The recent encouraging news of the arrest in Germany of two of Rwanda’s suspected criminals, Ignace Murwanashyaka and Straton Musoni, overshadowed the latest development in the appeal chamber of the International Criminal Tribunal for Rwanda (ICTR). On November 16, the tribunal reversed a 20 year prison sentence and ordered the immediate release of Protais Zigiranyirazo (“Mr. Z”). Based on a finding of ‘serious errors’ in the first chamber’s handling of the defendant’s alibi, the decision immediately sparked a wave of protest and consternation in Rwanda and the Rwandan diaspora.
The release of a suspected war criminal will not create much disturbance in a country where convicted killers live side by side with their victims’ relatives. The community-based gacaca, a local justice mechanism, have tried hundreds of thousands cases. They have also allowed the release of thousands of perpetrators under a plea-bargaining scheme.
But Mr. Z is not your usual genocide suspect. He is largely considered one of its masterminds. Many feared him too much to pronounce his full name, for Mr. Z is the brother of Agathe Kanziga, wife of the former Rwandan president Juvénal Habyarimana.
Zigiranyirazo’s reputation as a radical extremist went beyond Rwanda’s borders. In 1993, he was expelled from the Université de Québec à Montréal – and then from Canada altogether – after being convicted of uttering death threats against Tutsi refugees in Montreal. He moved back to Rwanda, where he was already known as the head of the ‘Akazu’, an informal but powerful organization revolving around the former president’s wife, who controlled the ominous ‘Zero Network’ death squads.
The existence and sinister agenda of the ‘Zero Network’ death squads were revealed as early as 1992 in the Rwandan press and confirmed in various local and international fora throughout the years that led to the genocide. General Roméo Dallaire, the UN peacekeeping commander, sent a now-famous report to New York in January 1994 based on the very detailed information and warnings provided by Jean Pierre, one of several defectors of the ‘Zero Network’. Everything Dallaire’s informant told him became reality three months later, and close to a million human beings were slaughtered. Like all other defectors, Jean Pierre had mentioned ‘Mr. Z’ as one of the key actors in the preparations.
Today, Mr ‘Z’ is a free man. The Trial Chamber, because of serious procedural errors, had led to a finding that he is not guilty. The memories of thousands of Rwandans of the vicious anti-Tutsi roadblocks he had established in direct proximity of all his residences in Kigali and Gisenyi weigh little or nothing to the court.
It is useful to remember that the ICTR was established by the UN Security Council Resolution 955 with the dual objectives of accountability and deterrence on the one hand and reconciliation and peace on the other hand. In the words of Richard Goldstone, the Tribunal’s first prosecutor, the ICTR trial process is “an important means of promoting peace and reconciliation in Rwanda, providing catharsis to survivors.”
By clearing Protais Zigiranyirazo of any culpability, the appeal chamber arguably followed international standards of justice. The consequence of that decision, however, is not a simple mistrial. It is the acquittal of a man whose acts, though not properly documented by a prosecutor, are not easily forgotten in a country where genocide was committed in broad daylight.
How much consideration was given to the assessment of the impact on peace and reconciliation that the Tribunal is meant to serve? How locally relevant are the decisions of a transitional judicial body that applies rules and processes developed to address fundamentally different realities than that of a genocide? Most importantly, what are the implications of Mr. Z’s release for the very concept of Genocide Planning?
No planning = No genocide?
‘Mr. Z’ was reportedly still stunned by the appeal chamber’s decision when a news release co-signed by his lead defense attorney, Jean Philpot, celebrated the rejection, for the second time, of the charge againt him of genocide planning. The press release also calls for “the ICTR trials to be halted, ICTR convictions to be reviewed by an independent UN Commission, and the conditional release of detainees”.
Interestingly enough, Jean Philpot is the brother of no other than Robin Philpot, the Canadian politician who, in 2007, attracted intense media attention for repeatedly denying the 1994 genocide of the Tutsis.
For Jean Philpot, Peter Erlinder and others, the concept is quite simple: no planning = no intent = no genocide.
