Friday, 13 February 2009

Bagosora (Military I) Judgment Finally Available

The Rwanda Tribunal has finally issued the Trial Chamber judgment in the Military I (Bagosora et al.) case. It was posted on the Tribunal's website a few days ago: http://69.94.11.53/default.htm. This trial began in 2002, and involved individuals arrested in the mid-1990s. The proceedings themselves concluded in June 2007, and it took the Chamber another 20 months to issue its judgment. Do any readers of this blog know of a longer trial in the history of criminal justice? The judgment itself is 594 dense pages, which is probably close to a record too.
There has been much chatter on the internet about this case, because when the Chamber announced the verdict in December 2008 the summary of the judgment said the Prosecutor had failed to prove that the accused was involved in a conspiracy to commit genocide. Many took this to imply that there was, in fact, no genocide. Moreover, the defence relied heavily on suggestions that there was an alternative explanation for the Rwandan genocide, and that blame for much of the killing could be placed on the Rwandese Patriotic Front. It also charged that the Prosecutor’s strategy, directed against perpetrators of genocide rather than against the RPF for alleged atrocities, was a source of unfairness.
But these views find little comfort in the judgment, released a few days ago. The judgment is certainly not authority for the proposition that there was no plan to commit genocide in Rwanda. See para 2090: ‘At the outset, the Chamber emphasises that the question under consideration is not whether there was a plan or conspiracy to commit genocide in Rwanda. Rather, it is whether the Prosecution has proven beyond reasonable doubt based on the evidence in this case that the four Accused committed the crime of conspiracy.’
The conclusion, as I read the judgment, is that the Prosecutor failed to prove the genocidal conspiracy, and particularly the involvement of the accused in it, beyond a reasonable doubt. At para. 2111: ‘It is possible that some military or civilian authorities did intend these preparations as part of a plan to commit genocide. However, the Prosecution has not shown that the only reasonable inference based on the credible evidence in this trial was that this intention was shared by the Accused.’
Moreover, (para. 1998), ‘To the extent that the Defence’s alternative explanations aim to raise doubt about whether a genocide occurred in Rwanda, the submissions are without merit. A review of the evidence related to the crimes underpinning the charges amply demonstrates that the perpetrators acted with genocidal intent (IV.2.2). Leaving aside the particular facts in this case, it is clear that a genocide occurred. The Tribunal has convicted a high number of individuals in completed cases for genocide committed in various parts of the country. The Appeals Chamber has even concluded that the genocide in Rwanda in 1994 is a fact of common knowledge which there is no reasonable basis to dispute.’
I think the judgment also disposes of an argument that is frequently invoked, namely that the Tutsi provoked the genocide by shooting down the President’s plane. This has always struck me as preposterous and absurd, yet it returns again and again in the debates. The shooting down of the President’s plane is the basis of ongoing proceedings in France. These proceedings are misunderstood as addressing the ‘flip side’ of the genocide in Rwanda. I don’t even think that shooting down a plane comes within the jurisdiction of international criminal courts. In any event, the Trial Chamber, in Bagosora, writes: ‘Even assuming that the RPF were responsible, it would not have any bearing on the Accused’s criminal responsibility. The attacks for which they have been held responsible were organised military operations directed at civilians. There can be no justification for this even if the opposing military force commenced the hostilities.’ (at para. 1097)
As for the argument focusing on alleged RPF atrocities, the judgment says (at para. 2001): ‘In sum, the alternative explanations for the events have added relevant context to a few allegations against the Accused. For the most part, however, they are irrelevant to the core issues in this case, namely whether the Accused are responsible for the specific criminal allegations charged against them.’ Moreover (at para. 1999), ‘The Chamber fails to see how this would exculpate the Accused for their own alleged crimes… It is beyond the scope of Chamber’s task to evaluate the Prosecutor’s overall strategy.’

1 comment:

Barbara said...

I appreciate your comments. We are all still thinking about what the judgement says and why it was written the way it was. By the way, you missed my favorite part. Bagosora was convicted on the rape count.That was a huge victory for many of us, many of us worked very hard to secure the rape count. It was hard fought.

The prosecution can only do so much when you have a massive indictment and crime and are limited by the court to 82 witnesses. Many hard choices had to be made, because of that restriction.