A SETBACK FOR JUSTICE IN RWANDA

THE ICTR DROPS CHARGES AGAINST COL. LEONIDAS RUSATIRA

A SETBACK FOR JUSTICE IN RWANDA

29 August 2002

The recent decision issued by the International Criminal Tribunal for Rwanda (ICTR) that there is “insufficient evidence” to proceed with the prosecution of Col. Léonidas Rusatira at this stage, demands further explanation. Col. Rusatira was indicted by the ICTR on five counts of genocide and crimes against humanity and arrested in Belgium on 15 May 2002. He was the commander of the Senior Military College (ESM) during the genocide and was a member of the military crisis committee that assumed power in the aftermath of the death of President Juvénal Habyarimana in April 1994. After the genocide, he joined the Rwandese Patriotic Army(RPA).

Four months ago, African Rights issued a statement urging the Government of Belgium, where Rusatira has been living, and the ICTR, to investigate his role during the genocide, in particular with regard to the massacres on 11 April 1994 at ETO, a school in Kigali, and Nyanza, an area close to ETO. More than 2,500 people died a merciless death when they were deserted by the Belgian troops in charge of ETO as part of the United Nations Assistance Mission to Rwanda (UNAMIR). The survivors of those massacres accuse Rusatira of complicity in the killings. Their accounts are detailed in an African Rights’ report published in April 2001, Left to Die at ETO and Nyanza: The Stories of Rwandese Civilians Abandoned by UN Troops on 11 April 1994.

In May, Col. Rusatira was arrested. The grounds for an inquiry into Rusatira’s case have, long been apparent. The first allegations that Col. Rusatira was involved in the massacres at ETO and Nyanza emerged in the immediate aftermath of the genocide. African Rights’ report of April 2001 was based upon survivors’ testimonies and helped to raise public awareness of their accusations, but the ICTR had begun an enquiry into the massacre as early as 1997 and had heard testimony about Rusatira’s role. This became evident during the 1999 trial of Georges Rutaganda, the second vice-president of the interahamwe—who has been sentenced to life imprisonment by the ICTR for orchestrating the massacres at ETO and Nyanza. The court accepted testimony which accused Col. Rusatira of evacuating Hutus from the ETO compound shortly before militiamen descended on the largely Tutsi refugees, and giving the order to take them to Nyanza, where they were massacred.

The ICTR is known to have interviewed Col. Rusatira on several occasions prior to the Rutaganda trial and in connection with the events at ETO and Nyanza. It is clear that Rusatira was known to the ICTR for some years. It is therefore reasonable to infer that it had ample opportunity to establish the facts about his case before arresting him. In view of this, questions need to be asked about the evidence upon which the arrest was based and the specific reasons behind the subsequent decision to release him. His release is all the more surprising as it was made within a comparatively short time by the standards of the ICTR. While it is essential that the Tribunal deal with cases promptly—given the serious backlog in its prosecutions—and all due consideration must also be given to the rights of the accused, this should not be at the expense of thorough investigations.

The result of this about-face in the Rusatira case is deeply unsatisfactory, in contradiction with the aims of the ICTR and is bound to complicate its work. By first appearing to take account of the allegations made by survivors and then appearing to dismiss them without offering a full explanation, as would have been given in the context of a court judgement, it has left the matter hanging, increasing the bitterness and the sense of injustice felt by survivors. The court could still bring a prosecution against Rusatira should it uncover the necessary evidence in the future, but its recent decision suggests a lack of will to pursue further investigations at this time.

In many ways, bringing Rusatira to trial looked set to pose particular challenges for the ICTR from the outset. As one of the most high-ranking and experienced military officers in Kigali at the time, it was natural that he should come under suspicion of involvement. Despite this reality, his case has never been as clear-cut as those of colleagues and fellow members of the crisis committee. There have always been conflicting claims about Col. Rusatira’s role in the genocide and he has been able to draw some credibility from the fact that he is known to have saved the lives of some Tutsis and Hutu opposition members and their families. It is by no means unusual, in the difficult business of documenting the genocide, to encounter evidence that an individual has been simultaneously accused of genocide and praised for acts of humanity and courage, as has Col. Rusatira. Indeed, many other genocide suspects in the custody of the ICTR also protected friends, colleagues or even strangers. This has never been upheld as a convincing defence in the past although the people whose lives were saved will naturally remain grateful to their rescuers.

