Fulgence Kayishema's arrest on May 24 in South Africa comes 29 years after the 1994 genocide in Rwanda. It's expected he will be the fourth fugitive from the former UN tribunal for Rwanda to be sent back to his country for trial. Over the years, a few accused persons who have taken refuge abroad have still fallen into the net of justice -- even if, in the eyes of the Rwandan authorities, their number is derisory.
Let's wind back. On March 22, 2012, Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) Boubacar Jallow handed over two CDs and stacks of documents to his Rwandan counterpart, Martin Ngoga, at a small ceremony in the offices of the ICTR in Arusha, northern Tanzania. Among other files, that of Fulgence Kayishema and his alleged involvement in the 1994 genocide of Tutsis was handed over to the Rwandan justice system, obliged to guarantee a fair trial if the fugitive was ever arrested.
It took another 11 years of tracking to arrest Kayishema. On May 24, 2023, he was finally found under the false name of Donatien Nibashumba on a wine farm in Paarl, 60 km north of Cape Town, South Africa.
Indicted in 2001 by the ICTR for genocide, complicity in genocide, conspiracy to commit genocide and crimes against humanity, former judicial police inspector Kayishema is accused of having planned and carried out the massacre of over 2,000 refugees at the Nyange church in northern Rwanda. With the complicity of Abbé Athanase Seromba, sentenced to life imprisonment by the ICTR in 2008, he is alleged to have ordered and supervised the demolition of the church, burying under its rubble those who had taken refuge there.
Expected transfer to Rwanda
In 2012, almost 20 years after its creation by the UN Security Council, the ICTR started preparing to close. Kayishema's was one of the files that the ICTR Prosecutor's Office decided to hand over to Rwanda. Since then, the ICTR has been replaced by the International Residual Mechanism for Criminal Tribunals, known as the "Mechanism". It is not yet clear whether South Africa will hand Kayishema over to the Mechanism or directly to Rwanda, but it is in Rwanda that he is expected to stand trial. "I don't think his transfer can cause any problems," the Rwandan prosecutor's spokesman Faustin Nkusi said the day after the arrest, "since they [the UN tribunal] have already sent us suspects."
Nkusi insists "the principle is that Fulgence Kayishema should be sent to Rwanda to stand trial". He will then be the fourth ICTR suspect to be transferred to his home country, out of six designated in 2012 by Prosecutor Jallow: Pastor Jean Uwinkindi (transferred on April 19, 2012), former militiaman Bernard Munyagishari (transferred on July 24, 2013) and former mayor Ladislas Ntaganzwa (transferred on March 20, 2016) were all sentenced to life imprisonment there.
Three-quarters of fugitives in Africa
The UN court's recognition of the Rwandan courts' ability to provide fair and impartial trials has paved the way for further extraditions. To date, however, of the 1,148 international indictments and arrest warrants issued by Rwanda, 1,094 have yet to be executed, according to Charity Wibabara, who heads the unit in charge of prosecuting genocide fugitives within the Rwandan Prosecutor General's Office. "So far," she explains on the sidelines of the 29th commemoration of the genocide, "25 prosecutions have been initiated by foreign countries and 29 genocide suspects have been sent to Rwanda by extradition, transfer or expulsion."
Africa alone is home to more than three-quarters of these fugitives, including the Democratic Republic of Congo (408) and Uganda (277). Outside the continent, France and Belgium are home to 47 and 40 respectively, and 23 are in the US.
"Almost 30 years later, we have a long list of fugitives still at large in several countries around the world, and we will continue to work with partner states and institutions to ensure that they are held accountable for the crimes committed during the genocide against the Tutsis in 1994," said Mechanism chief prosecutor Serge Brammertz of Belgium the day after Kayishema's arrest, which came after years of pressure on South Africa by his services.
The Mechanism and the Rwandan authorities together stress that like the last two ICTR suspects arrested - Félicien Kabuga and Fulgence Kayishema - most fugitives live under false identities and blend incognito into the crowd. But according to Rwanda's public prosecutor, the problem common to many African countries is a lack of political will.
Why don't France and Belgium extradite?
France and Belgium - two countries with close historical ties to Rwanda - are the Western countries with the highest number of fugitives on their soil. They are also those which have tried the most: six people in France and nine in Belgium. The following European Union countries have also extradited some fugitives to Rwanda: Sweden (3 judgments), Netherlands (2 judgments), Norway (1 judgment), Finland (1 judgment), Germany (1 judgment) and Denmark (0 judgment). But why don't France and Belgium extradite to Rwanda?
