Global Policy Forum

By Katherine Iliopoulos

In what Prosecutors have described as "the most important genocide trial" since the crime was legally defined in the Genocide Convention, the International Criminal Tribunal for Rwanda today convicted the former Rwandan military director Col. Théoneste Bagosora, of genocide, crimes against humanity and war crimes. Bagosora, who had operational command of Rwanda's military at the time the Rwandan genocide began, was sentenced to life imprisonment along with two other ex-army officers. The three officers were acquitted of conspiring to commit genocide before 7 April 1994. In addition, the Tribunal acquitted General Gratien Kabiligi, head of the military operations bureau of the army general staff, of all charges. Bagosora's lawyer indicated that his client would appeal the counts on which he was convicted.

The Prosecution had charged the accused with conspiracy to commit genocide, genocide, crimes against humanity and war crimes, based on direct or superior responsibility, for crimes committed in Rwanda in 1994. Bagosora was accused of heading a committee of Hutu extremists known as the ‘Akazu' - the small powerful ruling elite of Hutu family members and relatives who were said to have conspired to exterminate the Tutsis - and of ordering and participating in the massacres against ethnic Tutsis and moderate Hutus.

The Tribunal determined that Bagosora was responsible for the killing of political leaders, Tutsi civilians and UN peacekeepers carried out by troops under his effective control. It found that these actions would not have been carried out unless they "formed part of an organised military operation pursuant to orders from superior military authorities". For his role in organising the killings, Bagosora was convicted of genocide and genocide-related charges in relation to the Tutsi population; widespread and systematic attacks on the Tutsi civilian population as crimes against humanity; and, in the context of an internal armed conflict, killings and acts of violence against civilians and ten Belgian peacekeepers and other crimes constituting serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II (war crimes).

However the Tribunal said there was not sufficient evidence to prove beyond a reasonable doubt that Bagosora and others had, as the prosecution charged, conspired beforehand among themselves "to work out a plan with intent to exterminate the civilian Tutsi population and eliminate members of the opposition, so that they could remain in power". The indictment had listed the elements of this plan as "recourse to hatred and ethnic violence, the training of and distribution of weapons to militiamen as well as the preparation of lists of people to be eliminated".

In what known as the ‘trial of the military', the Tribunal combined the Bagosora trial with that of three other officers of the Rwandan Armed Forces (FAR): Gratien Kabiligi, former chief of military operations at the general staff headquarters; Aloys Ntabakuze, who commanded the Para commando battalion; and Anatole Nsengiyumva, the former commander of the military sector of Gisenyi, northern Rwanda. The joint trial commenced on 2 April 2002. At the close of the trial in June 2007, Bagosora insisted that he was "a victim of ignominious propaganda", denied responsibility for any killings and urged the judge to "rehabilitate" him into society.

The immediate background to the genocide, and Bagosora's part in it, lay in a political settlement the year before. In an effort to end Rwanda's four-year civil war, the Arusha Accords were signed in 1993, which provided for a system of civilian and military power-sharing between the President's MRND party, the Tutsi-led RPFand other opposition parties. The Accords led to a significant decrease in the powers and privileges previously enjoyed by those close to President Juvenal Habyarimana.

Théoneste Bagosora held the position of directeur de cabinet – the highest position of authority - in the Ministry of Defence with authority over the Rwandan army. On the basis of circumstantial evidence, it was alleged that between 1990 and 1994, Bagosora was part of the conspiracy to eliminate Tutsi and the Hutu opposition as part of the President's plan to remain in power. In support of the its case, the Prosecution alleged that Bagosora strongly opposed the Arusha Accords, quitting the negotiating table in Tanzania in 1992, openly stating that he was returning to Rwanda to "prepare the apocalypse". Bagosora encouraged soldiers to reject the Accords, stating that any attempts to enforce them would inevitably result in the extermination of Tutsi, which he said was the only solution to the political impasse. In 1991, Bagosora allegedly helped draft a document that described the minority Tutsi ethnic group as the enemy which was circulated in the Rwandan army by Ntabakuze in 1992 and 1993.