In responses to the allegations against him, Rusatira has also pointed to the letter he signed up to on 12 April, with other military officers, calling for a halt to the killings. Rusatira was not in fact a consistent and outspoken critic, aside from his signature to this letter and then a second letter written on 6 July 1994, by which time the Rwandese Armed Forces (FAR) had been routed and held no future for its members. Several known opponents of the Habyarimana regime were “converted” to the ideology of the genocide overnight. While the letters are worthy of note, they cannot directly counter the charges made by ETO and Nyanza survivors.

Rusatira has been dubbed a moderate by a range of Rwandese and international commentators. Unlike so many of his former colleagues, he returned to Rwanda in July 1994 and was later integrated into the Rwandese Patriotic Army. But he has since gone into exile in Belgium where he has strong support among some of the Rwandese exiles as well as some Belgians. His relations with the Belgian ambassador and troops were unusually cordial during the genocide and there are several recorded examples of contact between them and Col. Rusatira. At a time of high tension, suspicion and fierce anti-Belgian sentiment they appear to have seen him as an ally despite his position in the military. Among those who have spoken favourably about Col. Rusatira is the Belgian Col. Luc Marchal, head of UNAMIR forces in Kigali, who recalls an incident when he helped him to save the lives of a family under threat. While it is to be expected that such incidents have encouraged some to believe in Col. Rusatira’s innocence, testimony from Marchal carries little weight, with survivors of ETO and Nyanza who also accuse the Belgians of grave errors in their handling of the situation which they believe directly contributed to the deaths of their loved ones in horrific circumstances.

In considering the seemingly contradictory evidence in the Rusatira case, it is important to bear in mind the intense pressure and threat which all Rwandese lived under during the genocide. Those in leadership positions, above all, were called upon to demonstrate their loyalty to the genocidal regime; some lost their lives for failing to do so. It is a harsh truth of the genocide that many participated against their better judgement, in an effort to deflect suspicion of their identities, or to provide a cover while they protected friends or relatives. Tragically, for all concerned, even reluctant killers committed crimes of irredeemable brutality. The story behind the allegations against Rusatira may reveal dilemmas, confusion and lies or it may reveal moral and legal certitudes. But until his case is brought to court either at the ICTR or in Belgium it is unlikely that these will be fully exposed.

Contrary to the detention of most other genocide suspects, the arrest of Rusatira triggered protests from a number of quarters. It is clear that some individuals and organisations, particularly in Belgium, are convinced of his innocence regardless of survivors’ accounts. A number of reports have criticised the Tribunal’s arrest of Rusatira. Unfortunately, these accounts are based largely on a discussion of his reputation rather than on direct testimony from survivors of ETO and Nyanza, or from soldiers and militiamen who took part in the massacres.

Even when the substance of Rusatira’s defence, as expressed in various articles, reports and his own letters is taken into account, many important issues are not resolved. Rusatira was among the first Rwandese to learn that the Belgian soldiers based at ETO were planning to leave. Rusatira, the Belgian commander at ETO, Lt. Luc Lemaire, and the refugees all recall that he came to ETO on 10 and 11 April and that he was informed of the imminent departure of the soldiers. It is surprising that the Belgian commander would pass this information on to a government soldier, at a time of great insecurity and mistrust, particularly following the deaths of 10 Belgian paratroopers at the hands of the FAR. Lt. Lemaire says that he asked Rusatira to organise a defence of ETO “with about 30 soldiers” to which Rusatira made no response and to which there was “no follow-up.” It seems clear that Rusatira spoke of the matter with Major-General Augustin Ndindiliyimana, the head of the gendarmerie, who is currently in detention at the ICTR in Arusha awaiting trial. Whatever the nature of their discussion, or the intentions of either of these two men, in the event no gendarmes were sent, contrary to the claims of some of Rusatira’s supporters (who were in no position at the time to verify this.) Instead, the school was surrounded by soldiers and militiamen organised “like an army.” They were well prepared for a coordinated attack which they began to implement within minutes of the departure of the Belgian soldiers and all the indications are that they had advance notification of the UNAMIR departure.

