Rwanda: Conspiracy to Commit Genocide, Important Missing Puzzle Piece

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Rwanda: Conspiracy to Commit Genocide, Important Missing Puzzle Piece

The crime of “genocide” is defined in Articles II and III of the Convention on the Prevention and Punishment of the Crime of Genocide , which was adopted by “Resolution 260 (III) A” of the United Nations General Assembly on December 9th, 1948.

Article II describes two elements of the crime of genocide:

1) the mental element, meaning the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”,

and

2) the physical element which includes five acts described as follow:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Article III describes five punishable forms of the crime of genocide:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

The International Criminal Tribunal for Rwanda (ICTR) has a mandate to prosecute serious crimes committed in Rwanda from January 1st, 1994 to December 31st, 1994, including crimes of genocide, but also crimes of conspiracy to commit genocide.

However, up to date, the collection of evidence to establish the later crime remains unsolved puzzle for the Prosecutor of the ICTR as shown by judgments in the Military-I trial on December 18, 2008: The Prosecutor versus Theoneste Bagosora et al., Case No. ICTR-98-41-T.

With regard to the elements underpinning the allegation of planning and conspiracy, the ICTR concluded that “Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond reasonable doubt that the four Accused conspired amongst themselves, or with others to commit genocide before it unfolded on 7 April 1994”. (Case No. ICTR-98-41-T, Para. 2114).

Indeed, all four defendants (Col. Theoneste Bagsosora, Gen. Gratien Kabiligi, Col. Anatole Nsengiumva and Major Aloys Ntabakuze) were found “not guilty” of all counts charging conspiracy to commit genocide, based on the Chambers ruling that their actions prior to April 6, 1994 were based on war-time conditions, not planning to kill civilians or to carry out a genocide against Tutsi Rwandans.

Please find here additional valuable documentations with regard to this topic.

More details on how the ICTR reached this important conclusion can also be found in the following excerpts of Case No. ICTR-98-41-T, from p.504 to p.508.

“2098. Turning now to the elements underpinning the allegation of planning and conspiracy, the Prosecution acknowledges that its case is principally circumstantial. 2321 There are only a few alleged meetings which could be characterised as planning genocide. The allegations instead refer, among other things, to statements made by the Accused, their affiliation with certain clandestine organisations, general warnings, of which some were circulated publicly, that the Interahamwe or groups with the military were plotting assassinations and mass killings, and their role in the preparation of lists as well as the arming and training of civilians. Most of the components of the planning have been extensively considered in other parts of the judgment (III.2). However, the Chamber finds it useful to briefly recapitulate the
findings on the events, which the Prosecution has highlighted in its Closing Brief and oral submissions, and view them together in the legal context of an allegedconspiracy. 2322 The Chamber has nonetheless also taken into account the evidencerelated to the other events not specifically referred to by the Prosecution.

(i) The Enemy Commission
2099. The Prosecution submits that the ENI document, which defined the enemy in ethnic terms, was “a step towards a criminal conspiracy”. 2323 The Chamber has found that, from December 1991, Bagosora, Nsengiyumva, Ntabakuze and other high-ranking officers participated in a commission which produced the Definition of the Enemy document (III.2.2). The document was then circulated within the army in September 1992 and used by Ntabakuze during meetings with members of the Para Commando Battalion (III.2.4.1). The Chamber agrees that the over-emphasis on the Tutsi ethnicity in the document is troubling, but cannot conclude that the document or its circulation to soldiers in the Rwandan army in themselves evidenced a conspiracy to commit genocide. It can be viewed, however, as background to give context to the subsequent actions of Bagosora, Nsengiyumva and Ntabakuze.

(ii) The “Apocalypse”
2100. The Prosecution submits that Bagosora was intent by the end of 1992 on preparing the “apocalypse” based on an alleged statement to a member of the RPF delegation during a session of the Arusha Accords in 1992. 2324 The Chamber, however, did not find the evidence supporting this allegation credible (III.2.3), and it therefore has no probative value in establishing Bagosora’s role in a conspiracy.