But the genocide deniers’ campaign goes beyond the ICTR trials. A small but very active group of academics, often with ties of some kind to the ICTR defense lawyers, does not miss an opportunity to propagate their revisionist views. In the words of Professor Gerald Caplan: “the deniers’ reach and influence has been spreading, metastasizing like a malignant cancer, thanks to the anarchy of the blogosphere and to the embrace of the deniers’ arguments by a small but influential number of left-wing, anti-American journals and websites. Google Rwanda and you will quite likely get a deniers’ rant featuring the tiny band of usual suspects.…”
Similarly, Oxford University’s Phil Clarck worries about the increasing influence of deniers in the form of “scholars pursuing the latest academic fads that revel in ‘alternative narratives’, no matter how spurious or morally questionable; ‘génocidaires’ seeking to deflect attention from their crimes; and critics of the current Rwandan government who try to connect alleged RPF crimes to unrelated concerns with its current policies.”
Despite the lack of evidence for their assertions and the extensive works of reputable scholars and organizations that amply documented the planning of the 1994 genocide, this group persists. Could we be witnessing their increasing influence over the ICTR? An increasing number of genocide survivors apparently think so.
International justice for the international community
“Arusha’s justice is not ours. It is yours. That Tribunal was created to cleanse your conscience”.
- Yolande Mukagasana, survivor of the genocide, November 18, 2009
Yolande lost her three children as well as her husband, brothers and sisters. She has devoted her life to supporting genocide survivors in Rwanda. She has seen and heard enough. Her cynicism can therefore be forgiven when she suggests that the ICTR should imprison the orphans and widows instead of the killers. “At least they will have three meals a day. At least they will have a shelter. At least they will get medical care,” Mukagasana writes.
International standards of justice certainly have their own merits. There is, however, room for much more thinking on their societal impact in a post-conflict context.
For several years, Rwandan genocide survivors have been accusing the ICTR of repeatedly neglecting and watering down their testimonies. Today, they are once again in dismay. They feel ignored and abandoned, blocked from appaearing before the ICTR's bench in Arusha, Tanzania, to tell the terrible truth. Arusha’s justice is not theirs if it considers Mr. Z an innocent man.
The ICTR has spent more than 1 billion dollars and completed less than 50 cases. With its profound detachment from Rwanda’s social realities, the tribunal could not be further from its claimed objective of contributing to national reconciliation.
Patrick Karuretwa is a Rwandan lawyer studying at Tufts University’s Fletcher School of Law and Diplomacy as its first ever LL.M./M.A.L.D. joint degree candidate.
Mr Martin Musinguzi and D. do a good job of highlighting some of the legal problems involved in Zigiranyirazo’s acquittal.(thank you for that) More could be said about the work of the prosecution in this case.
Mr Zaduk ‘s comment illustrates what is actually one of the core arguments of this article: the deliberate use of Mr Z’s (and Bagosora’s) case to attack the larger concept of genocide planning. This is also captured in the quoted statement of the Association of ICTR’s defense lawyers that calls for: “the ICTR trials to be halted, ICTR convictions to be reviewed by an independent UN Commission, and the conditional release of detainees”. Many other strange statements are regularly made by the members of this quasi-political organization that does not hesitate to refer to the Genocide against the Tutsi: “Clinton and Bush’s Great Rwanda Genocide cover-up”. To any genuine person who was in Rwanda during the years that led to the genocide (or those who followed those events), the idea that the genocide was a ‘spontaneous combustion” is just preposterous.But I guess, the targeted audience for this theory is precisely those who were not.What is truly ‘laughable’ here is Mr Zaduk’s comparison of the genocide against the Tutsi with the 1968 race riots in the US.Another important point made in the article is the calculated use of this theory by genocide deniers and suspected perpetrators to cast doubt over the reality of genocide or those responsible for it.So yes, it is fair to speak of political propaganda in this case. However, as the article suggests, it does not come from Rwanda.
In citing the errors made by the Trial Chamber in its assessment, Zigiranyirazo had the onus of proving how it abused its powers of assessment. Without this, the Trial Chamber’s decision should have been upheld.
The Appeals Chamber’s decision constitutes a miscarriage of justice especially as it is a final jurisdiction. For the victims of the genocide against the Tutsi, justice before the International Criminal Tribunal for Rwanda does not exist.
Even more serious, by acting lightly, the Appeals Chamber is playing the genocidaires’ game, and the fight against impunity is being eroded more. We must then ask ourselves, if Michel Bagaragaza(6), principal witness of the prosecution in this trial, will not benefit from this acquittal during the appeal, because the same causes produce the same effects.
The Protais Zigiranyirazo jurisprudence will have many judicial, psychological and political consequences. Cases in which Protais Zigiranyirazo will be cited will use the Appeals Chamber’s decision to minimize the role of the Akazu in the preparation and execution of the genocide against the Tutsi. Zigiranyirazo’s acquittal has set a precedent for on-going cases before national jurisdictions which will use it as a reference.