The refugees were marched away from ETO towards Nyanza where most of them were killed. All the refugees argue that soldiers gave the order to move them to Nyanza and some, who recognised Col. Rusatira as a resident of their home sector, identify him as the soldiers’ commander and “spokesman.” Given the number of witnesses it should not be difficult to establish whether this allegation is true or false. The consequences of the order were devastating. Within half an hour of the refugees’ arrival at Nyanza, most of them perished there in a well-organised bloodbath led by soldiers and supported by large numbers of civilians.

Rusatira’s own account of what happened on the afternoon of 11 April raises still further questions. According to him, he spent the time mounting a rescue operation for the family of Col. Alexis Kanyarengwe, then chairman of the Rwandese Patriotic Front (RPF) and a former colleague. Although he knew by then that the Belgian soldiers were going to be recalled, and he had no information that an alternative means of safeguarding the refugees had been put in place, he says that he considered leaving Kanyarengwe’s family in the hands of Lt. Lemaire at ETO that afternoon. He sent his personal escort to ETO and they reported to him that they had “found UNAMIR gone and ETO deserted.” Rusatira then said he drew the conclusion that “they were in the process of placing the refugees in a safe place before leaving.” He spoke shortly afterwards with Col. Marchal about assisting the Kanyarengwe family. There is no reference in his account of any questions to Marchal about the fate of the 2,500 people at ETO.

The precarious situation of those forced into hiding—and the secrecy, vigilance and delicacy of the efforts required to keep them alive—are underscored in Rusatira’s own writings about the predicaments he faced when he tried to save lives. Kanyarengwe’s relatives were eventually taken in an armoured UNAMIR vehicle and entrusted to the RPF in the dead of night. It is therefore difficult to imagine how Rusatira thought it possible that the Belgians at ETO, who had only hours before sought his help, had moved 2,500 men, women and children—including the elderly, the wounded, the sick, pregnant women and new-born babies—to safety in broad daylight, under the scrutiny of the militia and across a formidable network of roadblocks in Kigali manned by the interahamwe. From his visits to ETO and given the proximity of his own home to ETO, he could see the armed militiamen who kept guard over ETO, and surely heard of the attacks they had launched since 7 April. Even if his version of events is accepted, the genocide was such an open affair that he must have known within hours what had happened at ETO and Nyanza. As a senior military officer, he was in any case directly affected by the fact that Nyanza fell to the RPF on the night of the 11th-12th. And yet, despite the claims that he opposed the genocide, he himself never mentions any attempt to find out what took place, to trace any survivors or to establish who might have been responsible or to lodge any form of protest.

As an organization which has interviewed survivors prepared to testify against Rusatira, African Rights is dismayed to learn that their allegations have been set aside in a perfunctory fashion. Some of the survivors interviewed by African Rights have never had the opportunity to give their statements to the ICTR, even though the identities of all the interviewees are spelt out in the report. Others say they were interviewed some time ago but have not been approached since their statements were published in April 2001. It is understandable that they would not, therefore, view the investigation during the three months since his arrest as thorough and intensive. Nor has the ICTR made contact with African Rights about the Rusatira case, contrary to most of our other reports about genocide suspects of interest to the Tribunal.

The complexity of the 1994 genocide, and of the political situation in Rwanda since, are the daunting background against which the work of the ICTR is carried out. The establishment and administration of the ICTR broke new ground in international justice, but the Tribunal has not often been equal to the testing and valuable goals it has been set. For years, it has been the subject of severe criticism from a range of groups. The ICTR’s handling of the Rusatira case raises new and disturbing questions about its professional competence, judgement and independence. It comes at a time when survivors’ confidence in the institution has hit an all time low. Poor investigations are a disservice to the victims of the genocide and, occasionally, to the accused. They reflect badly on the credibility, and hence the effectiveness, of the institution.

African Rights calls upon the ICTR to review the Rusatira case and to reflect upon how it could have better served justice in this instance. While the UN court has an obligation to act consistently upon the evidence, it also has a duty to employ sensitivity and respect when dealing with the victims of terrible atrocities. They can only be satisfied when they are convinced that no stone has been left unturned in the quest to establish the truth. And where prosecutions falter, survivors should be kept informed and treated with the necessary decency and respect. Instead the Rusatira case, and the manner in which it was handled, has widened the gulf between survivors and the UN, whose soldiers abandoned them to their fate. The danger is they will feel betrayed, once again.