On 4 February 2013, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) delivered the judgement in the case of Justin Mugenzi and Prosper Mugiraneza verses the Prosecutor.
The Trial Chamber II of the Tribunal convicted Mugenzi and Mugiraneza for conspiracy to commit genocide and sentenced each of them to a single sentence of 30 years of imprisonment.
Mugenzi and Mugiraneza appealed against their respective convictions and sentences. The Appeals Chamber reversed Mugenzi’s and Mugiraneza’s convictions for conspiracy to commit genocide and direct and public incitement to commit genocide due to errors in the Trial Chamber’s assessment of circumstantial evidence. Accordingly, the Appeals Chamber entered a verdict of acquittal as to Mugenzi and Mugiraneza.
Systematically, the appeals chamber acquitted the mastermind of the genocide against Tutsi.
Even if all evidence demonstrate the existence of a conspiracy to commit genocide among the members of the 1994 Government and ex-FAR senior Officers, the ICTR Appeals Chamber concluded that “Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond reasonable doubt that the (…) accused conspired amongst themselves, or with others to commit genocide before it unfolded on 7 April 1994”.
What is the motivation behind the formula often used by the appeals chamber “on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt”?
What is the hidden agenda and who is behind the agenda? The elements underpinning the planning and conspiracy, there are facts, such as meetings which characterise the planning of the Genocide, their affiliation with certain clandestine organisations, general warnings, of which some were circulated publicly.
In 1992 the high-ranking officers define Tutsi as the enemy, “a step towards a criminal conspiracy”. The Appeals Chamber concluded that “the over-emphasis on the Tutsi ethnicity in the document is troubling, but cannot conclude that the document or its circulation to soldiers in the Rwandan army in themselves evidenced a conspiracy to commit genocide. It can be viewed, however, as background to give context to the subsequent actions of Bagosora, Nsengiyumva and Ntabakuze”.
Bagosora was intent, by the end of 1992, on preparing the “apocalypse”; the Chamber, however, did not find the evidence supporting this allegation credible, and it therefore has no probative value in establishing Bagosora’s role in a conspiracy.
Kabiligi participated in a meeting in February 1994 in Ruhengeri with local military commanders to inform them of a plan to commit genocide. The Chamber however did not find the uncorroborated evidence supporting these allegations credible. Similarly, the Chamber was not convinced that Bagosora referred to the eliminaton of the Tutsis at the Senegalese dinner held on 4 April.
Lists of Tutsi were prepared and subsequently used during the killings evidences prior planning. In the case of Bagosora and Nsengiyumva, the appeals Chamber found that Nsengiyumva given his role as head of the military intelligence bureau (G-2) on the army staff would have been involved in the preparation of lists and that Bagosora in light of his position was likely aware of them. It also concluded that Ntabakuze made use of lists to arrest people in October 1990.
The Chamber was not satisfied, however, that these lists were prepared or maintained with the intent to kill Tutsi civilians. Civilians were armed and trained and later participated in the killings. The Chamber has found that Bagosora, Nsengiyumva and Kabiligi participated in varying degrees in the arming and training of civilians. It was not proven that Ntabakuze was involved in this effort.
However, when viewed in the context of the immediate aftermath of the RPF’s violation of the cease fire agreement, it does not necessarily show an intention to use the forces to commit genocide.
Some accused were members of clandestine organisations such as the Zero Network and AMASASU’s furtherance of a plan to commit genocide.
In the case of Bagosora and Nsengiyumva, with respect to the parallels between Bagosora and Nsengiyumva’s writings and the sentiments expressed in the AMASASU letters, the Chamber concluded that this evidence created an inference that Bagosora and Nsengiyumva were behind the AMASASU documents and possibly part of a group of Rwandan army officers who shared these views.
However, the available information concerning the existence of Zero Network and the AMASASU as well as the accused participation in them was limited and to a large extent second-hand. The Chamber was therefore unable to conclude beyond reasonable doubt that the Accused were members of them.
The appeals chamber noted the considerable evidence pointing to their existence and role in killings before April 1994. Several sources also indicated to varying degrees that Bagosora, Nsengiyumva and Ntabakuze were members. The chamber could not find beyond reasonable doubt that they were members of death squads.
The prosecution clearly identified the clandestine organisations, their membership, proven connection between their activities and the accused, but systematically, the chamber was not satisfied that the accused played a significant role in the creation of those organisations.
We can already imagine that the appeals chamber will decide in the same direction in the pending case of Pauline Nyiramasuhuko.
The decisions of the Appeals Chamber on conspiracy to commit genocide are a denial of justice as it is the last instance of the ICTR.
More importantly, the appeals chamber used the insignificant formula of not being satisfied beyond reasonable doubt.
By a meaningless formula, the appeals chamber acquitted the worst “genocidaires” the world has ever known.
The writer is a Researcher and Lawyer with the National Commission for the Fight against Genocide