The Kagame-Power Lobby’s dishonest attack on BBC documentary on Rwanda: A rejoinder

The process of investigating and prosecuting serious international crimes is complex, imperfect and still a work in progress. However, it is necessary to recall that active international criminal prosecutions have been going on for only twenty years, with the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY/ICTR) by the UN Security Council in 1993 and 1994 respectively. Therefore, there is room for improvements, and legitimate criticisms of the ICTR are welcome.

Additionally, the ICTR has limited jurisdiction and the court is not intended to address all of Rwanda’s social, economic, military and political problems. The ICTR’s mandate is to investigate and prosecute those responsible for serious crimes committed in Rwanda in 1994. It is attractive for those not focused on the mandate of the ICTR to criticize its work from the outside, as seen in the work of Emeritus Professor Edward S. Herman and independent journalist David Peterson. A better understanding of the ICTR, its mandate and its contribution to international criminal justice provides a sound legal premise for assessing the works of the ad hoc Tribunal.

A common mistake made by critics of the ICTR is to conflate the mandate of the ICTR to include Rwanda’s political system, its democratic deficit, alleged abuses of human rights and the prosecution of perpetrators for all manner of crimes. This is one of the many errors Herman and Peterson make in their article. Further, the authors selectively rely on unverified statements to unfairly criticise the ICTR for failing to prosecute officials from the Rwandan Patriotic Front (RPF) officials. For example, the authors allege that ‘…the ICTR has strictly observed the principle of “victor’s justice” throughout its 20 year existence and has indicted, tried, and convicted Hutus alone with only one exception.” [1]

While the statement is partially true, it fails to mention that at trial, each of the accused was afforded a fair hearing and provided with the counsel of their choosing, paid for by the Tribunal. All accused were found with cases to answer and many were convicted. The ICTR records show that 93 accused were indicted, 61 convicted and 14 acquitted. Additionally, two indictments were withdrawn and three accused died before completion of their respective trials; the remainder were transferred to national jurisdictions. The 14 accused who were acquitted included several senior cabinet ministers, senior military officers and government officials. [2] Claims of ‘victor’s justice’, as alluded to by the two authors in the face of acquittals of army generals and senior cabinet ministers of the ‘genocidal’ regime, are not persuasive. Herman and Peterson refuse to recognize that President Habayarimana’s senior military officers and cabinet ministers were acquitted not because they were Hutus, but because the Trial or Appeal Chambers were not satisfied that the Office of the Prosecutor (OTP) proved its cases beyond a reasonable doubt. Where the Chambers were satisfied, convictions were entered. Further, ethnicity was never a criteria used by the OTP to indict accused persons, rather it was the gravity of the offence and whether any alleged facts satisfied elements of crimes of genocide, crimes against humanity or war crimes, as stipulated in the ICTR Statute. The OTP was not required to balance the numbers of Hutus and Tutsis—a twisted argument for those who advance the theory of ‘equality of arms’—and to prosecute the same numbers of Hutus and Tutsis. However, even Herman and Peterson do not suggest in their article that any of the Hutus prosecuted before the ICTR were falsely accused or indicted because of their ethnicity and not because of crimes they committed. The authors’ line of argument is just one example of selective misrepresentation of the work of the OTP, with the objective to discredit and undermine the integrity of the ICTR.

The article raises many issues that relate to Rwanda’s internal politics. I leave those issues to experts in the field. I limit my comments to three legal issues addressed by the authors who, through misrepresentations, reached conclusions that are untenable. These three issues relate to alleged RPF crimes committed in Rwanda and in the Democratic Republic of the Congo (DRC), whose investigations the authors claim were declined, refused or neglected by the OTP. The second point refers to the alleged failure of the OTP to investigate and prosecute persons who may have shot Habayarimana’s jet. The third point relates to allegations that no accused person has ever been convicted by the ICTR Trial and Appeals Chambers for the crime of conspiracy to commit genocide.

THE ICTR LEGAL FRAMEWORK

The ICTR has jurisdiction only over serious crimes committed in the territory of Rwanda, and those committed by Rwandan citizens in the territory of neighbouring states between 1 January and 31 December 1994. [3] This means that acts or omissions of the accused establishing his responsibility under any of the modes of liability referred to in Article 6(1) (on individual criminal responsibility) and Article 6(3) (on superior responsibility) of the Statute must have occurred in 1994. The ICTR Appeals Chamber clarified the extent and scope of the temporal jurisdiction of the Court by stating that ‘even where [criminal"> conduct commenced before 1994 and continued during that year, a conviction may be based only on part of such conduct having occurred in 1994.’ [4]