What remains is the review of the judgement as provided for in Article 120 of the ICTR’s Rules of Procedure and Evidence which stipulates that « Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor may make a motion to that Chamber for review of the judgement ».
After Protais Zigiranyirazo’s acquittal, witnesses have been coming spontaneously to give evidence before national authorities saying that they saw Protais Zigiranyirazo inciting people to massacres at the Nyabarongo bridge roadblock, at Kamuhanda, Runda, Murambi, Gatumba and at many other roadblocks.
Some prosecution witnesses were not able to give evidence and would like to come forward with new evidence.
It would not be superfluous to recall that even in refugee camps in Goma, Protais Zigiranyirazo led cleansing up operations in those camps by throwing those he suspected to be Tutsi into the « Lac vert », near Lake Kivu. To acquit a master planner of the Tutsi genocide is to falsify history and consequently rob the international justice of its raison d’être.Bideri Diogène, Phd
National Commission for the Fight against Genocide1 * Zigiranyirazo was born on the 2/2/1938 in Giciye District, Gisenyi Province. He is the brother-in-law of former President Juvenal Habyarimana. He occupied various posts under the Habyarimana regime. In his report: “the Network Zero, Destroyer of Democracy and Republic in Rwanda (1975-1994), Christophe Mfizi, former Director of the Rwandan information agency (ORINFOR), places Protais Zigiranyirazo at the head of the Squadron of Death.2 * About 2000 Tutsis had found refuge on Kesho hill, Rwili sector, Gaseke District, in the Gisenyi Province.3 * Akayesu judgement, par. 177.4 * Furundzija judgement, par. 375 * Akayesu judgement, par. 232.6 * Michel Bagaragaza is the half-brother of the accused; he pleaded guilty and was condemned to 8 years imprisonment on the 5th November 2009. He was condemned for complicity to genocide, particularly for the massacre on Kesho hill. In his testimony, He affirmed that Protais Zigiranyirazo brought help to the Interahamwe militia by putting members of the presidential guard and his personal escort at their disposal.
Indeed, witnesses called by Zigiranyirazo did not locate him in Kanombe during the time slot when he was seen at Kesho. This eliminated any reasonable possibility of the veracity of the alibi.
The Trial Chamber found the alibi’s evidence vague and inconclusive and concluded that it raised no doubt against the evidence given by the prosecution. Besides, Zigiranyirazo did not prove it was impossible to travel between Kanombe and Kesho Hill during the time slot for which he has no alibi. The trip could be covered by helicopter and it takes only 45 minutes.
Zigiranyirazo did neither prove that the Trial Chamber had committed an error when it decided that altogether, the elements of proof provided were decisive and crucial and that despite the alibi presented by the accused, those facts led to the conclusion of his guilt beyond all reasonable doubt.
II. A decision of the Appeals Chamber based errors of law and fact in the assessment of the Trial Chamber’s conclusions.
A. An unusual behavior from the Appeals ChamberAs has always been stressed the Appeals Chamber, the appeal’s procedure is not an opportunity for one party to see its case examined de novo. In this case, the Appeals Chamber goes against its own jurisprudence(3), by examining the substance of the appellant’s alibi, in particular by reviewing the questions which relate to the journey between Kigali and Gisenyi.
The Appeals Chamber disqualified prosecution witness BCW who would have sufficed to eliminate any reasonable possibility for Zigiranyirazo’s alibi to be true.B. A casual decision by the Appeals ChamberIn its constant jurisprudence, the Appeals Chamber has always said that in assessing whether a conclusion reached by the Trial Chamber is reasonable or not, it does not decide casually to change its factual(4) conclusions.
Hence, the Appeals Chamber will support to a certain extent the factual findings of the Trial Chamber in all circumstances(5).
In Zigiranyirazo’s case, the Appeals Chamber merely declares without proof, that the Trial Chamber erred in law and fact by a poor understanding of the principles of law, by not paying much attention to evidence and by misinterpreting the key testimony of the alibi.
The Trial Chamber sentenced him to 15 and 20 years of imprisonment for the Kesho(2) and Kiyovu massacres respectively. Zigiranyirazo appealed against this sentence and presented 19 grounds of appeal and requested for either a review of his sentence or a reduction of his penalty.
