By Katherine Iliopoulos
As the mandate of the International Criminal Tribunal for Rwanda draws to a close, the Chief Prosecutor Hassan Jallow has been accused of impeding the fulfilment of the Tribunal's objectives and undermining its credibility and legacy by not prosecuting members of the victorious Rwanda Patriotic Front for crimes committed during the 1994 genocide.
Human Rights Watch, along with other human rights organisations such as Amnesty International, has criticised the Office of the Prosecutor for failing to bring indictments against senior commanders of the RPF, who fought against the Hutu Interahamwe and whose commander, Paul Kagame, is the incumbent President of Rwanda. While the Rwandan judiciary has prosecuted members of the RPF for crimes committed in 1994, HRW has argued that these cases concerned lower-ranking soldiers, and not for war crimes or crimes against humanity, but for violations of the Rwandan penal code.
Evidence of RPF Crimes - But no Indictment
Whilst there is no suggestion that the RPF committed genocide, Robert Gersony, who headed a team dispatched to Rwanda by the Office of the UN High Commissioner for Refugees, had reportedly estimated that from April to August 1994 the RPF systematically killed between 25,000 and 45,000 Hutus and others - between 5,000 and 10,000 for each month - as it made its way toward Kigali. This constituted the first convincing evidence of widespread, systematic killings by the RPF. Gersony, who collected the data between 1 August and 5 September 1994 - after the genocide - was soon convinced that the RPF had engaged in "clearly systematic murders and persecution of the Hutu population in certain parts of the country" of which UN Secretary-General Boutros Boutros-Ghali was informed in September or October.
In a move that smacks of political interference, Gersony was told not to write a report.
HRW estimated the number of Hutu murders to be approximately 30,000, in line with other press reports. HRW described indiscriminate massacres of individuals who were not bearing arms, and the executions of those deemed to have been génocidaires, and given the widespread and systematic nature of these crimes, as well as their magnitude, HRW has concluded that "they were too many and too much alike to have been unconnected crimes executed by individual soldiers or low-ranking officers. Given the disciplined nature of the RPF forces and the extent of communication up and down the hierarchy, commanders of the army must have known of and least tolerated these practices".
And Amnesty International has declared that "Evidence of crimes committed by RPF in 1994 have been transmitted to the prosecutor's office either in private and confidential communications, in publications of non-governmental organizations and other sources, or through depositions of its own expert witnesses in Arusha".
Prosecutor Jallow says that he has done everything to investigate crimes on both sides in relation to the atrocities of 1994 but he informed the Security Council in June this year that he did not have an indictment ready in relation to allegations and evidence of RPF crimes that had been collected over the past decade.
The Office of the Prosecutor did hand over one RPA file to Rwanda for prosecution. The 'Kabyagi case' concerned the most widely known and condemned of executions by RPF soldiers: the slayings by four RPA members of the Roman Catholic Archbishop of Kigali, three other bishops, and ten priests at Byimana parish, near Kabgayi in June 1994. But HRW expressed concern that the prosecutor did not pursue more senior commanders who had been involved in the military operation and against whom evidence exists, instead presenting the murders as aberrational, spontaneous acts of misconduct by low-level soldiers. HRW officials met with the Prosecutor on March 23, 2009, and presented evidence that called into question the Rwandan prosecution's theory that the killings were spontaneous acts by low-level soldiers and shows instead that this was an attempt to cover up responsibility for a planned military operation. The OTP denied that it possessed evidence that the incident was part of a planned military operation.
HRW also claimed that the domestic trial was a sham, and accused the OTP of failing to monitor the proceedings adequately, but Jallow maintained that the trial met international fair trial standards.
President Kagame, often lauded as a 'saviour' for helping to bring the genocide to a halt, has escaped prosecution but not serious allegations of criminal conduct. In its report entitled 'Rwanda: The Preventable Genocide', the International Panel of Eminent Personalities cited evidence that the RPF "killed civilians in numerous summary executions and in wholesale massacres" as they sought to establish control over the local population towards the end of and after the genocide. While many Hutus fled, hundreds of thousands of Hutus remained in the country during this period and were herded by the RPF into camps. The Report said that Kagame, who was then Vice-President, explained the policy on Radio Rwanda in July 1994: "Harmful elements were hidden in bushes and banana plantations. Therefore a cleaning was necessary, especially to separate the innocent people from the killers".
Pulling the Genocidal Trigger: The Assassination of President Habyarimana
The most serious allegation that has been levelled at Kagame - and the RPF command - is that he planned and ordered the event that marked the beginning of the genocide: the shooting down of the airplane carrying President Habyarimana and others on April 6, 1994. French investigative judge Jean-Louis Bruguière determined in 2006 that Kagame was responsible for the attack - which also claimed the lives of three French crew members - and that he be prosecuted by the ICTR since sovereign immunity posed an obstacle to his prosecution in France. A similar investigation in Spain drew the same conclusions.
ICTR expert witness, the late Allison Des Forges, and others, were of the opinion that an investigation of the attack was within the mandate of the ICTR. "I am of the same opinion of Judge Goldstone, the first prosecutor of the ICTR, that this is part of the tribunal's mandate," said Des Forges during her cross-examination in the trial of Tharcisse Renzaho before the ICTR in March 2007.
