Controversial ICTR judge acquits top Genocidaires

Former head of the Rwandan gendarmerie Gen. Augustin Ndindiliyimana walked away from the latest judgement of the appeal bench in Arusha yesterday, Tuesday, having been acquitted of all charges against him. The 65-minute ruling also decided on the acquittal and immediate release of former army major François-Xavier Nzuwonemeye and a downgrading of the sentence of Captain Innocent Sagahutu from 20 to 15 years. Prosecutor Hassan Jallow and trial judges looked shocked and, in some cases, bewildered, by the result. A notable absentee from the judgement who had been scheduled to appear was former head of the Rwandan armed forces (FAR) General Augustin Bizimungu. Originally, the four accused had been tried together as part of the case termed ‘military 2.’ On Friday, February 7, the Appeal bench decided at the final moment that it was ‘severing’ the Bizimungu case from that of the others while it considered ‘the absence of legal findings in the trial judgement in relation to Bizimungu’s conviction for genocide’, for which he had received a 30 year sentence at the ICTR on May 17, 2011. The packed public gallery listened attentively as the head of the appeal bench, 83-year-old Presiding Judge Theodor Meron read out the controversial decision. Ndindiliyimana had been sentenced at his original trial for crimes of genocide, extermination and murder but given a sentence of ‘time already served in detention’ that amounted to 11 years and released. He had been appointed as head of the gendarmerie in September 1992, holding the position until July 1994. He looked calm and impassive as step by step the appeal bench found that the original trial judges had ‘erred’ in their findings. In fact, the word ‘erred’ was to be used time and again to describe the previous trial judgement. According to the appeal judges, Ndindiliyimana had ceded control of most of the gendarmerie to the Rwandan army (FAR) on April 7, 1994 and extremist and rogue elements had ‘infiltrated’ the police thus downplaying his authority and ability to control their actions. At his trial it was shown that gendarmes had been guarding Ndindiliyimana’s residence at the request of his wife. Some of these had later taken part in the massacre of Tutsi at Kansi Parish for which Ndindiliyimana was originally held responsible by not preventing or punishing them as their superior. Meron’s appeal bench decided that this was an error and Ndindiliyimana lacked ‘the ability to prevent or punish them and no reasonable trial finding could find the gendarmes had participated’ at the parish. A similar decision was taken to account for his responsibility for killings by Ndindiliyimana’s gendarmes at St André College in Kigali. François-Xavier Nzuwonemeye surprisingly did not attend the court with no reason given for his absence and was represented by his counsel. He had been Commander of the Reconnaissance Battalion within the Rwandan army from 1993. At his trial in 2011 he was convicted of genocide and murder as a crime against humanity and sentenced to 20 years. Meron, reading the appeal bench decision with just an occasional pause for a sip of water, again decided there had been numerous ‘errors’ by the original trial judges. Most notably this had been in the actions of troops under Nzuwonemeye’s control who had taken part in the murder of then prime minister Agathe Uwilingyimana. However, the appeal court ruled that Nzuwonemeye could not have known that some of his men placed 100 metres away to stop Uwilingiyimana escaping to give a radio broadcast would take part on their own initiative in the brutal killing. Equally, Sagahutu, who was the second in command of the reconnaissance battalion, was also cleared of any responsibility in this killing. Both army officers had originally been convicted for the murder of members of the Belgian Unamir force, also on April 7, at Camp Kigali. Meron announced that the appeal bench was clearing Nzuwonemeye of being responsible as a superior officer for the death of the peacekeepers. It did though find with the original trial decision that Sagahutu had aided and abetted the killing, allowing a mobile grenade launcher to be taken from his office for this purpose, though it was unclear if it was used to murder the last of the Belgians who were putting up some resistance. Ndindiliyimana has been living for the past two years in a safe house in Arusha with others the ICTR has either acquitted or released. His attempt, as with many of the other former accused, to get a residency permit for Belgium has been refused. The defence now hopes that this acquittal will enable him to travel to Europe to rejoin his family. Sagahutu, who sported a long greying beard for the judgement, was taken back to the UN detention facilities. However, as he has been in custody since being transferred back from Denmark where he was arrested in February 2000, he has only a year left of his reduced punishment to serve, and it is likely he may be set free far sooner given the ICTR decision to release convicted prisoners after serving three quarters of sentences and he has already applied for early release. Given the nature of Meron’s appeal judgements in this case and other military ones at the ICTR and ICTY in the Hague, there is every prospect that General Bizimungu will also find his sentence substantially reduced or even dismissed when he appears in the coming months to hear his own verdict. Genocide survivor and director at the National Commission for the fight against genocide (CNLG), Dr Diogene Bideri, reacted to yesterday’s verdicts with shock and a sense that once again the ICTR has let down victims of the 1994 horror. Bideri said: “I cannot really find a word to express what I see happening at the ICTR and what I see as a systematic attempt by Judge Meron, working to a political agenda, that has downplayed what actually happened here and which we Rwandans all know the truth about. “There is great indignation at the trivialization such a judgement gives, and it is something we cannot accept even though we are just meant to sit back and keep silent.” Bideri pointed to a number of other highly controversial decisions taken by the appeal bench under Meron in Arusha and at the ICTY in the Hague that have led to high profile military and political figures being acquitted after receiving hefty original sentences with the trial judges being held to be ‘in error’ in their understanding or application of the law.