The Tribunal decided however that neither the document nor its circulation demonstrated a conspiracy to commit genocide. The three men convictedwere alleged to have played a role the distribution of weapons to civilians and the creation of the ‘elimination lists' yet according to the Tribunal it was not proven beyond reasonable doubt that that these efforts were directed at killing Tutsi civilians with the intention to commit genocide.

On 6 April 1994, the a surface-to-air missile shot down a plane carrying the President of Rwanda, the President of Burundi and other dignitaries returning from peace talks in Tanzania. On April 7 1994, Bagosora was alleged to have given the order for the commencement of the genocide. In the hours following the assassination, militia began massacring thousands of Tutsis and members of the Hutu opposition throughout Rwanda.

The Tribunal found Bagosora responsible for the sexual assault and murder of the Tutsi Prime Minister Agathe Uwilingiyimana by Hutu soldiers, and for the murders of opposition cabinet ministers Frédéric Nzamurambaho, Landoald Ndasingwa and Faustin Rucogoza as well as Joseph Kavaruganda, the President of the Constitutional Court. He was also found guilty in connection with the murder at Camp Kigali of ten Belgian UNAMIR peacekeepers that had been sent to protect the President. The massacre prompted the UN Security Council to withdraw a significant number of UNAMIR personnel. The Tribunal found that Bagosora was the highest authority in the Ministry of Defence and exercised effective control over the Rwandan army and gendarmerie from between 6 and 9 April 1994. On the bases of the legal doctrine of command responsibility, the Tribunal found Bagosora responsible for the murder of the Prime Minister, the opposition politicians, the ten Belgian peacekeepers, as well as the extensive military involvement in the killing of civilians in Kigali that all occurred during this period.

Following the large number of deaths within political parties, Bagosora took control of military and political affairs and was instrumental in the creation of the Interim Government on 9 April 1994. The Interim Government composed solely of Hutu was formed with Jean Kambanda – who was later convicted of genocide and sentenced to life imprisonment - appointed as Prime Minister. The Interim Government and Bagosora issued orders and directives to aid and abet in the extermination of Tutsi and moderate Hutu.

In a separate case, the Tribunal also convicted Protais Zigiranyirazo, also a member of the Akazu, of genocide and extermination and sentenced him to 20 years imprisonment. The brother-in-law of former president Juvenal Habyarimana, Zigiranyirazo was convicted of aiding and abetting the murder of 1,500 Tutsis on 8 April 1994 in northern Rwanda and several others in the capital Kigali. He was also accused of involvement in the creation of the ‘extermination lists'.

The genocide ended when the RPF gained control of Rwanda and forced the Rwandan army and over 2 million Hutu civilians over the border into neighbouring Burundi, Tanzania and the Democratic Republic of Congo. A new government was formed in July 1994 with Pasteur Bizimungu, a Hutu, as president and RPF commander Paul Kagame as vice-president, who was later elected President in April 2000 and remains in office.

The ICTR, based in Arusha, Tanzania, has so far completed the cases of 37 accused in relation to the events in Rwanda in 1994 and has thus far confined itself to prosecuting those charged with committing genocide. In a letter dated 11 December 2008, Human Rights Watch (HRW) urged ICTR Prosecutor Hassan Jallow to initiate prosecutions against members of the RPF, the current governing party in Rwanda, who committed war crimes and crimes against humanity during the 1994 genocide. "The tribunal has not prosecuted even one of the serious Rwandan Patriotic Front crimes from 1994," said Richard Dicker, Director of HRW's International Justice Program. "This glaring omission means delivering one-sided justice and risks tarnishing the important work that the court has done to date". The ICTR is scheduled to complete first-instance trials by the end of 2009. Without an extension of the Tribunal's mandate, it is unlikely that RPF cases will be brought before the court.

At a UN Headquarters Press Conference on December 12, the ICTR Prosecutor indicated that he had not seen the letter from HRW and declined to comment on it. He told the conference that the ICTR had a special office that had investigated cases involving Rwandan Patriotic Front authorities and that it had referred some cases to Rwandan national courts, which on 24 October 2008 had charged four senior military officers with murder and war crimes.