Jean-Michel Swalens, head of cooperation at the Belgian Embassy in Rwanda, and Colonel Laurent Lesaffre, Internal Security Attaché at the French Embassy in Kigali, cite in interviews with Justice Info a "fundamental" reason: neither France nor Belgium "can extradite its nationals", and Rwandan refugees have often ended up acquiring the nationality of their host country. In France, Lesaffre explains, there is also "a ruling by the Cour de Cassation, which is based on the non-retroactivity of the law". In other words, France "cannot extradite an individual to a country where the offence was not in the law at the time of the events". Since the crime of genocide did not exist in Rwandan law in 1994, France cannot extradite a person accused of this crime to Rwanda. "It's a question of law, you can think what you like about it, but it's a fundamental right of ours, which is why we don't extradite," adds Lesaffre. For him, this has nothing to do with allegations that, according to some suspects' lawyers, "if my client is extradited to Rwanda, he won't get a fair trial".
Better late than never
For the two diplomats, "the case begins on the date on which a country's justice system becomes aware of the presence of an alleged genocidaire on its territory. You can't guess it". In their view, this is the heart of the puzzle. In the specific case of France, Lesaffre points out, most of the investigations and trials that have been opened have been "on the basis of information and complaints from civil parties and organizations such as Survie, the Collectif des parties civiles pour le Rwanda (CPCR) and others, or articles in the press such as Mediapart".
Swalens also points the finger at international cooperation. "When international cooperation is easy and perfect, when everything is smoothed out, then everything speeds up, even for justice." For his French counterpart, "what's important is that justice is done, and better late than never. Presumed Rwandan genocidaires are likely to be on trial for a long time to come".
The full list of Rwandan fugitives, transferred or tried abroad
4 captured fugitives transferred from the ICTR
UWINKINDI Jean. He was arrested on June 30, 2010 in Uganda and handed over to the ICTR in Arusha, Tanzania. Transferred to Rwanda on April 19, 2012, he was tried by the High Court Chamber for International Crimes (HCCIC) and sentenced to life imprisonment on December 30, 2015. This sentence was confirmed on appeal on December 24, 2020.
MUNYAGISHARI Bernard. He was arrested on May 25, 2011 in the Democratic Republic of Congo (DRC) and handed over to the ICTR, from which he was transferred to Rwanda on July 24, 2013. Sentenced by the HCCIC to life imprisonment, his sentence was confirmed on appeal on December 24, 2020.
NTAGANZWA Ladislas. He was arrested in Kiyeye-Nyanzare, eastern DRC, on December 8, 2015, before being transferred to Rwanda by the ICTR on March 20, 2016. He was tried and sentenced on May 28, 2020 to life imprisonment by the HCICC, a sentence upheld on appeal on March 3, 2023. His application for review has been before the Supreme Court since March 31, 2023.
KAYISHEMA Fulgence. Arrested in South Africa on May 23, 2023, awaiting handover to UN jurisdiction or directly to Rwanda.
5 extradited to Rwanda by countries
BANDORA Charles. Extradited by Norway on March 10, 2013. Sentenced on May 15, 2015 by the HCICC to 30 years' imprisonment. Sentence upheld on appeal, with the crime of conspiracy reclassified as "planning" genocide.
MBARUSHIMANA Emmanuel. Extradited by Denmark on July 3, 2014. Tried and sentenced to life imprisonment on December 28, 2017. Sentence upheld on appeal.
MUGIMBA Jean Baptiste. Extradited by the Netherlands on November 12, 2016. Tried and sentenced to 25 years' imprisonment by the HCICC on March 17, 2021. Appeal pending.
IYAMUREMYE Jean-Claude. Extradited from the Netherlands on November 12, 2016. Tried and sentenced to 25 years' imprisonment by the HCICC on June 30, 2021. Appeal pending.
TWAGIRAMUNGU Jean. Extradited from Germany on August 18, 2017. Tried and sentenced to 25 years' imprisonment by the HCICC on March 16, 2023. Appeal pending.
10 expelled to Rwanda
KAGABA Enos. Deported from the United States on April 26, 2005 because he had been tried and sentenced by the Gacaca court of Gishyita, in Kibuye, in his absence. In Rwanda, he applied for a retrial and was granted leave to appeal. He was found guilty and sentenced to life imprisonment on October 6, 2011.
MUDAHINYUKA Jean Marie Vianney, alias Zuzu. Deported from the United States on January 28, 2011, tried by two separate Gacaca courts: the Rwezamenyo Gacaca court sentenced him to life imprisonment, and the Nyakabanda Gacaca court sentenced him to 19 years.
MUKESHIMANA Marie-Claire. Deported from the United States on December 27, 2011, she was sentenced in absentia by the Gacaca court of Secteur Mbazi to 19 years' imprisonment. She has requested a review of her case. Her case is before the Ngoma High Court, in the Huye district.
