Barayagwiza, along with co-defendants Ferdinand Nahimana and Hassan Ngeze were found guilty in 2003 on several charges of genocide stemming from their roles as media leaders in the 1994 Rwanda genocide.
Last Wednesday, the appeals chamber overturned several of the trial chamber's decisions related to Barayagwiza's and Nahimana's leadership of RTLM Radio and Ngeze's command of the newspaper Kangura. Nahimana and Ngeze saw their sentences reduced from life imprisonment to 30 and 35 years, respectively, while Barayagwiza received a reduction from 35 years to 32 years behind bars.
"I don't think that anyone would argue that what the journalists did at RTLM Radio after April 6 was reasonable or had anything to do with freedom of speech," Herbert said while taking a break from a symposium held in Arusha on the ICTR's legacy. "It was about people abusing their position in the media to make a bad situation worse."
The appeals chamber found Barayagwiza not responsible for any remarks made by RTLM's journalists from the period of April 6, the day the massacres began, onward. Judges upheld the trial chamber's verdicts pertaining to his leadership role within the extremist Coalition for the Defense of the Republic (CDR) party.
Where Herbert finds fault with the judges' decision, however, is in its failure to account for the unfair treatment his client received during the original trial. Top among his complaints were two actions taken by Judge Navanethem Pillay, first in meeting with Rwandan President Paul Kagame three weeks before the trial was to begin, and secondly in not adjourning the court after the dismissal of Barayagwiza's original counsel and defending him herself for four days during trial proceedings.
"I cannot think of anything more calculated to give the appearance of bias than the combination of refusing to adjourn... refusing to allow the defendant to comment upon that... and on top of all of that, saying you're going to represent the defendant... That alone should have made the whole trial fall for everybody... That alone."
Regarding Pillay's site visit Herbert said, "Judges will go and inspect a site to understand distances and geography, but it doesn't involve you going and sitting down with the president of that country."
He says an ICTR press release at the time announced her visit was intended to "maintain good working relationship with Rwandan government."
"Pillay did not pay any regard to the need for a fair trial. She presumably thought, ‘I am fair enough, and that's the end of it,'" Herbert stated.
When asked what his client's reaction was on being told of the appeals chamber's decision (Barayagwiza chose not to attend the hearing), Herbert said, "He was completely unsurprised. He had come to the view that the decision was very largely dictated by the political stance the Rwandan government and the ICTR took a long time ago... His conviction was determined years ago... The only thing that the trial chamber and the appeals chamber had to do was maintain a conviction."
The outspoken Herbert, born in Scotland to an English mother and a father hailing from Sierra Leone, has worked as a barrister since 1982, where since 2002 he has chaired the London Race Hate Crime Forum, charged with ensuring a multi-agency approach to dealing with hate crimes within the capital. He is also a criminal court judge.
Now he will return to England, where he looks to "continue trying to advance racial and social justice... (to) try to ensure that there is a fair system for everybody," something he found lacking during his experience at the ICTR.
© Hirondelle News Agency