When, on November 28, the appeals judges in the Media trial overruled the convictions based on evidence prior to 1994—the start of the jurisdiction of the International Criminal Tribunal for Rwanda (ICTR)—they seriously undermined the foundation of the prosecutor's thesis regarding conspiracy to commit genocide. This decision may convince him to revise his strategy in the trials currently underway, but it falls too late for the Military trial, in which the ICTR is deliberating in the case of leading defendant Théoneste Bagosora. On December 3, 2003, the ICTR trial chamber ruled that there had been "a conspiracy to commit genocide" between the RTLM radio station, the Kangura newspaper and the Coalition for the Defense of the Republic (CDR). The judges were convinced on this point by the prosecutor, who cited hatefilled radio broadcasts and extremist newspaper publications prior to 1994. Despite the defense teams' protests throughout the trial, the trial chamber concluded that the crimes of conspiracy to commit genocide and direct and public incitement to commit genocide were crimes that happened over time "until the planned acts were committed" and that, since the genocide happened in 1994, the ICTR had jurisdiction to try these crimes.

Four years later, in a 528-page decision, the appeals judges have strictly interpreted the temporal jurisdiction of the Arusha tribunal. This judgment states, "In the opinion of the appeals chamber, [...] the framers of the Statute [of the tribunal] desired that the tribunal have jurisdiction to try an accused only if all the elements that must be established to render judgment on his responsibility existed in 1994." Thus, the appeals judges decided that "in the measure that the trial chamber based its findings of guilt on a criminal act that occurred before 1994, it lapsed into error".

RTLM: Nahimana pays alone

According to them, not only did the prosecutor fail to demonstrate the existence in 1994 of a conspiracy to commit genocide between RTLM, Kangura and the CDR, he also did not prove the existence of a similar plot between Ferdinand Nahimana and Jean-Bosco Barayagwiza, both accused of having founded RTLM. For the representative of the Rwandan government to the ICTR, Aloys Mutabingwa, this appeals judgment "is close to suggesting that the preparation of the genocide was made hand in hand and at the same time with the acts of genocide themselves".
With the appeals judgment, Barayagwiza is now sentenced only for the role he played within his party and Nahimana is paying alone for the radio broadcasts. The appeals judges concluded that Nahimana had authority over RTLM personnel to stop the inflammatory broadcasts after April 6, 1994, but that he did not use it to do so. As for the third defendant, Hassan Ngeze, he is now sentenced for having published three articles inciting genocide between January and April 1994. However, his conviction for the publication of the "Ten Commandments of Hutus", which appeared in Kangura before 1994, has been overruled. The sentences are now reduced: 30 years instead of life in prison for Nahimana, 32 instead of 35 years for Barayagawiza, and 35 years instead of life for Ngeze.

It will not be easy for the prosecutor to draw conclusions from this decision. This judgment comes after the closing arguments in the ICTR's most important trial, the so-called "Military I" trial in which the theory of conspiracy depends largely on a military commission report in which the primary defendant, Colonel Bagosora, participated in 1991, with two of his three co-accused. The prosecutor could, however, try to put things right in the trial of former MRND leaders, in which he seems to have made it a priority to prove that the genocide was planned within this party, the youth branch of which, the infamous Interahamwe, played a primary role in the genocide. Two transfers to France

On November 20, the ICTR decided to transfer to France two cases of Rwandans accused of participating in the 1994 genocide [IJT-72-78], Wenceslas Munyeshyaka and Laurent Bucyibaruta. They also tasked the prosecutor in Arusha with following the French procedures and reporting to the Chamber "every three months". Arusha appears to want to keep the third case of a Rwandan living in France—that of Dominique Ntawukuriryayo—despite the fact that it seems impossible to try him before the completion deadline of 2008. The appeals court of Paris authorized his departure to Arusha, but his lawyers—who fear that he will ultimately be transferred to Rwanda—lodged an appeal on November 16.