It follows from ICTR jurisprudence that crimes that may have been committed by the RPF or the Rwandan Armed Forces (FAR) commencing on 1 October 1990—when the armed conflict started—to 31 December 1993—a day before the commencement of the ICTR Statute—fall outside the temporal jurisdiction of the ICTR, and that the OTP has no mandate to investigate or prosecute such acts or omissions. Similarly, any serious crimes that may have been committed by the RPF or FAR from 1 January 1995 do not fall within the mandate of the ICTR. To put things in context, the alleged killings at Kibeho Camp in early 1995, for example, where more than 2,000 civilians were killed, and the subsequent killings at Goma refugee camps in DRC (then Zaire) and other camps in the DRC do not fall within the mandate of the ICTR. Repeated reference to these crimes by Herman and Peterson in their article cannot bring these crimes within the jurisdiction of the ICTR.

It is conceded that acts and omissions that fall in this category create serious impunity gaps. However, in the absence of the UN Security Council Resolution adopted under Chapter VII of the UN Charter amending the ICTR Statute, the OTP remains unable to take any legal action against perpetrators. It is for this legal reason that the OTP did not indict any perpetrators for crimes committed within the territory of Rwanda and the DRC found to fall outside the ICTR temporal jurisdiction.

Additionally, the International Criminal Court (ICC) Statute came into affect on 1 July 2002. The ICC jurisdiction therefore excludes any alleged crimes committed by the RPF or FAR in the territory of the DRC between 1 January 1995 and 30 June 2002, notwithstanding the fact that the government of the DRC referred this situation to the ICC. Thus, both the ICTR and the ICC have no jurisdiction over crimes committed during the periods outlined above. For Herman and Peterson to criticise the OTP in particular, and the ICTR in general, for failure to investigate and prosecute acts and omissions that fall outside its mandate is at best based on ignorance of the applicable law, or at worst is a mischievous, disingenuous and irresponsible attack on the integrity of the OTP and the ICTR.

FAILURE TO PROSECUTE THOSE WHO SHOT DOWN HABAYARIMANA’S JET

The first point to dispose of is that there is no conclusive evidence as to whom or which party to Rwanda’s internal armed conflict shot down Habayarimana’s jet. Second, based on the circumstances under which the jet was shot down, it was considered not sufficiently relevant for the OTP to spend valuable time and resources to investigate acts that did not show prima facie evidence that any crime was committed by any party to the armed conflict. I will return to this point shortly.

According to the laws of war, particularly Common Article 3 of the Geneva Conventions of 1949 and its Additional Protocol II of 1977, sometimes referred to by the broader name of International Humanitarian Law (IHL), what is relevant in determining whether a war crime was committed when Habyarimana’s jet was shot down is proving that the president’s jet was not a legitimate military target. If it was legitimate, then no crimes were committed. If, however, Habyarimana’s jet was a civilian aircraft not carrying military personnel or supplies and not in any way being used to encourage any form of military support, one may draw the conclusion that the jet was not a legitimate military object, and therefore the shooting down of the plane may constitute a war crime.

The context of the shooting of the jet is, to this extent, a relevant factor. Herman and Peterson go to great length in discussing the nearly 340-page report by Judges Nathalie Poux and Marc Trevidic. However, for the purpose of effective criminal prosecution, the report is ‘useless’ and irrelevant, for it fails to conclusively identify a single perpetrator or motive for shooting down the jet. On the other hand, the OTP had no reason to investigate the shooting down of the jet because no crimes within the ICTR Statute were committed.

It is generally agreed that prior to the shooting of the plane, there was a ceasefire in place. However, one of the consequences of a breach of a ceasefire agreement is a resumption of armed conflict. Thus, the shooting of the plane resulted in a resumption of war. The passengers in that plane included:
Gen Juvenile Habyarimana, President of Rwanda and Commander-in-Chief of the Rwanda Armed Forces, an army at war with RPF; Gen Deogratias Nsabimana, Chief of Staff of Rwanda Defence Forces; Col. Eli Sagatwa, Member of the Special Secretariat of the President and Chief of Military Cabinet of the President;
Major Thaddee Bagaragaza, responsible for "maison militaire" of the Rwanda President, amongst others. In any military setting, the presence of top military planners and officers at one place would constitute a legitimate military target within the meaning of the law of war.

