Arusha, March 31, 2011 (FH) - The prosecution Thursday asked the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) to confirm the conviction of former Rwandan Director of Cabinet of Ministry of Defence, Colonel Theoneste Bagosora, following his involvement in the 1994 genocide.

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"Bagosora conviction was established beyond reasonable doubt. He had superior responsibility over the army and this should not be overturned, "Prosecutor George Mugwanya told the Chamber presided over by Judge Patrick Robinson.

According to the prosecutor, the evidence produced during the trial "overwhelmingly "showed that Bagosora, as Director of Cabinet of the Ministry of Defence, assumed the highest authority of the army in absence of the Minister.

"He himself admits in his evidence that he was the right person to take over the responsibilities of the minister. He had the right to preside over the meeting of the general staffs of the army and the gendarmerie. He summoned the two general staffs at the first meeting (on April 6, 1994) and they complied," he submitted.

Therefore, the prosecutor argued, the available evidence that Bagosora had superior power over the armed forces could not be questioned. Even the testimony of General Marcel Gatsinzi goes further to corroborate the evidence which was relied upon by the Trial Chamber to convict Bagosora.

"He (Gatsinzi) confirms that in absence of the minister, powers were assumed by the Director of Cabinet," he said. Gatsinzi, currently Minister for Disaster Preparedness and Refugee Affairs in Rwanda, testified on Wednesday on some issues, including Bagosora's powers over the army between April 7 and 9, 1994.

In his response, however, Bagosora's co-counsel Richard Perras discredited the evidence given by Gen. Gatsinzi, submitting that it was hearsay and not reliable. He also faulted the Trial Chamber's findings that his client exercised effective control over the army and gendarmerie between April 7 and 9, 1994.

"If Bagosora is considered to have higher authority, which we contest, the question raises how has it been established by evidence that (he) knew his subordinate would or were about to commit offences," he submitted.

According to the counsel, "even the highest authority cannot be tasked with obligation of seeing in the future". The superior responsibility notion, he submitted, could not be applied in a vacuum and could be taken in a reality of what is happening.

"One should not loose sight on the time between April 7 and 9, 1994. It is about 65 hours. Whatever the prosecution could describe Bagosora, he is a human being. He could not know everything and do everything at the same time," the counsel argued.

He submitted further that the reasonableness of the conclusion by Trial Chamber as assessed based on the rule of evidence whether was there any evidence that would allow Bagosora to have effective control of the army.

"There was some evidence. However, regarding to the standard of proof in criminal law, was that beyond reasonable doubt? The evidence does not lead to that conclusion," he submitted.

Bagosora, who is considered the mastermind of the 1994 Rwandan genocide, was sentenced to life imprisonment on December 18, 2008 alongside Lieutenant-Colonel Anatole Nsengiyumva, former commander of the military sector of Gisenyi (northern Rwanda), for genocide, among other crimes.

He was found responsible for the killing on April 7, 1994 of Prime Minister Agathe Uwilingiyimana and ten Belgian peacekeepers, other political leaders from the opposition and massacres of many Tutsi civilians.


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