The UN-financed tribunal established to try cases of masterminds of the 1994 Genocide against the Tutsi may leave nothing for Rwanda to celebrate about, but rather failures that put international justice to doubt, experts say.
The International Criminal Tribunal for Rwanda (ICTR) was established in 1994 to prosecute the perpetrators of the genocide with a task to hunt down genocide suspects wherever they are.
The tribunal is due to windup by December after spending about $2 billion on 75 cases in nearly two decades.
But Edouard Munyamariza the president of Rwanda Civil Society Platform, Dr Diogene Bideri a legal expert at the National Commission against Genocide (CNLG) and Senator Jean Damascene Bizimana, an expert in public international law, poured water on the court’s legacy.
They accused the court of delaying trials, contradictions in its decisions and freeing men who planned and supervised the genocide.
“Trials were delayed at the tribunal mainly due to a mix up of the Anglo-Saxon Common Law and the Roman Civil Law. There was not clear formula of how to handle trials using this duel system,” said Bizimana.
He added: “The tribunal was more like a secondary court after the International Criminal Tribunal for the former Yugoslavia (ICTY)”, and accused the former chief prosecutor, Carla Del Ponte, of administrative failures.
“In the early days of the tribunal, it wasn’t fully independent; it worked under the chief prosecutor of the ICTY who was Del Ponte. Her deputy, Bernard Muna, was the one charged with ICTR prosecutions, any decision he could take had to be approved by his boss, resulting in poor compilation of dossiers.”
He pointed out that, the controversy resulted in weak and poor investigations in the ‘Cyangugu trial’ of the former transport minister, André Ntagerura, ex-commander of the Karambo military barracks in Cyangugu, Samuel Imanishimwe and former Cyangugu prefect, Emmanuel Bagambiki.
In 2003, Rwanda lodged a complaint exposing the illegalities within the court’s prosecution section and subsequently, Del Ponte was dropped and replaced by Bubacar Jallow.
“This is when we started seeing a significant change in the prosecution and trials started moving a little faster,” Bizimana said.
He however expressed frustration over the tribunal failing to perform to its expectations saying that the number of people tried in the past 19 years was way smaller than the resources that were at the court’s disposal.
Although the court may have delivered fair justice in some cases both at the trial and appeals level, Bizimana says that there have been deliberate intentions by the Appeals Chamber to release those who occupied top positions in the genocidal regime.
“Generally, there are cases that were handled well [like] the case of Silvestre Gacumbitsi who had been sentenced to 35 years but the appeal court sentenced him to life. The same applies to Athanase Seromba and Laurent Semanza whose sentences were increased to life by the Appeals Chamber.
“The biggest problem lies in the cases of former minister and top military commanders who were let off the hook,” he said.
In 2011, the Trial Chamber had convicted two former ministers, Justin Mugenzi and Prosper Mugiraneza for their role in the Genocide and sentenced them two 30 years jail time based on the fact that they attended a council of ministers meeting that decided to sack the Tutsi prefect of Butare, Jean-Baptiste Habyarimana, who was considered the last obstacle to the killings in the area.
The judges had ruled that their presence at that meeting and at another meeting two days later where interim president Theodore Sindikubwabo urged the population to kill Tutsis, meant that they were guilty of conspiracy to commit Genocide and incitement to commit Genocide.
However, the appeal judges set the two men free on grounds that they did not know that Theodore Sindikubwabo was going to make such a speech, and that the dismissal of the prefect could have been decided “for political and administrative reasons” and not necessarily in order to speed up the massacres.
“The Court should have based on the jurisprudence in the trial of then Prime Minister Jean Kambanda who pleaded guilty on 11 counts including chairing several ministerial meetings planning the Genocide and also instructed them to sensitize the public to kill Tutsis in all provinces. There is no way you can convict Kambanda and set these two men free. This is a clear indication of the Appeals Chamber’s intentional release of the key perpetrators,” said Bizimana.
Another contradiction he brought to light was the trial of Col Theoneste Bagosora saying that both the trial the appeals chambers concurred on the command responsibility of Bagosora and being responsible for the death of the Belgian peacekeepers and Prime Minister Agatha Uwiringiyimana.
“…but in the final verdict the appeals chamber contradicted itself saying Bagosora did not give the instructions to kill and had no power over the military.” he said.
CNLG’s legal expert, Bideri pointed out that the rot within ICTR dates way back the time of its establishment and that this has resulted in some judges taking advantage of the weak system to favour masterminds of the Genocide.
“Normally every court should accommodate the civil parties” participation and provision for damages or compensation, ICTR doesn’t have that. Rwanda sought for this structure before the establishment of the court but the Security Council ignored it On several occasions, Rwanda pushed the court to change its operations and serve justice rightfully. There a lot that didn’t go well at the court mainly due the way judgments were delivered,” he said.