Rwanda may have, in 1994, requested for the setting up of an international court to prosecute key masterminds of the Genocide against the Tutsi, but what is probably unknown to many is that government never consented to the resolution that would establish the court.

On November 8, 1994 as the UN Security Council sat to adopt Resolution 955, which set up the International Criminal Tribunal for Rwanda (ICTR), Rwanda did not vote, citing a number of reasons.

The most outstanding reason advanced by the government, and for which it has since been vindicated, is the period of time within which the crimes committed would be prosecuted by the tribunal.

Resolution 955 only limited the time to be covered by the tribunal from January 1 to December 31, 1994, while Rwanda pushed for this period to be expanded to the early 1990s.

A report on the activities of the court which was put together by the Senatorial standing committee on foreign affairs and tabled before the Senate last month says that the issue of limiting the crimes to be prosecuted by the court to 1994, posed challenges in prosecutions.

"Because of this limitation, prosecutors have been constrained to prove to the judges how the Genocide against the Tutsi was prepared, and even the most notorious of the suspects have been absolved of the crime because it is hard to prove provide evidence for actions committed within the period they were limited to,” said Senator Jean Damascene Bizimana, who chairs the committee.

Among the key cases where prosecution was in proving Genocide preparation were  the Military 1 Case and the Media Trial, where events that preceded 1994 could not be referred to, yet they could have played a major role in pinpointing individual roles in the preparation of the Genocide.

"In this case, despite documented evidence of Theoneste Bagosora being in charge of a committee that would effectively take charge of gathering all tools that would implement the Genocide, he could not be held liable,” reads part of the report.

Bagosora, who held a position equivalent to the current permanent secretary in the Ministry of Defence, was a powerbroker, and key member of the Akazu, a network of influential people which orchestrated the Genocide.

According to the senate report, Bagosora was in 1991 appointed by then President Juvenal Habyarimana to head a team mandated to develop a military, political and media roadmap to be used to defeat the "enemy.”

"The Bagosora team concluded that the number one enemy of the state was the Tutsi, and any foreigner who married a Tutsi woman and called for their elimination,” reads the report, adding that henceforth, Bagosora issued instructions to the military and Gendermerie chiefs of staff, to start drawing lists of the Tutsi to be killed.

This evidence, plus other instances prior to 1994 where he severally publicly called for an "apocalypse”against the Tutsi, would not be used because of the limitations of the court mandate.

Bizimana said that the period covered was narrowed down at the insistence of France, a permanent member of the UN Security Council.

Far from beneficiaries 

The other reason presented by Rwanda to rescind support for Resolution 955 was the rejection for its request to establish the tribunal within the proximity of the beneficiaries, preferably on Rwandan territory.

"This is a justified reason because justice should be seen to be done. Probably the people who are upset with some of the controversial ICTR rulings should not have been if they had followed the cases,” Dr. Tim Gallimore, a Genocide scholar, told The New Times in an exclusive interview.

Gallimore worked with the tribunal from 2004 up to 2008, with his last post being spokesperson for the Prosecution.

Rwanda had also requested to have some nationals on the bench and among lead prosecutors of cases, which was never granted.

Instead, prosecution used investigators who were often times unfamiliar with what happened and in some cases incompetent, while extreme cases involved those who were themselves implicated in the Genocide.

A report by Ibuka in 2001 implicated over 40 ICTR staff members in the Genocide and some went on to be apprehended and put on trial by the same tribunal.

Defective indictments 

Many observers and judges in their different rulings continuously pointed at the poorly prepared indictments which led to the acquittal of some of the key suspects.

"My personal opinion is that prosecution could have done a better job. In some cases the omissions were glaring where you found a stark contrast between the indictments and arguments made before court,” said Gallimore.

Gallimore also says that grouping some of the suspects in joint trials was another reason that could have led to many acquittals, especially where prosecution struggled to place the accused in one place to prove their joint enterprise in committing the crimes.

"Most of these would have easily been prosecuted if they were tried individually, after all criminal liability is individual,” said Senator Bizimana, an expert in international criminal law.

Meanwhile, reports that could not be independently verified by The New Times blamed the overwhelming defects in the ICTR indictments on the use of interns in the office of the prosecutor to prepare the indictments.

Judge Meron

Speaking about the adjudication of cases by the UN tribunal however, the most controversial name remains American judge, Theodor Meron, who has been involved in almost all recent acquittals at the tribunal.

Meron, 82, who is the president of the Appeals Chamber, has presided over acquittals of cabinet ministers in the genocidal government, as well as the top brass of the then government forces.

Several protests have been staged in different forms by survivors and members of the civil society contesting the conduct of Judge Meron, who is also now heading the Residual Mechanism for International Criminal Tribunals, which will take over from the ICTR once it closes shop.

Much as in some rulings most of the anomalies are attributed to loopholes in indictments, the rate at which these acquittals have been taking place since Meron took charge remains cause for concern.

"What is even more worrying is the fact that in some of the cases, the appeals chamber under Meron went on to substitute facts presented in verdicts by the trial chamber to justify their own verdict, which is contrary to rules of procedure,” said a source from the tribunal who requested anonymity.

Meron’s behaviour further came into question following complaints by fellow judges accusing him of coercing them to toe his line of reasoning in passing judgments. 

"Meron’s conduct is worth looking into because allegations have been made of the judge trying to sabotage the command responsibility doctrine, where, for example, top leaders are absolved of crimes committed by subordinates like it happened in the military trials,” said Gallimore.

Did the tribunal serve its purpose? 

"It served its purpose for the international community which looked on as the Genocide took place and they wanted to show that they did something,” said Gallimore.

One thing all parties agree on as an achievement of the tribunal, is the precedent it set in rendering a ruling that a genocide was committed against the Tutsi in Rwanda.

Prosecutor General Richard Muhumuza said the tribunal’s remoteness from the Rwandan population may have played a major part in playing down any achievement it may have recorded.

"The acquittal of key persons suspected of playing major roles in the massacre of Tutsi in 1994 has also been a huge disappointment,” said Muhumuza.

The court is expected to completely phase out by next year, and its activities taken over by the Mechanism for International Criminal Tribunals.

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WHAT SENATORS SAY ABOUT THE COURT

Prof. Chrysologue Karangwa There should be a thorough probe to ascertain whether France did not push for limiting the competence of the tribunal to crimes committed in 1994 perhaps because they were covering up for the role their government could have played in the build up to the Genocide.

Fatou HarerimanaI look at it as a mockery when they say that among the reasons behind the creation of the ICTR included promoting unity and reconciliation of Rwandans. What kind of unity does this court promote when they are setting free masterminds of the Genocide?

Tito Rutaremara The errors made by prosecution should be deeply looked into. Were these just errors of omission or were they intentional? Same applies to the possible omissions by judges. Even as the tribunal closes, it is a very important jurisprudence in international criminal law and if there are flaws, it means the decisions could affect future judicial rulings anywhere in the world.