers, he would dismiss all their submissions concerning their convictions for conspiracy to commit Genocide and uphold the convictions.
Tough message to the court
According to prosecutor general Ngoga, the acquittals are tarnishing the ICTR's image. "This kind of a situation is causing a very sad ending for this court. Despite the fact that it had made some commendable contribution in the justice of the post-Genocide Rwanda, it is now systematically dismantling its legacy; by the time it closes shop, we don't know what will be remaining," Ngoga said, adding that if it were possible, Rwanda would take action. "If there was a way to do something beyond just complaining, we'd have done something. This is happening at the time when we have very little options remaining. We are not going to have these people and try them again; we have to respect these rulings because we have no options, but we don't like it."
Ngoga also referred to the court's decision considering Jean Kambanda's confession. The former PM pleaded guilty of having led a government (the two ministers included) which prepared and executed the Genocide. "If cabinet ministers are innocent what importance does the court attach to Kambanda's confession?"
So far, ICTR has indicted 92 individuals; three individuals remain at large as fugitives, 15 are appealing their sentences, and 12 have been acquitted and released from detention. The Tribunal has finished proceedings against 32 individuals who are currently serving prison sentences, 13 who have finished their sentences and have been released, and three who have died in custody.
Rwanda's prosecutor general does not only have beef with the rulings of the ICTR's appeals chamber, he also criticizes its lack of follow-up on cases that have been referred to other countries, notably France. Two cases were referred to France under the tribunal's completion strategy, yet until now the trials against Laurent Bucyibaruta and Wenceslas Munyeshyaka have still not started.
Ngoga challenged the tribunal to ensure that the cases are tried, monitored or withdrawn back to the tribunal.
Since Jean Uwinkindi was transferred from the ICTR last year to Rwanda, the tribunal established a monitoring mechanism in which its representatives are present at each of Uwinkindi's court appearances and closely following his treatment in detention.
"The ICTR is monitoring Uwinkindi's case here, but they should create such mechanisms for France as well. For us, they brought the case, we took it to court and any delays are caused by the defendant himself. Yet France, which has done nothing about their two cases, is not even monitored, and the ICTR has not taken back the cases! We see it as a double standard," Ngoga observed.
Therefore, the prosecutor general announced that if ICTR doesn't take back the two cases in France or create monitoring mechanisms, Rwanda will stop working with the Uwinkindi monitors. "If they want to take back their prisoner, they can come and do it! We are surely tired of this."
Ngoga also criticized the French judiciary. "If inactivity is part of their independent justice, then it's a criminal independence. In my view, independence means doing your job; it doesn't mean being dormant."