By Eric Vandebroeck and co-workers
More than hate, more than fear, more than machetes or machine guns, scale has always been the genocidaires’ most powerful weapon. The world remembers mass murder, mass rape, mass crimes, and speaks with pathos of nameless, faceless victims, and the tribunals tell us, through millions of pages of testimony and other overwhelming proof, that those mass crimes were committed by these relatively few men. The perpetrators’ ability to execute atrocity outstrips our capacity to imagine it. We cannot grasp it. The overwhelming proof overwhelms us.
As we commented in 2003 the Rwandan genocide is widely acknowledged to have been one of the biggest modern genocides, as many sources pointed to the sheer scale of the death toll as evidence for a systematic, organized plan to eliminate the victims. Yet are also those who spread disinformation and denial. An early example of this was the 2004 popular movie "Hotel Rwanda" which was based on myth and outright lies. Yet this kind of problem is alive and well in 2020.
The 11 January 1994 cable was difficult to ignore. As a piece of material evidence in court, it caused severe problems for defense lawyers. It was, perhaps, the most famous fax in UN history. Sent from Kigali to the UN Secretariat in New York by Lieutenant-General Roméo Dallaire, it gave details of preparations then underway to register all Tutsi families in Kigali with a view to their extermination.
The information it contained came from an informer, a coordinator with the Interahamwe militia, who claimed intimate knowledge of the activities of the Hutu Power movement. He said lists of Tutsi were being compiled in each sector (termed "secteur" administrative subdivision), going from house to house, noting every family member. Following this intelligence gathering, every secteur was provided with a militia of forty operatives trained to kill at speed. Each group had been secretly trained in weapons, explosives, close combat, and tactics. Within twenty minutes of receiving the order to kill, the militia in each secteur could immediately murder 1,000 people. There were hidden stockpiles of weapons all over the city.
The informer warned that President Juvénal Habyarimana had lost control over his old party, the Mouvement Révolutionnaire National pour le Développement (MRND). Furthermore, the informer told of plans to goad the Rwandan Patriotic Front (RPF) to scupper the peace agreement and restart the civil war. In violent, coordinated, and preplanned demonstrations, the Interahamwe would provoke Belgian peacekeepers and kill some of them to guarantee the withdrawal of the contingent, the backbone of the UN Assistance Mission for Rwanda (UNAMIR).
The full text of the famous two-page 11 January fax to UN headquarters emerged in its entirety a few weeks later and received international press coverage to prove the extent of the failure over Rwanda. In later years the fax was part of the prosecution in the trials of the génocidaires at the International Criminal Tribunal for Rwanda (ICTR), disproving the many claims from defense lawyers that the slaughter had been spontaneous.
For this reason, the defense lawyers tried to turn the court's attention away from the information contained in the fax to the informer himself. They launched a sustained attack on his reputation, and one of the defense lawyers at the ICTR was the Canadian Christopher Black. In 2002, he had defended the former commander of the national gendarmerie, Major-General Augustin Ndindiliyimana, who in April 1994 was in charge of maintaining public order and who was accused of genocide in the trial known as Military Two. In the courtroom, Black was determined to nullify the fax and told the trial chamber that Jean-Pierre was a double agent who worked for the RPF and had set out to smear President Juvénal Habyarimana.
As New Yorker reporter Philip Gourevitch dubbed it in 1998, the Dallaire genocide fax was probably doctored a year after the mass killings in Rwanda ended. In a chapter devoted to the fax in Enduring Lies: The Rwandan Genocide in the Propaganda System, 20 Years Later Edward S. Herman and David Peterson argue two paragraphs were added to a cable Dallaire sent to Canadian General Maurice Baril at the UN Department of Peacekeeping Operations in New York about a weapons cache and protecting an informant (Dallaire never personally met the informant). The added paragraphs said the informant was asked to compile a list of Tutsi for possible extermination in Kigali and mentioned a plan to assassinate select political leaders and Belgian peacekeepers.
At the ICTR former Cameroon foreign minister and overall head of the UN mission in Rwanda, Jacques-Roger Booh-Booh, denied seeing this information and there’s no evidence Dallaire warned the Belgians of a plan to attack them, which later transpired. Finally, a response to the cable from UN headquarters the next day ignores the (probably) added paragraphs. Herman and Peterson make a compelling case that a doctored version of the initial cable was placed in the UN file on November 27, 1995, by British Colonel Richard M. Connaughton as part of a Kigali-London-Washington effort to prove the existence of a plan by the Hutu government to exterminate Tutsi.
Even if the final two paragraphs were in the original version, the credibility of the information would be suspect. Informant “Jean-Pierre” was not a highly placed official in the defeated Hutu government, reports Robin Philpott in Rwanda and the New Scramble for Africa: From Tragedy to Useful Imperial Fiction. Instead, “Jean-Pierre” was a driver for the MRDN political party who later died fighting with the Rwandan Patriotic Front.
Incredibly, the “genocide fax” is the primary source of any documentary record demonstrating the UN foreknowledge of a Hutu “conspiracy” to exterminate Tutsi, a charge even the victor’s justice at the ICTR failed to convict anyone of. According to Herman and Peterson, “when finding all four defendants not guilty of the ‘conspiracy to commit genocide’ charge, the [ICTR] trial chamber also dismissed the evidence provided by ‘informant Jean-Pierre’ due to ‘lingering questions concerning [his] reliability.’”
