5. Use of threats to extort evidence
Judge Bruguière used methods of terror and intimidation of witnesses so that they may accept endorsing information he had prepared in advance. He moreover interrogated witnesses who did not speak French without the services of an interpreter as required by the law.
This method of using threats to obtain information shows the intention of Bruguière of making the persons he intended to indict feel guilty in advance. The evidence of Ruzigana is enlightening in this regard. He says that he wanted to have the experience of going abroad. He then got in touch with his former companion in the army, Ruzibiza, who was in Europe.
Ruzibiza contacted Bruguière who indirectly organized his journey from Rwanda through the French secret service who granted him an entry visa to France from the French Embassy in Tanzania.
On his arrival in Paris, he was immediately taken to the office of Bruguière who interrogated him about the person responsible for the assassination attempt.
When he was not giving the answers corresponding to what the judge wanted, the latter would threaten him that he would not be granted political asylum in France.
Here is his account: “It is through my former friend, Abdul Ruzibiza, that I went to France. Following my demobilisation after the war, I was deployed to the Police. But I wanted to lead a different life, to try my luck abroad.
Ruzibiza then advised me to go to Tanzania. He informed some people in France who then contacted the French Embassy in Tanzania, and the latter granted me a visa and helped me to fly to France.
I however was not an asylum seeker, I have never been one...Upon my arrival in Paris, policemen were waiting for me at the airport and they immediately took me to the judge.
Although I do not speak French, there was no interpreter, there was only a secretary. I more or less understood the questions and tried to explain myself.
The judge asked me where I was coming from, how long I had been in the army. He asked me again whether I was a member of the death squad, the notorious Network Commando.
I replied that there had never been such a network in Rwanda. He then interrogated me about the assassination attempt. Since I had no answer to this question, he insisted saying that I was a member of RPF Intelligence Service.
I replied that I was indeed a member of the Intelligence Service but that in my country, one gets information about the service to which one belongs and nothing more. He then asked me about senior officers and wanted me to explain how these officers went about killing people.
It is at this juncture that the interrogation went sour because I told him that no senior officer did that kind of killing; of course I told him that there had been dead people, but that this was during the war. There had been dead people even among our ranks....
As the conversation dragged on, I became angry because when I gave him an answer he did not like, he said that that was not true, that the answer did not correspond to what he had been told. It is then that it dawned on me that I had been tricked...
Fortunately, the friend who had been waiting for me at the airport had followed me to the judge’s office and parked nearby waiting for me. As soon as I came out of the office of the judge, very angry, I did not even want to spend a single night in France; we immediately went to Belgium and from there, I went to Norway.
At the end of my hearing, I signed the statement, but in reality, my statement did not even amount to five lines because when he asked me a question and I could not answer, I said nothing. Yet in the judge’s report, the statement he alleges is mine is quite longer....
In fact, he already had all the answers to those issues....If I have decided to testify today knowing well that these people could kill me, it is because the judge wronged me in terms of my reputation, in relation to my country...”
6. Violation of diplomatic immunity
Among the Rwandese personalities accused by judge Bruguière, there are some who enjoy immunity from criminal jurisdiction under the Vienna Convention of 18th April 1961 relating to diplomatic relations, which came into force on 24th April 1964.
That was the case especially of Rwanda’s Head of State and Rwanda’s Ambassador to India, General Kayumba Nyamwasa. These two personalities enjoy the immunity of their persons and immunity from legal proceedings and cannot be sued as long as they are in office.
This principle is a permanent feature which is regularly recalled by the International Court of Justice, underlining the imperative necessity of respecting the privileges and immunities of diplomats.
In the ruling dated 14th February 2002 in the case of the Democratic Republic of Congo vs Belgium, the Court even specified the nature and scope of these immunities by pointing out that during their term of office, the Heads of State, the Minister of Foreign Affairs and other diplomats in office, shall enjoy immunity against criminal jurisdiction and total immunity abroad.
The same applies when these authorities are on the territory of another State, whether on official or private business. The Court pointed out that these immunities cover all the actions carried out both before the appointment of these authorities and in the course of their duties, whether these are official or private actions.
