The decision to refuse an application for early release from Théoneste Bagosora sees a welcome reversal of policy by the International Residual Mechanism for Criminal Tribunals (IRMICT).  The President, Judge Carmel Agius, has concluded that Bagosora, who was sentenced to life in prison and who had his sentence reduced to 35 years in 2011, could not be granted early release, despite having served a third of his sentence, which qualified him to apply. 

Bagosora is considered the principal architect of the 1994 genocide against the Tutsi and on April 7, he had assumed de facto control of Rwanda’s military and political affairs as the genocide of the Tutsi began. To this day, he refuses to recognise his crimes. 

The decision to keep Bagosora behind bars marks the end of a shameful period in international law during which convicted perpetrators of this great crime were granted unconditional and early release -- despite their lack of remorse.  Until the appointment of Judge Agius in January 2019, the Mechanism as IRMICT became known, responsible for the supervision of international prisoners convicted in UN courts, was headed by a US Judge Theodor Meron. It was Judge Meron who changed the internal rules of procedures at the Mechanism to make early release of Rwandan prisoners more likely. 

In his three terms as President, Judge Meron oversaw the release of ten génocidaires who were freed unconditionally before the end of their sentences, with no procedure in place to ensure they would not reengage in their criminal activities.  These prisoners, like Bagosora, were unrepentant and denied entirely the factual basis of their criminal conspiracy. 

Meron will be remembered most for the unconditional release in September 2016 of Ferdinand Nahimana the chief propagandist of Hutu Power who walked out of prison in Mali after twenty years and six months in international custody. His release came just thirteen years since his conviction to a life term imposed in a courtroom at the International Criminal Tribunal for Rwanda (ICTR), where he was found guilty of genocide, direct and public incitement to commit genocide, conspiracy to commit genocide, crimes against humanity (persecution) and crimes against humanity (extermination).  

For the survivors of the genocide against the Tutsi, the unconditional release of Nahimana by Judge Meron was devastating, betraying a lack of understanding of the crime of genocide. In prison Nahimana claimed his innocence and wrote books to promote the vile and racist Hutu Power propaganda. To release Nahimana at a time when genocide denial was more entrenched than ever was irresponsible. The decision showed contempt for the survivors and their continued suffering.

In coming to his decision to release Nahimana, Judge Meron acted alone. He did not consult genocide survivors and no say was given to the government of Rwanda. His decision was secret and unaccountable. No appeal was possible. It was a scandalous situation. Meron had earlier played a role in reducing Nahimana’s life sentence to thirty years giving a dissenting view in the appeal judgement. Meron had wanted a new trial for Nahimana believing that hate speech was not a basis for criminal conviction. This caused serious concern. The connection between hate speech and atrocity in Rwanda was evident. Racist ideology and propaganda are integral to the crime of genocide and mass media in Rwanda was a causal factor in mass atrocities. A failure to criminalise hate speed served only to encourage fanatics.   

In the case of Bagosora and the decision by Judge Agius to keep him in prison, the internal procedures seem to have changed and a lack of remorse and regret are at last considered. In all his submissions for release Bagosora minimized his responsibility for the crimes he committed in 1994. A recognition of a lack of remorse is crucial and there needs to be a wider understanding that the convicted génocidaires continue to promote their absurd racist ideology and their notions of innocence. 

The writer is the author of Intent to Deceive. Denying the Genocide of the Tutsi. (London: Verso, 1994)