Tellingly, Dallaire didn’t even initially adhere to the “conspiracy to commit genocide” version of the Rwandan tragedy. Just after leaving his post as UNAMIR force commander Dallaire replied to September 14, 1994, Radio Canada Le Point question by saying, “the plan was more political. The aim was to eliminate the coalition of moderates. … I think that the excesses that we saw were beyond people’s ability to plan and organize. There was a process to destroy the political elements in the moderate camp. There were a breakdown and hysteria absolutely. … But nobody could have foreseen or planned the magnitude of the destruction we saw.”
Doctoring fax to make it appear the UN had foreknowledge of a plot to exterminate Tutsi may sound outlandish, but it’s more believable than many other elements of the dominant narrative of the Rwandan genocide. The day after their editorial, for instance, the Star published a story titled “25 years after the genocide, Rwanda rebuilds” which included a photo of President Paul Kagame leading a walk to commemorate the mass killings. But, Kagame is the individual most responsible for unleashing the hundred days of genocidal violence by downing a plane carrying two Hutu presidents and much of the Rwandan military high command.
The Toronto Star published a story titled “Did Rwanda’s Paul Kagame trigger the genocide of his own people?” For its part, the Globe and Mail have published a series of front-page reports in recent years confirming Kagame’s responsibility for blowing up the plane carrying Rwandan President Juvénal Habyarimana, which triggered mass killings in April 1994. In an October story titled “New information supports claims, Kagame forces were involved in assassination that sparked Rwandan genocide” the Globe all but confirmed that the surface-to-air missiles used to assassinate the Rwandan and Burundian Hutu presidents on April 6, 1994, came from Uganda, which backed the RPF’s bid to conquer its smaller neighbor. (A few thousand exiled Tutsi Ugandan troops, including the deputy minister of defense, “deserted” to invade Rwanda in 1990.) These revelations strengthen the case of those who argue that responsibility for the mass killings in spring 1994 largely rests with the Ugandan/RPF aggressors and their US/British/Canadian backers.
By presenting the individual most culpable for the mass killings at the head of the commemoration for said violence the Star is flipping the facts on their head. The same might be said for their depiction of the Canadian general. At the end of their chapter tracing the history of the “genocide fax” Herman and Peterson write, “if all of this is true,” then “we would suggest that Dallaire should be regarded as a war criminal for positively facilitating the actual mass killings of April-July, rather than taken as a hero for giving allegedly disregarded warnings that might have stopped them.”
Also in US documents that have been declassified, there are numerous redactions. A scandal exists in France where successive governments have prevented access for historians and journalists to crucial military and political archives, including those of President François Mitterrand and the officials who worked in his unaccountable Africa Unit in the Élysée Palace. That is one of the reasons why it will be interesting to see what the outcome will be of the in part one mentioned French Court rule on Habyarimana's assassination by 4 July 2020.
As we detailed in our own initial 2003-4 case study France has long faced charges that it supported the Hutu leadership before and even during the massacres. President Paul Kagame of Rwanda has called French soldiers “actors” in the genocide — a charge denied by the former French prime minister, Édouard Balladur, as “a self-interested lie.” But on Friday, President Emmanuel Macron of France ordered a two-year government study of France’s role in the Rwandan genocide.
French judges have heard from a new witness who claims to have seen missiles allegedly used to kill former Rwandan president Juvenal Habyarimana, whose death sparked genocide in 1994, a source close to the case told AFP on Monday.
The witness says he saw two surface-to-air missiles at the headquarters of the Tutsi militia headed by current Rwandan President Paul Kagame, which were later used to take down Habyarimana's plane.
A consequence of excessive government secrecy is the opportunity it afforded the génocidaires. An information vacuum gave them free rein to spread lies and disinformation with a view to denying their crime. They deceived the Western press, promoting lies faster than the facts could debunk them.
Thus, for example, in September 2016, the chief propagandist of Hutu Power, Ferdinand Nahimana, walked free from prison, having served twenty years and six months in international custody.1 It was thirteen years since his conviction to a life term imposed in a courtroom at the International Criminal Tribunal for Rwanda (ICTR), where he was found guilty of genocide, direct and public incitement to commit genocide, conspiracy to commit genocide, crimes against humanity (persecution) and crimes against humanity (extermination).2
For the survivors of the genocide of the Tutsi, his release was a devastating development. The decision betrayed a lack of understanding of the crime of genocide and failed to acknowledge its magnitude. Nahimana continued to claim his innocence, and, given the Hutu Power propaganda produced by Nahimana and his fellow génocidaires, these prisoners continued to promote the same poisonous and racist ideology that motivated their criminal acts in 1994. To have released Nahimana at a time when genocide denial was more entrenched than ever was irresponsible. The decision showed contempt for the survivors and their continued suffering.
