24.12.08 - ICTR/MILITARY I - PROSECUTOR’S DILEMMA TO PROVE CONSPIRACY TO COMMIT GENOCIDE

Arusha, 24 December 2008 (FH) - A year before the scheduled end of the first instance trials, the International Criminal Tribunal for Rwanda (ICTR) still has not succeeded in reconstituting the scenario of the genocide committed against Tutsis in 1994. When, how, where and by whom the plan of the genocide was prepared? There are still many questions which the prosecutor has not yet answered in a way to convince the ICTR judges.
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However, last week, the Tribunal signed one of its great works in rendering its much awaited judgment in the Bagosora et al. trial. The former cabinet director of the defence ministry, Colonel Théoneste Bagosora, and two of his co-defendants were sentenced to life in prison while another officer was acquitted. The three convicts, all originally from Gisenyi, as was the former President Juvénal Habyarimana, were convicted, to a certain extent, for the crimes of their subordinates.

According to this judgment, Bagosora takes responsibility for the assassination of the Prime Minister Agathe Uwilingiyimana, of the ten Belgian peacekeepers, certain political leaders, as well as the massacres of Tutsis in road blocks in Kigali and the region of Gisenyi. But he was acquitted of the count of agreement in order to commit genocide. Also, Constant Raphaël, Bagosora's French lawyer, who knew the fight was lost in advance, has something to be pleased in spite of this lengthy sentence. "It is a questioning of the entire historiography of Rwanda", estimates the defence lawyer who always rejected the planning theory.

The prosecutor is handicapped by a strict interpretation by the judges of the temporal jurisdiction which goes from 1 January to 31 December 1994. According to the jurisprudence of the Tribunal, no conviction, even for agreement in order to commit genocide, can be rendered on the basis of facts prior to January 1994. The prosecutor explains in vain that the agreement is a crime continuous in time: the judges require that he prove the existence of this plot in 1994.

After this failure, there remains for the prosecutor another occasion to prove the agreement: the chaotic trial of three former leaders of the MRND, Mathieu Ngirumpatse, Edouard Karemera and Joseph Nzirorera. So in the Bagosora case, the prosecutor had tried to bring evidence of a plot between military officials, in the MRND trial, he supports the existence of an agreement between political leaders. But even then, even if the Chamber is still to decide, many pieces of evidence presented are prior to January 1994. As in the creation of the Interahamwe militia which, according to the prosecution, proceeded this agreement.

This planning is fundamental. If the ICTR does not manage to prove, it will leave the door open to all the negationnists. According to the Convention of 48 on genocide, planning is constitutive of the crime. Already in a report from 2001, the organization International Crisis Group (ICG) deplored the failure of the ICTR to shine light into the plan of the genocide.

PB/MM/GF

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