Finally, the Court considered that there was no exception to this rule in international law. Pursuant to this rule and jurisprudence, Rwanda’s Head of State cannot be legally subjected to any form of arrest or detention. Any attack on his person, his freedom or his dignity is prohibited by international law.
And it should be noted that the immunity from legal proceedings enjoyed by the Heads of State and diplomats concerns both administrative and civil jurisdictions as well as criminal jurisdictions.
Bruguière was aware of this problem because while he was issuing an arrest warrant of the President of Rwanda, Paul Kagame, he specified that he was covered by immunity, but he hurriedly wrote to the UN Secretary General asking him to compel the ICTR Prosecutor to take legal action against him. This is rather a petty political than a legal ploy.
Moreover, ICTR did not take long to denounce the action of judge Bruguière. At a press conference held in Arusha, the spokesperson of the Tribunal, Everard O’Donnell, recalled that “the ICTR Prosecutor does not take any instruction from anybody in the world”.
Article 15 of the ICTR Statute provides that: “the Prosecutor shall act in total independence. He shall not solicit or receive instructions from any government or any other source”.
7. Negation of an internationally established and recognized genocide
From the view of the Convention of 9th December 1948 on the prevention and punishment of the crime of genocide, genocide is an action committed with the intention of destroying wholly or in part a national, racial, ethnic or religious group as such.
The crime of genocide presupposes therefore the existence of the intention to commit a criminal act against the above mentioned four groups. In other words, there is no genocide without the specific intention of committing it.
Yet, Bruguière concludes that it is President Kagame who was behind the attack against Habyarimana’s plane and that, consequently, it is Kagame who lit the fuse of the genocide of the Tutsi.
To assert that it is the attack against the aeroplane which led to the genocide amounts to saying that the extermination of the Tutsi was a spontaneous act, not premeditated, devoid of genocide intentions.
Such an argument has important legal consequences since it clears the act of killing the Tutsi of its genocide nature, consigning it to the act of manslaughter or an unintended criminal act or, perhaps, to the act of crime against humanity.
The logical consequence is that the perpetrators of the genocide are absolved from this crime in favour of a less serious offence such as the crime against humanity or simple murder.
The defence lawyers at ICTR have always attempted this ploy, desperately trying to negate the existence of the genocide in Rwanda in favour of the offence of the crime against humanity, in order to reduce the scope of the crime of genocide and applicable punishment.
However, in terms of international jurisprudence, there is a very important historical judgement, that of Jean-Paul Akayesu, which has since become a constant reference point for the crimes that were committed in Rwanda in 1994: ”the genocide was organised and planned not only by the members of FAR, but also by political forces grouped around Hutu Power, and it was implemented by the majority of the civilians, including particularly armed militia and even ordinary citizens; and Tutsi victims were in their big majority non combatants, including thousands of women and children, even foetuses. The fact that this genocide was committed when FAR were fighting RPF cannot in any case be used as extenuating circumstances to its perpetration ”.
And then ICTR clarifies: “It is then clear that the massacres which were committed in Rwanda in 1994 had a specific objective: namely the extermination of the Tutsi, who were targeted especially because they belonged to the Tutsi group, and not because they were RPF fighters. In any case, Tutsi children and pregnant women would naturally not have been among the fighters. The Chamber concludes therefore from all the foregoing that genocide was, indeed, committed in Rwanda in 1994 against the Tutsi as a group. In the opinion of the Chamber, this genocide appears to have been meticulously organised ”.
The special Rapporteur of the United Nations Commission for Human Rights, René Degni-Segui had come to the same conclusion in his report of 28th June 1994 where he notes: “The clear and unambiguous intention is well contained in the continuous calls to kill by the media (in particular RTLM) and in the pamphlets. (...) A corroborating body of evidence: preparation of massacres (distribution of firearms and training of militia), number of killed Tutsi, and outcome of the application of a policy of extermination of the Tutsi. (...) The qualification of genocide must already be accepted with regard to the Tutsi. It is different with regard to the killing of the Hutu”.
Faced with the multiplicity of attempts by the defence lawyers at ICTR to negate the existence of the genocide, the judges of this Tribunal finally brought to a close the debate on 16th December 2006 in the case of Karemera, by stating that the genocide of the Tutsi was public knowledge which should no longer be debated.