The Rwandan minister of justice, Johnston Busingye, called for the removal of the US judge responsible, Theodor Meron. In coming to his decision, Meron had held no hearings, had taken no account of the views of the survivors, and had given no say to the government of Rwanda. His decision was secret and unaccountable. No appeal was possible. A brief official explanation came in the form of a short, redacted report that provided necessary background information.3 It included glowing testimonials from prison wardens who described Nahimana’s impeccable conduct. In the course of his prison career, Nahimana had lived ‘in perfect harmony’ with fellow inmates and the prison administration. He was polite, disciplined, and would quickly reintegrate into society as someone ‘humble and courteous’.
Nahimana served his sentence in a community with his colleagues, a group of Rwandan génocidaires who lived together in a purpose-built compound within the high-security Koulikoro prison, some thirty-five miles (fifty-seven kilometers) from Bamako, the capital of Mali.4 The special compound, constructed at United Nations expense, was segregated from the misery found in the rest of the prison. Within yards of this ‘international wing,’ there were unsanitary conditions, overcrowding, a lack of medical care, and not all the prisoners had access to potable water. The génocidaires, on the other hand, had separate cells, showers, a gym, a well-stocked library, a dining room, and a church.
The UN, an organization intended by its founders to uphold human rights, required that the Rwandan génocidaires live in conditions that met the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs). Initially adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, they were given final approval by the UN Economic and Social Council in 1957.5 Conditions had to comply with the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, approved by UN General Assembly resolution 43/173 of 9 December 1988, as well as the Basic Principles for the Treatment of Prisoners, affirmed by UN General Assembly resolution 45/111 of 14 December 1990. These requirements are non-binding on UN member states. To ensure the proper application of these international standards, the particular compound in the Koulikoro prison received visits from global humanitarian groups, including the International Committee of the Red Cross (ICRC).
In this special community, according to the wardens, Nahimana had a crucial role. ‘It was quite an achievement among a group of intellectuals in which each member is intent on promoting his ideas.’ They praised his character and personality. A former warden noted the contribution of Nahimana to the smooth running of the unit: he helped to ‘restrain and keep his compatriots in check.’ Even the Ministry of Justice in Mali weighed in with a letter to support his early release, telling Judge Meron that between 2009 and 2013 Nahimana was the ‘Rwandan group’ representative, helping his fellow inmates to ‘resolve many issues’
A psychosocial report described his behavior as exemplary. He was ‘always willing to listen to his co-detainees’.6 Furthermore, Nahimana submitted his petition for release, written by three lawyers. They stressed his family ties, which he managed to maintain, and that he hoped to ‘work for peace and reconciliation’ in Rwanda. However, it was not explained by the lawyers how this might be achieved.7 Meron wrote in his report that the prisoner showed ‘some signs of rehabilitation.’ The judge seemed not to care that Nahimana continued to deny his responsibility in ‘these crimes.’ While his lawyers maintained that their client did not question or minimize ‘the genocide,’ or his ‘profound regret’ for the ‘crimes committed in Rwanda,’ what he did not accept was a role in the criminal nature of the broadcasts of RTLM. Nahimana had not once offered to help the office of the ICTR prosecutor. This was something Meron regarded as a ‘neutral factor.’
It remains unclear whether the judge critically assessed the information he received about Nahimana. His short report contained no detail at all about how the prisoner was ‘rehabilitated.’ Afterward, there were doubts expressed about the capacity of the prison authorities in Mali to develop rehabilitation programs for these Rwandan prisoners, particularly given the language and cultural differences.8
In their special compound, the génocidaires kept in touch with world events, received frequent visitors, and were interviewed by journalists and academics. They received $2 a day to buy newspapers, and payment was provided for telephone calls. They posed no problems for the prison authorities. They spent their time working on their campaign of denial, and the facilities provided for them helped them to write books and communicate with publishers who were willing to produce their work. The prison warders noted how educated these prisoners were and how they kept to themselves and worked on their ‘political activities’. A member of the Koulikoro prison management gave a radio interview in which he explained that these prisoners demanded ‘justice for all victims without exception,’ whether Tutsi or Hutu.9
From the special compound in Mali and another prison in Benin, the génocidaires continued to protest their innocence, influence newcomers to the subject, find new and receptive audiences and seek out conspiracy theorists and gullible journalists and academics. Their written work repeated the familiar stories of genocide denial. How more Hutu people died than Tutsi, how the killing was self-defense, the deaths not intentional, there was no planning and no central direction, and the Hutu were the real victims. From this particular compound, the chief propagandist, Ferdinand Nahimana, had two books on sale on Amazon (in France), and the author described himself as a political prisoner.10 In their community, the génocidaires spent time analyzing numerous ICTR and UN documents and wrote appeals to the authorities. Only the truth could save the people of Rwanda, wrote Nahimana.11
The supporters of their campaign of denial praised the Mali prison authorities for not succumbing to ‘the demonization of Rwandan Hutus’ that had turned them into monsters in Western public opinion. These men deserved our pity. They had been uprooted from the lush green lands of home to a hot, dry, and dusty Mali. Furthermore, Rwanda was a Christian and Mali Muslim. The Montreal journalist and publisher Robin Philpot wrote: ‘For prisoners convinced of their innocence, the worse problem is the distance from their families.’ Philpot wrote about ‘the colonial nature of these new forms of UN-sanctioned penal colonies.’ How could they make their cases known and hope to reopen them? This was nothing less than banishment, and these prisoners were condemned to a long slow death. Philpot reported complaints from the génocidaires that they ‘had been made to disappear from the news.’12
This was not strictly true. An invaluable glimpse inside the special compound in Mali, where the génocidaires lived came in filmed footage broadcast on ITV news in the UK on 21 July 2015. It was billed a world scoop and was an interview with Jean Kambanda, the world’s first head of government to plead guilty to the crime of genocide. The Africa correspondent for ITV, John Ray, had gained access to a top security prison, he said, that housed the men behind Africa’s ‘final solution.’