MUGESERA Léon. Expelled from Canada on January 24, 2012, his trial was handled under transfer law (as an extradition case) due to the agreement between Rwanda and Canada prior to his expulsion. He was tried by the HCICC and sentenced to life imprisonment on April 15, 2016. The sentence was confirmed on appeal on December 24, 2020.
NKUNDABAZUNGU Augustin. Expelled from Uganda after being arrested there on August 4, 2010. He was tried and sentenced to life imprisonment by the Gacaca court of Kiziguro, in the district of Gatsibo, eastern Rwanda.
KWITONDA Jean Pierre, alias Kapalata. Deported from Uganda in November 2010, he was tried and sentenced by the Gacaca court of Gikondo to life imprisonment. He has requested a review of his case, which is still pending.
BIRINDABAGABO Jean-Paul alias Bagabo Daniel. Expelled from Uganda on January 15, 2015, he was tried by the Ngoma High Court on May 25, 2017 and sentenced to life imprisonment. The sentence was upheld on appeal.
MUNYANEZA Jean de Dieu, alias Mutzig. Expelled from the Netherlands on March 21, 2015, he had been sentenced in absentia before the Gacaca. His case is being heard by the Tribunal de grande instance de Huye (south).
SEYOBOKA Jean-Claude. Deported from Canada on November 18, 2016, he was tried by a military court as he was a soldier at the time of the events. Sentenced to life imprisonment on December 3, 2021 by the Military Court.
MUNYAKAZI Léopold. Expelled from the United States on September 28, 2016, he was tried by the Muhanga Intermediate Court and sentenced to life imprisonment. On appeal, the HCICC acquitted him on July 20, 2018 of all genocide charges but sentenced him to nine years for genocide denial.
26 tried abroad
NIYONTEZE Fulgence. Sentenced in Switzerland to 14 years' imprisonment on 25 May 2000.
HIGANIRO Alphonse. Tried and sentenced in Belgium to 20 years' imprisonment in 2001.
Sister MUKANGANGO Consolata. Tried and sentenced in Belgium to 15 years' imprisonment in 2001.
Sister MUKABUTERA Julienne, known as Sister KIZITO. Tried and sentenced in Belgium to 12 years' imprisonment in 2001.
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NTEZIMANA Vincent. Tried and sentenced in Belgium to 12 years' imprisonment in 2001.
NZABONIMANA Etienne. Tried and sentenced in Belgium to 12 years' imprisonment in 2005.
NDASHYIKIRWA Samuel. Tried and sentenced in Belgium to 10 years' imprisonment in 2005.
NTUYAHAGA Bernard. Tried and sentenced in Belgium to 20 years' imprisonment in 2007.
MUNYANEZA Désiré. Tried and sentenced in Canada to life imprisonment in 2009.
NKEZABERA Ephrem. Died in Belgium in 2009, after appealing a 30-year prison sentence.
NERETSE Fabien. Tried and sentenced to 25 years' imprisonment in Belgium in December 2019.
BAZARAMBA François. Tried and sentenced in Finland to life imprisonment in 2012.
BUGINGO Sadi. Tried and sentenced in Norway to 21 years' imprisonment.
MUNGWARERE Jacques. Tried and acquitted in Canada in 2013.
SIMBIKANGWA Pascal. Tried and sentenced in France to 24 years' imprisonment in 2014. Sentence upheld on appeal.
MBANENANDE Stanislas. Sentenced in Sweden to life imprisonment in 2014.
RWABUKOMBE Onesphore. Sentenced to life imprisonment in Germany on December 29, 2015.
NTACYOBATABARA Yvonne. Sentenced to 6 years and 8 months in prison in the Netherlands in 2013.
Joseph MPAMBARA. Sentenced to life imprisonment in the Netherlands in 2010, after appeal.
BERINKINDI Claver. Sentenced to life imprisonment in Sweden on February 15, 2017, after appeal.
NGENZI Octavien. Sentenced in France to life imprisonment on July 6, 2016. Sentence confirmed on appeal in July 2018.
BARAHIRA Tito. Sentenced in France to life imprisonment on July 6, 2016. Sentence confirmed on appeal in July 2018.
RUKERATABARO Theodore. Sentenced in Sweden to life imprisonment on June 27, 2018. Sentence confirmed on appeal on April 22, 2019.
MUHAYIMANA Claude. Sentenced in France to 14 years' imprisonment on December 17, 2021.
BUCYIBARUTA Laurent. Sentenced in France to 20 years' imprisonment on July 12, 2022.
HATEGEKIMANA Philippe, alias Philippe Manier. On trial in France since May 10, 2023.
Cases of 3 fugitives transferred by ICTR to Rwanda
SIKUBWABO Charles
RYANDIKAYO Charles
NDIMBATI Aloys
Recommended reading
Rwanda: Suspect transfers signal new stage in genocide trials
Emmanuel Sehene Ruvugiro, Our Correspondent in Rwanda
