Time has the same effect on trial judgements rendered by the International Criminal Tribunal for Rwanda (ICTR) as acid on limestone. On December 14, 2011, the Appeals Chamber of the ICTR reduced Colonel Bagosora’s factual responsibility in the genocide to a minimum, and his life sentence to 35 years. After seventeen years of investigations and trials, the ICTR ends up with no mastermind behind the genocide.

By Thierry Cruvellier*

It took 14 years after its creation for the ICTR to render the judgement that had been from the start the most eagerly awaited and the most central to its work on the genocide of the Tutsis in Rwanda, between April and July 1994. On December 18, 2008, it found Colonel Théoneste Bagosora guilty of genocide, crimes against humanity and war crimes and sentenced him to life imprisonment. Since 1994, Bagosora had been the ‘number one suspect by default’ of the genocide. However, when it was issued, the judgement by the Trial Chamber appeared iconoclastic.

After hearing 242 witnesses, admitting some 1,600 exhibits, producing 30,000 pages of transcripts and receiving 4,500 pages of closing arguments by the parties, the trial judges wrote a decision that profoundly questioned the genocide in Rwanda as a carefully orchestrated crime. The 1992 reported warning by Bagosora that he was going to “prepare the apocalypse” came from two highly suspicious witnesses who contradicted themselves: Bagosora and others had played a role in the creation, arming and training of civil militias, but the judges could not conclude that “these efforts were directed at killing Tutsi civilians with the intention to commit genocide”; the organisation of civil defence was insufficient to claim conspiracy; the preparation of lists targeting Tutsis and members of the political opposition did “not show that the purpose of the lists was to identify Tutsis, as such, and to eliminate them”; there was “considerable evidence” of death-squad activity in Rwanda before April 1994 and several sources say that Bagosora was a member of them, yet the evidence was indirect, second-hand, proved nothing in legal terms, and did “not mean that [they were] preparing a genocide.”

Bagosora: guilty by inference
After the presidential plane was shot down on April 6, 1994, a wave of political assassinations marked the beginning of the massacres. There was no credible and reliable proof of Bagosora’s direct participation, the trial judges wrote. But he was found guilty by inference. Considered to be the person having authority over the army at the time, the order to attack could only have come from him, said the judges.

“The Prosecution has not presented any direct evidence that Bagosora…,” repeated the judges tirelessly, but the accused knew that the soldiers under his authority were killing and, therefore, he was responsible.
“The post of directeur de cabinet was the most senior one after that of the Minister in the Rwandan Ministry of Defence,” said the judges. “He would replace the Minister in his absence. This occurred in April 1994 when Augustin Bizimana, the Minister of Defence, was on official mission in Cameroon.” During the three days in which the minister was away, from 6-9 April, Bagosora exercised his authority. After 9 April, the minister of defence returned to the country and all the crimes allegedly committed by Bagosora after April 9 fell away, without exception. But the colonel had nevertheless been found guilty.

In its judgement, the trial chamber recalled that “when confronted with circumstantial evidence, it may only convict where it is the only reasonable inference.” Three years later, the Appeals Chamber turned this very argument against the trial judges. In 300 pages, it slashed the trial judgement so deeply that, seventeen years after it was created it would seem almost impossible to understand what’s the narrative of the genocide that has come out of the most important trial at the ICTR.

Because the Appeals judges found that Bagosora’s order or authorisation was not “the only reasonable inference” in the killings of April 7-9, the direct responsibility of Bagosora in the murders was annulled. What’s left? “The Appeals Chamber finds that Bagosora had sufficient knowledge of his subordinates’ criminal conduct in Kigali on 7, 8, and 9 April 1994 to trigger his duty as a superior to prevent their crimes.” Bagosora remains guilty as a superior who failed to prevent those killings as well as a number of massacres in different parts of Kigali, and the killings at roadblocks in the capital city.

Eighteen years after the genocide, the ICTR essentially concluded that “there is no finding or sufficient evidence that Bagosora ordered or authorised any of the killings for which he was found to bear superior responsibility.” He is solely held responsible for failing to prevent crimes committed by his subordinates over a period of 65 hours during which he had effective control. That’s why a majority of judges approved the reduction of his sentence. There was a genocide, yes, but it was brainless.

(*) A detailed analysis of the first instance judgment will soon be published in the DVD book of the film "Arusha from Arusha".