The on-camera interview with Kambanda, economist and banker, the prime minister of the Interim Government that oversaw the extermination program of the Tutsi, took place in the library. Kambanda was the world’s highest-ranking political leader held to account for the crime of genocide, and he was serving a life term, but he had later retracted his plea. In the television footage, Kambanda walked through gardens with a briefcase and talked and laughed with the British journalist. He appeared portly, having gained weight since the last day of the trial in September 1998. He began the interview in faltering English, ‘I cannot express any regrets for something I have not done. Someone else did it.’ The truth was still in dispute, the journalist said at the end. Kambanda admitted to Ray that he had distributed weapons, but only so people could protect themselves. His conscience was clear. He had been a ‘puppet’ and felt no sense of guilt. ‘We are fighting to be free,’ Kambanda told Ray.
After the announcement of the release of Ferdinand Nahimana Justice Navi Pillay, the South African judge who presided in the media trial at the ICTR said no one had consulted her about the early release of Nahimana, and, as the presiding judge in the trial, she thought this would have been appropriate. Pillay expressed concern at the lack of any post-release conditions imposed on Nahimana and wondered why no realistic possibility existed to monitor him, to supervise his activities, or to find out whether his racist propagandizing continued. Meron had simply granted ‘an irreversible and unconditional form of release, an unconditional reduction in the sentence’ that had resulted in complete freedom. The decision threatened the credibility of international justice, Pillay believed.
That Meron had decided the fate of Nahimana after having earlier played a role in reducing his sentence on appeal was of concern. On 28 November 2007, the Appeals Chamber had reduced Nahimana’s life sentence to thirty years. Meron had written a dissenting view in the appeal judgment, wanting to reduce even further the thirty-year sentence agreed upon by the two other appeal judges. He thought the punishment of thirty years too harsh. In his dissenting view, Meron was scathing of the media trial and pointed to the ‘sheer number of errors’ in the trial judgment. He called for a new trial because ‘mere hate speech’ was not the basis for a criminal conviction.13 Meron believed that the liability connected to hate speech was illegitimate in light of freedom of expression, and this was explicitly grounded in the free speech guarantee of the US First Amendment.14
I believe that the only conviction against him that can stand is for direct and public incitement to commit genocide under Article 6(3) and based on specific post-6 April broadcasts. Despite the severity of this crime, Nahimana did not personally kill anyone and did not personally make statements that constituted incitement. In light of these facts, I believe that the sentence imposed is too harsh, both about Nahimana’s culpability and to the sentences meted out by the Appeals Chamber to Barayagwiza and Ngeze (co-accused), who committed graver crimes. Therefore, I dissent from Nahimana’s sentence.
Fellow ICTR judges were not alone in their concerns at these developments. Professor Gregory S. Gordon, professor of law at the Chinese University of Hong Kong (CUHK) Faculty of Law, worked on the media trial from its beginnings and was an expert on atrocity speech in the circumstances of the 1994 genocide of the Tutsi. Gordon, who had helped gather prosecution evidence, believed that the media trial was so significant that from a historical perspective, it had helped to define the distinction between hate speech and speech used to incite genocide.
Gordon published Atrocity Speech Law: Foundation, Fragmentation, Fruition in 2017. In an interview in London that year, he explained the crucial role of Ferdinand Nahimana and claimed that, without him, the hate radio RTLM would not have existed. The connection between hate speech and atrocity in Rwanda was so secure that the media trial ‘served as a virtual laboratory for the development of atrocity speech law.’15 Ideology and propaganda were integral to the crime of genocide, and the 1994 genocide of the Tutsi of Rwanda showed how mass media was a causal factor in mass atrocities.
A direct challenge to the views of Meron on free speech came in a foreword to Gordon’s book, written by a Nuremberg prosecutor, Benjamin B. Ferencz. Ferencz believed a failure to criminalize hate speech served only to encourage fanatics; for example, those responsible for the genocide of the Tutsi. He added: ‘The first amendment to the US Constitution that guarantees freedom of speech was never intended to justify the violation of fundamental human rights designed to protect everyone.’ Hatred generated by vicious propagandists such as Julius Streicher was one of the main reasons the Nazi crimes could be committed.
Curbing hate speech was a way to prevent genocide, for it was the case that arousing public fears could incite it. ‘We have still not recognized that you cannot kill an ingrained ideology with a gun,’ wrote Ferencz. From the start of the media trial, Gordon recalled, there was a dearth of jurisprudence to guide them. As the tribunal geared up in 1996, on one set of shelves in an almost empty library was a complete set of the transcripts of the trials at Nuremberg.16
Judge Theodor Meron had never sat through a genocide trial. He served only on the Appeals Chamber, and so did not experience the agonizing testimony in the trials. He did not take part in the debates among the judges about the appropriate length of sentences imposed on the génocidaires for their unspeakable crimes. In her interview, Judge Navi Pillay carefully explained why the judges had decided to impose life sentences in the courtrooms of the ICTR, something the trial judges had discussed at length and taken seriously. The scale and magnitude of the crime were never in doubt from the very first trial, Pillay explained, nor its brutality.