Assuming the RPF shot down the plane—and there is no evidence that the RPF did—would the presence of key military advisers to the president on board the plane permit one to characterize Habyarimana’s plane as ‘a legitimate military target’? If so, no war crime was committed. Most legal experts would probably agree that no crime was committed. Significantly, no legal expert, thus far, has advanced the argument that shooting Habyarimana’s plane was a crime of genocide or a crime against humanity. Thus, for those who seek to prosecute perpetrators who shot down the plane or gave orders to do so, the first step is to establish that the plane was not a legitimate military target. So far there is no evidence to that effect, and the OTP made the correct decision to not proceed with investigations into the matter. Had FAR, under similar circumstances, shot Gen Paul Kagame and his senior military advisors, the OTP would have likely come to the same conclusion that no war crimes were committed.

CONSPIRACY TO COMMIT GENOCIDE

Interestingly, Herman and Peterson argue that:

‘…even the US- and UK-vetted ICTR uniformly rejects the charge that Hutu political and military figures engaged in a “conspiracy to commit genocide” against the country’s minority Tutsi population prior to the April 6, 1994 shoot-down of the Habayarimana jet. But this has never prevented Linda Melvern and the open letter’s co-signers Romeo Dallaire, Gregory Stanton, Gerald Caplan, Frank Chalk, George Monbiot, Andrew Wallis, et al., from repeatedly asserting that such a conspiracy was fairly adjudicated and determined to be real by the ICTR’s trial and appeals chambers, and this repetition of the “conspiracy to commit genocide” fraud feeds into the lie-stream here.’ [5]

Herman and Peterson are in error to suggest that cases of conspiracy to commit genocide were never fairly adjudicated by the ICTR’s Trial and Appeals Chambers. ICTR jurisprudence proves otherwise. There are convictions by Trial Chambers for conspiracy to commit genocide. The Appeals Chamber reversed some of the Trial Chamber judgements, one is pending, and two were confirmed. In the conduct of criminal prosecutions, it does not matter how many judgements support a given line of argument. As a matter of practice, the fact that the Appeals Chamber has confirmed two Trial Chamber convictions for conspiracy to commit genocide suffices.

The ICTR Trial Chamber found cabinet ministers Justin Mugenzi and Prosper Mugiraneza guilty of conspiracy to commit genocide based on their roles in the removal of Jean Baptiste Habyarimana from his post as the prefect of Butare Prefecture on 17 April 1994. [6] Two other accused, Ferdinand Nahimana [7] and Callixte Nzabonimana [8] were also found guilty of conspiracy to commit genocide, although the judgements were reversed on appeal. Another cabinet minister, Pauline Nyiramasuhuko, was convicted for conspiracy to commit genocide, and her case is currently in appeal. [9]

There are two accused whose convictions were confirmed by the Appeals Chamber. They are former Prime Minister Jean Kambanda[10] and cabinet minister Eliezer Niyitegeka.[11] The two were convicted by two separate Trial Chambers and also confirmed by two separate ICTR Appeals Chambers, thus providing the necessary legal precedent for prosecution of present and future perpetrators for conspiracy to commit genocide. It is misleading and irresponsible for Herman and Peterson to suggest that ICTR Trial and Appeals Chambers have not fairly adjudicated on cases of conspiracy to commit genocide.

* Dr Obote-Odora is Consulting Expert in International Criminal Law and previously the Chief of Appeals and Legal Advisory Division, Office of the Prosecutor, United Nations International Criminal Tribunal for Rwanda. The views expressed are the author’s and do not represent those of the OTP, ICTR or the United Nations.

END NOTES

[1] Edward S.Herman and David Peterson (2014) ‘The Kagame-Power Lobby’s dishonest attack on BBC documentary on Rwanda’ Pambazuka, http://www.pambazuka.net/en/category/features/93357/print, accessed 15 November 2014
[2] http://www.unictr.org/en/tribunal, accessed 15 November 2014
[3] Article 1 of the ICTR Statute, see UN Doc.S/RES/955 (1994), 8 November 1994
[4] Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, para.315.
[5] Edward S.Herman and David Peterson, The Kagame-Power Lobby’s dishonest attack on BBC documentary on Rwanda, at http://www.pambazuka.net/en/category/features/93357/print (last visited on 15 November 2014).
[6] Justin Mugenzi and Prosper Mugiraneza v Prosecutor, Case No. ICTR-99-50-A, Judgement (AC) 4 February 2014
[7] Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007.
[8] Callixte Nzabonimana v Prosecutor, Case No. ICTR-98-44D-A, Judgement (AC) 29 September 2014.
[9] Prosecutor v Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T Judgement (TC) 24 June 2011.
[10] Jean Kambanda v Prosecutor, Case No. ICTR-97-23-A, Judgement (AC) 19 October 2000.
[11] Eliezer Niyitegeka v Prosecutor, Case No. ICTR-96-14-A, Judgement, (AC) 9 July 2004.

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