In 1996, former ICTR investigator Michael Hourigan had opened an investigation into the assassination, during which thee informants claimed direct involvement in the attack, and implicated President Kagame. The revelations were initially welcomed by then ICTR Judge Louise Arbour, but who later ordered Hourigan to end his investigation, claiming that it was not part of the ICTR mandate.
Jallow's predecessor Carla del Ponte, in her recent book 'The Hunt: Me and My War Criminals', opined that the attack was not a matter for investigation by the Office of the Prosecutor: "it would have been difficult to initiate a procedure before the tribunal against the people responsible for the assassination of the president ... the crime is not necessarily a war crime and the jurisdiction of the tribunal was limited to war crimes in the broad sense".
Indeed, although the attack on Habyarimana's plane was an act of murder and terrorism, crimes which are subsumed under the broader category of 'war crimes' under the ICTR Statute, the victim must be a non-combatant in order for a prima facie case for the commission of a war crime can be made out.
As ICTR and ICTY Defence Counsel Peter Robinson and Golriz Ghahraman demonstrate in their 2008 article, 'Can Rwandan President Kagame be held Responsible at the ICTR for the Killing of President Habyarimana?', the President was Commander in Chief of the Rwandan armed forces and was actively involved in the war effort at the time of his death, therefore he was not a protected person under the Geneva Conventions. Thus the killing cannot be prosecuted as murder as a war crime under the ICTR Statute.
They do make the case however, that the attack may be characterised as perfidy under Article 37(1) of Additional Protocol I, which reflects customary international law, and provides that: "acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy".
The perpetrators concealed the missiles under a pile of refuse to gain access to an area under the flight path of the aircraft. This was said to have violated the cease-fire agreement between the RPF and the Government of Rwanda, and it was this agreement that allowed RPF units to be stationed in Kigali in the first place. Thus the RPF committed a breach of confidence by using the truce to gain a military advantage in the sense that it 'feigned an intent to negotiate under a flag of truce' as per Article 37(1)(a). In the final analysis however, there is an acknowledgment that the law in this area is unclear.
The principle of proportionality was also considered by Robinson and Ghahraman, but they argued that the significant military advantage gained by the death of Habyarimana far outweighed the collateral damage - the deaths of the Burundian officials - which was also an unforeseen and unexpected consequence, since the officials only decided to board the flight at the last minute.
Perhaps the assassination of Habyarimana cannot be prosecuted at the ICTR. However if there is evidence that Kagame ordered or was otherwise responsible for atrocities against civilians, there is no bar to his prosecution, under the ICTR Statute, by virtue of his status as head of state.
Who Should Pursue Justice for RPF Crimes?
It appears that there is evidence of significant RPF atrocities that could be used to prosecute RPF commanders at the ICTR. Such prosecutions would enhance the legitimacy of the Tribunal by making it appear 'even-handed'. At the International Criminal Tribunal for the Former Yugoslavia, indictments have not been confined to Serbian and Croatian war crimes suspects: Bosnian Muslims have also been prosecuted.
But in an interview with Victor Peskin in 2003, then ICTR Prosecutor Richard Goldstone said that the magnitude of the genocidal crimes committed by the Hutus far exceeded that of RPF massacres. Citing resource constraints as another factor, he explained that, "I certainly didn't have evidence of massive crimes committed by the RPF. I wouldn't have issued an indictment against [Bosnian Muslims at the ICTY] for the sake of ... saying what an even-handed chap I am. I think crimes have to be of the magnitude that justify doing it".
And in an interview with Canadian journalist Carol Off, Louise Arbour explained why prosecuting the RPF would hinder efforts to investigate and prosecute the genocidal acts of the Hutus: "How could we investigate and prosecute the RPF while we were based in that country? It was never going to happen. They would shut us down".
The refusal so far to bring indictments against senior RPF commanders at the ICTY would not represent such a blow to the victims of RPF crimes if there did not exist serious doubts as to the independence of the Rwandan judiciary who so far has failed to target RPF commanders and other high-ranking officers.
In any event, there does remain the question of the need to place on the historical record certain determinations and factual judgements that are relevant to the 1994 genocide, a function that is not and ought not be reserved exclusively for the ICTR. No independent international inquiry was ever initiated to establish responsibility for the attack on Habyarimana which on all accounts was also an act of terrorism. The UN Security Council did, in Resolution 918 (1994), recall a previous request to the UN Secretary-General "to collect information on the responsibility for the tragic incident that resulted in the death of the Presidents of Rwanda and Burundi" but it appears that no such investigation was finalised by the Secretary-General. In contrast, the Special Tribunal for Lebanon was created ultimately through a decision of the UN Security Council in the interests of ensuring accountability for the assassination of Lebanese Prime Minister Rafik Hariri.
"If it turns out the RPF shot down [Habyarimana's] airplane, the history of the genocide must be rewritten," said Carla del Ponte in 2000. "Although that will not alter Hutu extremists' responsibility for the death of hundreds of thousands of people, it will cast the RPF under a completely different light, because so far the RPF has been considered in the West both as the victims and saviours who stopped the genocide".