Pillay was one of three judges in the world’s first genocide trial held at the ICTR to hear the case of Jean-Paul Akayesu, a middle-ranking official in local government, a bourgmestre (mayor), a teacher and schools inspector. Found guilty of nine counts of genocide, direct and public incitement to commit genocide and crimes against humanity – these included extermination, murder, torture, rape, and other inhumane acts – his life term was confirmed on appeal.
The trial of Akayesu made legal history in another way. The crime of rape was not initially in the indictment. Still, in the course of the trial, and after questioning from Pillay, the testimony from prosecution witnesses had revealed the level of sexual crimes that took place in the genocide. Without Pillay, the courts might never have addressed this aspect of the genocide, and she went on to ensure groundbreaking jurisprudence on rape as a crime of genocide. It was a significant milestone and determined that sexual violence was an integral part of the process of destruction: the Akayesu judgment noted, ‘Rapes resulted in physical and psychological destruction of Tutsi women, their families, and their communities.’17
The collection of data to determine instances of rape and sexual violence had been fraught with problems. Today, an accurate number cannot be set. Most experts believe it to be in the region of 250,000 rapes and sexual assaults.18 The sexual violence in Rwanda included sexual slavery, forced incest, deliberate HIV transmission, forced impregnation, and genital mutilation.19 The sexual attacks intended to humiliate, demoralize, and enslave. The evidence in the Akayesu trial had shown Tutsi women targeted for sexual violence, and this had contributed to the destruction of the Tutsi group as a whole. In the media trial in 2003 over which Navi Pillay presided, there was expert and witness testimony that confirmed Hutu Power propagandists had targeted Tutsi women, the targeting woven into the planning of the genocide in 1994.
In the light of all this evidence and the magnitude of the crimes, the imposition of life sentences was appropriate, said Pillay. This was widely accepted by ICTR judges who expected the génocidaires to serve their sentences in full. Only those who confessed and cooperated with the prosecutor were eligible for early release. The tribunal attached significant value to ‘voluntary, substantial, and long-term cooperation with the prosecutor.’
When appointed president of the International Residual Mechanism for Criminal Tribunals (MICT) in 2012, known as the Mechanism, Meron had assumed responsibility for the supervision of all international prisoners. Meron was now in charge of making new rules and judgments upon these cases. A Polish-born US citizen and an international lawyer with a stellar career, Meron was a recipient of the French Légion d’Honneur and a Shakespeare scholar. The first president of the Mechanism, Meron, served from its creation in 2012 until January 2019.
The Security Council established the Mechanism to complete the work of two international criminal tribunals when they closed – the ICTR and its forerunner, the International Criminal Tribunal for the former Yugoslavia (ICTY).20 A part of the mandate of the Mechanism was to supervise those convicted of grave violations of international humanitarian law in Rwanda and the former Yugoslavia.
Meron had served on the Appeals Chamber used by both the ICTY and the ICTR. He was widely considered one of the world’s most distinguished specialists in international human rights law and international penal law, his numerous books and articles contributing to the advance and development of the discipline, and he advised the US government and State Department. In his job as president of the Mechanism, Meron maintained high-level contacts with the governments of UN member states to facilitate and improve cooperation with the Mechanism: he was required to make annual reports to the General Assembly and biannual reports to the Security Council.21
With Meron as president of the Mechanism, the prospects of the imprisoned Rwandan génocidaires improved considerably. Meron took advantage of his powers as president to alter the internal procedures already in place. He used a device known as ‘practice directions’ to adopt new rules for the method for the determination of applications for pardon, commutation of sentence, and early release of persons convicted by the ICTR, the ICTY or the Mechanism (PDER). Meron, the only full-time judge on the Mechanism, ensured approval of his new rules by a plenary of judges via remote communication in June 2012.
His changes had significant results.22 Meron was no longer required to make public his decisions on early release and could now take into account humanitarian and health issues. He was no longer needed to consult survivors nor to ask the original trial judges for an opinion. However, when the Security Council created the ICTR, the enabling resolution mandated that in early-release cases, there must be consultation with trial judges.23 This was also a requirement written into the statute of the ICTR.24 Although the enactment of the Mechanism did not refer to consultation with trial judges, its rules and practice specified that the president should consult with any judges of the sentencing chamber, but only those who continued to serve as judges on the Mechanism.25 This provision disappeared, and by 2016, when the time came to release Ferdinand Nahimana, Judge Meron was no longer required to consult any judges at all. One legal scholar noted drily, ‘Perhaps release is considered to be an administrative or executive task at the MICT (Mechanism), but this should not preclude judicial review of decisions.’26 Another factor that significantly improved the prospects of the génocidaires was the decision made by Judge Meron to apply the same rules to the Rwandan prisoners as those that governed the imprisonment of those responsible for war crimes in the former Yugoslavia. There was a need for ‘equality among international prisoners, irrespective of the court that sentenced them.’27 At the ICTY, convicted prisoners were eligible for release after they had served two-thirds of their sentences. The two-thirds eligibility rule henceforth applied to the entire prisoner population over which he, as president of the Mechanism, supervised. While conceding, this could ‘constitute a benefit for the Rwandan prisoners,’ he wrote, ‘this alone could not justify discrimination between the groups of convicted persons under the jurisdiction of the Mechanism.’
