More questions than answers
A year before
the scheduled end of the first instance trials, the International
Criminal Tribunal for Rwanda (ICTR) still has not succeeded in
reconstituting the scenario of the genocide committed against Tutsis in
1994. When, how, where and by whom the plan of the genocide was
prepared? There are still many questions which the prosecutor has not
yet answered in a way to convince the ICTR judges.
However, at the end of last December, the Tribunal signed one of its
great works in rendering its much awaited judgment in the Bagosora et
al. trial. The former cabinet director of the defence ministry, Colonel
Théoneste Bagosora, and two of his co-defendants were sentenced to life
in prison while another officer was acquitted. The three convicts, all
originally from Gisenyi, as was the former President Juvénal Habyarimana,
were convicted, to a certain extent, for the crimes of their
According to this judgment, Bagosora takes responsibility for the
assassination of the Prime Minister Agathe Uwilingiyimana, of the ten
Belgian peacekeepers, certain political leaders, as well as the
massacres of Tutsis in road blocks in Kigali and the region of Gisenyi.
But he was acquitted of the count of agreement in order to commit
genocide. Also, Constant Raphaël, Bagosora’s French lawyer, who knew the
fight was lost in advance, has something to be pleased in spite of this
lengthy sentence. “It is a questioning of the entire historiography of
Rwanda”, estimates the defence lawyer who always rejected the planning
The prosecutor is handicapped by a strict interpretation by the judges
of the temporal jurisdiction which goes from 1 January to 31 December
1994. According to the jurisprudence of the Tribunal, no conviction,
even for agreement in order to commit genocide, can be rendered on the
basis of facts prior to January 1994. The prosecutor explains in vain
that the agreement is a crime continuous in time: the judges require
that he prove the existence of this plot in 1994.
this failure, there remains for the prosecutor another occasion to prove
the agreement: the chaotic trial of three former leaders of the MRND,
Mathieu Ngirumpatse, Edouard Karemera and Joseph Nzirorera. So in the
Bagosora case, the prosecutor had tried to bring evidence of a plot
between military officials, in the MRND trial, he supports the existence
of an agreement between political leaders. But even then, even if the
Chamber is still to decide, many pieces of evidence presented are prior
to January 1994. As in the creation of the Interahamwe militia which,
according to the prosecution, proceeded this agreement.
planning is fundamental. If the ICTR does not manage to prove, it will
leave the door open to all the negationnists. According to the
Convention of 48 on genocide, planning is constitutive of the crime.
Already in a report from 2001, the organization International Crisis
Group (ICG) deplored the failure of the ICTR to shine light into the
plan of the genocide.