The Prosecution made one submission requesting for life imprisonment or an effective penalty of more than 20 years imprisonment. Zigiranyirazo’s appeal is based on a supposed error made by the Trial Chamber in the assessment of his alibi. The appellant declared that it was impossible for him to be in Kesho on 08/04/1994 and in Kanombe, near Kigali, at the same time. Similarly, he declared it was impossible to be in Rubaya on 12/04/1994 and at the Kiyovu roadblock at the same time.
The Chamber’s decision raises the serious problem of Arusha’s malfunction of justice. By a presumed error of law, the Appeals Chamber acquitted one of the key planners of the genocide against the Tutsi.
I.Presumed errors of law and fact to acquit a genocide perpetrator condemned by the Trial Chamber
A. False allegations of errors of law and factAccording to the appellant, the error of law in this case ensues from the way the Trial Chamber exercised its power in the assessment of his alibi. But, according to Article 24 1) of the ICTR’s Statutes, it is incumbent upon the appellant to first prove that an error on a question of law had invalidated the decision of the Trial Chamber and secondly, that the Trial Chamber had committed an error of fact
In his first ground of appeal, Zigiranyirazo maintains that the sentences imposed on him resulted from an erroneous assessment of his alibi. Zigiranyirazo claims that on 08/04/1994 when the Kesho Hill massacre was being perpetrated, he was in the residence of President Habyarimana in Kanombe, and that on 12/04/1994 he was in Rubaya and not at the Kiyovu roadblock in Kigali. According to him, the distance between Kigali and Gisenyi corroborates his alibi.
But several prosecution witnesses declared that Zigiranyirazo was present on Kesho Hill in Gisenyi prefecture on 08/04/1994, where he incited assailants to carry out attacks against Tutsi refugees and that on 12/04/1994 he was at the Kiyovu roadblock in Kigali where he was inciting people to massacre the Tutsis. Defence witnesses had declared that Protais Zigiranyirazo was at the bedside of his deceased brother-in-law. The Prosecutor had proved beyond reasonable doubt that the alleged facts were true.Nevertheless, before the Appeals Chamber, the Prosecution did not persevere in its efforts to convince the judges and limited itself to showing that the Trial Chamber had not committed errors in the assessment of Protais Zigiranyirazo’s alibi.
The Trial Chamber had deemed the prosecution witnesses’ testimonies consistent, detailed and credible. But, according to the Appeals Chamber, Zigiranyirazo’s alibi raises doubt on the prosecution witnesses.
This is where the Appeals Chamber’s decision shows arbitrariness where it takes up the cause of Zigiranyirazo by favouring his witnesses and ignoring those of the prosecution. We should recall that the witnesses called by Zigiranyirazo are all members of his family.
The Appeals Chamber thus exempted Zigiranyirazo from furnishing the double evidence that an error had been committed and that the error had occasioned a miscarriage of justice, as stipulated by Article 24 1) of the ICTR’s Statutes.
Mr Karuretwa's article has no connection with the case presented agains Mr Zigiranyirazo. It is apparent that he has no familiarity with the actual record of the trial but bases his opinion on suppositions based in propaganda by Mr Zigiranyirazo's political enemies, suppositions that evaporated when put to the test at his trial.
In the trial itself, he was acquitted of six of eight counts, including the broad conspiracy counts involving allegations about the Akazu and setting up the interahamwe. The trial chamber in fact could render no other verdict. The Prosecution's evidence in this regard was next to laughable.
The Appeals Chamber reversed the convictions on the remaining two counts on the basis essentially of serious misapprehension of the evidence which was overwhelmingly exculpatory.
No doubt a genocide occurred in Rwanda in 1994. But what has never been proven , in Mr Zigiranyirazo's case or in any other before the ICTR, was that it was the result of a Hutu conspiracy.
In April, 1968, in the United States there were race riots in virtually every major American city that were sparked by the assassination of Martin Luther king. Does anyone seriously suggest that these were all the result of some pre-planned conspiracy? I believe historians will ultimately decide that the Rwandan tragedy was a similar manifestation of spontaneuos combustion caused , i n the context of a bloody civil war, by yhe assasination of another leader. 15 years of trial before the ICTR have not come close to proving the contrary..Peter Zaduk
Toronto
Typical soft-core Genocide denial in the form of 'Relativization, Trivialization & Projection of Guilt'. It's not possible to say that there was no Genocide so let's just say that Rwandans 'killed each other'.
This is true with regard to genocide deniers as as to RPF lie propagandist networks.