When in October 1994, informal negotiations had taken place in the Security Council to discuss the establishment of a criminal tribunal, the Rwandan ambassador who was representing the new government established in Kigali wanted those convicted by the tribunal to serve their sentences in Rwanda. He sought a voice for the Rwandan government on any pardon or commutation of sentence and warned that the members of the former Hutu Power government might ‘be sent to serve their time in France and would be able to wangle their way out of jail early.’28
It did not turn out this way. Only in June 2018, and facing criticism for the first time in his six years as president of the Mechanism, did Judge Theodor Meron consult the Rwandan government about the next three proposed early releases. Rwanda’s justice minister, Johnston Busingye, wrote directly to Meron to object in the strongest terms to any further statements. The severity and gravity of the crimes should be sufficient to deny the prisoners’ applications.29 ‘Nothing about these people has changed,’ he said. ‘They have shown no remorse, not even acknowledgment of their crimes.’ There were objections elsewhere and Toby Cadman, the co-founder of a human rights organization in London, Guernica 37 International Justice Chambers, thought that early release of anyone convicted of the crime of genocide served only to undermine the process of international law.30
One of the three prisoners under consideration was journalist Hassan Ngeze, the editor of Kangura, convicted in the media trial at the ICTR of genocide and public incitement to commit genocide. Just as for Ferdinand Nahimana in the same trial, the Appeals Chamber had reduced Ngeze’s life sentence to thirty years. One of the media trial lawyers, the prosecutor Simone Monasebian, on hearing of the possibility of Ngeze’s release, wrote to Meron. She explained that Kangura and radio RTLM had fuelled the genocide, and both had been more potent and dangerous than bullets or machetes. The génocidaires were unrepentant violent extremists, she told him.
The survivors’ organization Ibuka announced that Meron was the ‘epitome of all things wrong following the aftermath of the 1994 genocide’. The organization had repeatedly called for an investigation of every controversial decision taken by Meron, either reduction in sentence or early release. Any decision that served to benefit genocide perpetrators also helped their campaign of denial. Every decision that diminished the status of the crime of genocide needed investigation.31
There were several cases worth consideration. Meron was the presiding judge of five justices on the appeal that reduced the life sentences of Colonel Théoneste Bagosora and Colonel Anatole Nsengiyumva, both originally sentenced to life in prison for genocide, crimes against humanity and war crimes. The penalty of Lieutenant Colonel Anatole Nsengiyumva, the northern commander, former head of army intelligence, reduced to fifteen years, saw him freed with time served taken into account. In November 2009, Meron was the presiding judge in the appeals chamber decision to acquit Protais Zigiranyirazo; he was the notorious brother of Agathe Kanziga, the wife of President Habyarimana, and convicted of genocide and extermination as a crime against humanity. Judge Meron said that the original trial erred in its handling of evidence. In 2013, Meron presided over the appeal that acquitted and released Justin Mugenzi and Prosper Mugiraneza, initially sentenced to thirty years for genocide, both ministers in the Interim Government.
Meron also granted the early release of the Roman Catholic priest, Father Emmanuel Rukundo, who served fifteen years of a twenty-three-year sentence, convicted in February for genocide, murder, and extermination as crimes against humanity. Meron was already familiar with the Rukundo case when he granted him early release. When a member of the Appeals Chamber, he was one of five appeal judges who, in October 2010, had reduced Rukundo’s sentence from twenty-five to twenty-three years. The appeal reversed his genocide conviction and blamed the original trial for not having proved genocidal intent in the mental harm he had inflicted with his sexual assault on a twenty-one-year-old woman.
Some tried to find reasons for Meron’s leniency towards the génocidaires. A few months after the release of Nahimana, in January 2018, Gregory Gordon gave a paper, ‘On the Early Release of the “Rwandan Goebbels”: American Free Speech Exceptionalism and the Ghost of the Nuremberg-Tokyo Commutations.’ In the article, Gordon questioned whether the decision-making of Meron was an example of exactly how American power influences the operations of international criminal justice. Gordon thought similarities existed with other occasions when US political interests affected the treatment of war criminals. In the early 1950s, US High Commissioner for Germany John J. McCloy pardoned or commuted the sentences of numerous high-level Nazi defendants convicted at Nuremberg. That same year, General Douglas MacArthur began releasing high-level Japanese war criminals sentenced by Nuremberg’s sister Tokyo Tribunal. The shifting Cold War policies favored rapprochement with the Germans and Japanese.
Others considered the possibility of US influence. They recalled the controversy that surrounded Meron’s decisions in ICTY cases. In 2013, in a leaked confidential letter, a judge at the ICTY, Frederik Harhoff, had complained that Meron had exerted ‘persistent and intense’ pressure on his fellow judges to allow Serb and Croat commanders, prisoners convicted at the Yugoslavia war crimes court, to go free. Meron had wanted increased proof of ‘specific direction’ by an accused military or senior political leader, a higher burden of evidence for those in command.
