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.
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.
For updates click homepage here