On that occasion, there had been complaints from international lawyers and human rights groups. Some judges said in private that the rulings had abruptly rewritten legal standards and would now serve to protect military commanders. The changes Meron made, however, were to quell fears from the US government in particular that it could face legal action against senior leaders for war crimes. Still, others speculated that this was a question of economics and that the US, retreating into isolationism, did not want to continue sending money to the UN to pay its share for the upkeep of international prisoners.32
The harshest criticism came in the UN Security Council in an address by the Rwandan ambassador, Valentine Rugwabiza. On 6 June 2018, she spoke of the failing credibility of the Mechanism, condemning its secret procedures and lack of accountability. The Council was due to discuss an application by Judge Meron for a renewal of his two-year contract as president.
Ambassador Rugwabiza told the Council that since its establishment in 2012 under the personal direction of Meron as president, the Mechanism had released more than ten masterminds of the genocide before the end of their sentences.33 Their release was unconditional. There was no way to ensure they would not re-engage in criminal activities. This would be the legacy of the Mechanism and its current president. In a grave admonishment, the ambassador told the Council that in allowing a secret and unaccountable process to develop to provide these early releases, it had strengthened the génocidaires in their desire to minimize and diminish the crime. She warned that some of the released génocidaires had regrouped and once again were propagating their genocide ideology. These were dangerous and unrepentant individuals who dismissed the factual basis of their criminal conspiracy entirely. Allowing them their freedom, the Mechanism had enabled an ongoing campaign of denial.34
Rugwabiza was not against the principle of early release but believed the purpose of incarceration was to rehabilitate individuals. She said, ‘There was no country on earth that had commuted more sentences, given early release to more convicts of genocide, than Rwanda.’ In Rwanda, the trials of more than a million perpetrators over nearly a decade had taken place in Gacaca courts. In Rwanda, early releases came only after confession and contrition. In these local courts, the remorse is shown required proof through action, and the accused sometimes revealed the location of buried bodies. These same rules must apply to high-profile international prisoners, she said. To be eligible for early release, a prisoner should provide a public acknowledgment of guilt, public support for peace projects, and public apology to victims, or victim restitution. A lack of consideration of the gravity of the crime, and a failure to consider the absence of remorse, was to blame for these early releases. While the Mechanism released génocidaires, it had failed in its other main task. It had not apprehended or prosecuted a single genocide fugitive – also a part of its mandate from the Council.
That afternoon the Council held a secret and informal meeting to discuss the matter.35 The Council membership was divided over the issue, and a compromise decision allowed the eighty-seven-year-old judge six further months in office. In the course of those six months, Meron approved the early release of one more unrepentant génocidaire, a former military officer, Aloys Simba, thereby ignoring the strongest objections from the government of Rwanda. Simba had been convicted at the ICTR for the crime of genocide and extermination, arrested while hiding out in Senegal in November 2001. Four years later, he was sentenced to twenty-five years in prison. He walked free on 19 January 2019, having served eighteen years in international custody.
And so, when international visitors go to Murambi, one of six national genocide memorial sites, they may not realize how their governments connived in the early release of a man who on 21 April 1994 handed out weapons to militia surrounding the technical college there, how having recruited and trained Interahamwe he directed the massacre of thousands of Tutsi families who had sought shelter. His orders were to get rid of ‘this filth.’ At Murambi, there were an estimated 50,000 people murdered.
After the genocide was over in November 1994, the Council, following its duty to punish the crime under the 1948 Genocide Convention, had carried the legal and financial burden of proving the guilt of the perpetrators. The Council had provided the means needed to defend the accused and had established a tribunal that found them guilty for their part in a campaign of extermination. It had developed as a historical fact the 1994 genocide of the Tutsi.
Now, this same international judicial system, established to take the high-level perpetrators out of circulation, had created a legal process that seemed explicitly designed to set these perpetrators free at the first opportunity, ignoring the commitment under the Genocide Convention to punish the perpetrators of the crime properly.
The prisoners released were individuals who had relentlessly challenged the historical facts that formed the basis for their convictions and, with some success, had duped unwary journalists who seemed incapable of recognizing their lies, fooled by their disinformation and fake news. In setting them free, the Mechanism had enabled their ongoing campaign.36
The harm to survivors was incalculable. For them, genocide is a crime with no end.
1 Criminal Tribunals (MICT) was unable to provide an exact date.
2 ICTR-99-52, Prosecutor C. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgement and Sentence, 3 December 2003.
3 MICT-13-37-ES.1. - the decision for the early release of Ferdinand Nahimana, 0045/1.
4 They are: Jean-Paul Akayesu, Théoneste Bagosora, Sylvestre Gacumbitsi, Jean Kambanda, Jean de Dieu Kamuhanda, Mikaeli Muhimana, Yussuf Munyakazi, Alfred Musema, Hassan Ngeze, Eliézer Niyitegeka, Tharcisse Renzaho and Laurent Semanza.
5 This is specified in the agreement between the UN and the government of Mali dated 12 February 1999, which reads: ‘Standard Minimum Rules for the Treatment of Prisoners approved by ECOSOC resolutions 663 C (XXIV) of 31 July 1957 and 2067 (LXII) of 13 May 1977, the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment adopted by General Assembly resolution 43/173 of 9 December 1988, and the Basic Principles Principles for the Treatment of Prisoners adopted by General Assembly resolution 45/111 of 14 December 1990’.
6 Judge Meron, Public redacted version of the 22 September 2016 decision of the president of the early release of Ferdinand Nahimana, MICT-13-37-ES.1.
7 The three lawyers are: Jean-Marie Biju-Duval, Diana Ellis QC and Joanna Evans.
8 Jessica M. Kelder, Barbora Holá and Joris van Wijk, ‘Rehabilitation and Early Release of Perpetrators of International Crimes: A Case Study of the ICTY and ICTR’, International Criminal Law Review, 14, 2014, 1177–1203.
9 ‘Men Behind Rwandan Genocide Languish in Mali Prison’, Capital News FM, 6 April 2014, Bamako.
10 Ferdinand Nahimana, Rwanda: Les virages ratés, Éditions Source du Nil, 2007; Ferdinand Nahimava, Le Combat pour la vérité, Éditions Source du Nil, 2011.
11 Ferdinand Nahimana, ‘Réponse de Ferdinand Nahimana à Jean-Baptiste Nkuliyingoma’, France-Rwanda Tribune, 11 March 2012.
12 Robin Philpot, Rwanda and the New Scramble for Africa: From Tragedy to Useful Imperial Fiction, Montreal: Baraka Books, 2013.
13 For a detailed legal argument see Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition, Oxford: Oxford University Press, 2017, 235.
14 ICTR-99-52-A, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze.
15 Gregory S. Gordon, Atrocity Speech Law Foundation, Fragmentation, Fruition.
16 Bill Berkeley, ‘Judgement Day’, Washington Post, 11 October 1998.
17 ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-I, Judgment, 2 September 1998, in particular paras 692 (re: crimes of humanity of rape and other inhuman acts), 731 (re: genocide) and 687 (re: torture).
18 Pamela Shipman and Lauren Rumble, ‘Neglected Challenges: The Humanitarian Responsibility to Protect’, in OCHA, The Shame of War: Sexual Violence Against Women and Girls in Conflict, Integrated Regional Information Networks (IRIN), 2007, 115.
19 Medina Haeri and Nadine Puechguirbal, ‘From Helplessness to Agency: Examining the Plurality of Women’s Experiences in Armed Conflict’, International Review of the Red Cross, 92: 877, March 2010.
20 UN Security Council resolution 1966, 22 December 2010.
21 The speed with which the Security Council wanted to close the tribunals influenced the creation of the Mechanism. There were numerous delays in the completion deadlines set by the Security Council and so, in resolution 1966 – to put further pressure on the ICTR and the ICTY to finalise their work – it was decided the Mechanism would start its operations before the tribunals closed. As a result, the Arusha branch commenced functioning on 1 July 2012 and The Hague branch began its operations on 1 July 2013.
22 Roisin Mulgrew, ‘Releasing International Prisoners’, in Martine Herzog-Evans (ed.), Offender Release and Supervision: The Role of Courts and the Use of Discretion, Nijmegen: Wolf Legal Publishers, 2014, 21–51.
23 UN Security Council resolution 955, 8 November 1994.
24 ‘There shall only be pardon or commutation of sentence if the President of the International Tribunal for Rwanda, in consultation with the judges, so decides on the basis of the interests of justice and the general principles of law.’
25 See Mulgrew, ‘Releasing International Prisoners’, note 36, Rule 150 MICT RPE; para 7, MICT PDER.
26 Dr Roisin Mulgrew, assistant professor in law, Faculty of Social Sciences, Nottingham University.
27 Bisengimana, President’s Decision, Public Redacted version, MICT-12-07, 11.12.12.
28 New Zealand from New York to Wellington, ‘Security Council: The establishment of a criminal tribunal for Rwanda’, 26 October 1994, Ministry of Foreign Affairs, Official Diplomatic Reporting, Volume 5, documents presented to Rwandan government, April 2019.
29 Chris McGreal, ‘Rwanda appalled at chance of early release for genocide criminal’, Guardian, 6 June 2018.
30 Jina Moore, ‘Betraying justice for Rwanda’s genocide survivors’, Nation, 9 July 2018.
31 ‘Judge who freed 10 genocide convicts seeks new UN contract’, KT Press, 29 January 2018.
32 UN Finance Committee figures.
33 The ten released were: Ferdinand Nahimana, Emmanuel Rukundo, Alphonse Nteziryayo, Gerard Ntakirutimana, Innocent Sagahutu, Paul Bisengimana, Omar Serushago, Tharcisse Muvunyi, Juvénal Rugambarara, Michel
34 UN Security Council, 8278 meeting, 6 June 2018, S/PV./8278.
35 The non-permanent Security Council members were Germany, Indonesia, South Africa, Domincan Republic, Belgium, Côte d’Ivoire, Equatorial Guinea, Kuwait, Peru and Poland.
36 UN Security Council, 8278 meeting, 6 June 2018, S/PV./8278.