(iii) Meetings Before 6 April 1994
2101. The Prosecution submits that Kabiligi participated in a meeting in February 1994 in Ruhengeri with local military commanders to inform them of a plan to commit genocide (III.2.4.4). 2325 Furthermore, it also points to evidence around the same time that Nsengiyumva and Bagosora met in Butare prefecture with other officials to draw up lists of Tutsis to kill (III.2.4.6) and also participated in a rally in Gisenyi prefecture, where they described the enemy as Tutsis (III.2.4.2). The Chamber however did not find the uncorroborated evidence supporting these allegations credible. Similarly, the Chamber was not convinced that Bagosora referred to the eliminaton of the Tutsis at the Senegalese dinner held on 4 April (III.2.4.5).

(iv) The Preparation and Use of Lists 2102. The Prosecution argues that the involvement of the Accused in the preparation of lists which were subsequently used during the killings evidences prior planning (III.2.5). 2326 The Chamber found that Nsengiyumva given his role as head of the military intelligence bureau (G-2) on the army staff would have been involved in the preparation of lists and that Bagosora in light of his position was likely aware of them. It also concluded that Ntabakuze made use of lists to arrest people in October 1990. It was not proven that Kabiligi was involved in this effort. The Chamber was not satisfied, however, that these lists were prepared or maintained with the intent to kill Tutsi civilians.

(v) The Creation, Arming and Training of Civilian Militias
2103. The Prosecution also contends that the Accused role in arming and training civilians, who later participated in the killings, and in particular the notes contained in Bagosora’s agenda related to these efforts, shows planning (III.2.6). 2327 The Chamber has found that Bagosora, Nsengiyumva and Kabiligi participated in varying degrees in the arming and training of civilians. It was not proven that Ntabakuze was involved in this effort. The entries in Bagosora’s agenda, as well as his explanations for them, demonstrate that he was actively involved in the military’s development and implementation of a civil defence system. Nsengiyumva and Kabiligi would have played a role as operational commanders in sectors were training was ongoing. However, when viewed in the context of the immediate aftermath of the RPF’s violation of the cease fire agreement, it does not necessarily show an intention to use the forces to commit genocide.

(vi) Jean-Pierre and the “Machiavellian Plan”
2104. The Prosecution contends that the information provided to UNAMIR by its informant Jean-Pierre concerning the activities of the Interahamwe as well as the anonymous letter detailing a “Machiavellian Plan” by certain members of the army to engage in mass killings further illustrates the existence of a conspiracy to commit genocide. 2328 As discussed in section III.2.6.3, the Prosecution’s reliance on this evidence is problematic since there are lingering questions concerning the reliability of this evidence and because it does not directly implicate the Accused. This evidence therefore has limited probative value in establishing the Accused’s role in a conspiracy.

(vii) Clandestine Organisations (Zero Network, AMASASU and Death Squads) and RTLM
2105. The Prosecution argues that the Accused’s participation in clandestine organisations, such as the Zero Network (III.2.7), AMASASU (III.2.8) and death squads (III.2.9), reflects their concerted action in furtherance of a plan to commit genocide as well as the existence of a group of some officers operating outside of normal chains of command to commit illegal acts. 2329 In particular, it points to the AMASASU letters which threaten targeted assassinations and mass killings. In its
Closing Brief, the Prosecution points to parallels in these letters and other writings of Bagosora and Nsengiyumva, in particular Nsengiyumva’s letter of 27 July 1992 to President Habyarimana, who was then also army chief of staff. 2330
2106. With respect to the parallels between Bagosora and Nsengiyumva’s writings and the sentiments expressed in the AMASASU letters, the Chamber concluded that this evidence created an inference that Bagosora and Nsengiyumva were behind the AMASASU documents and possibly part of a group of Rwandan army officers who shared these views. 2331 However, the available information concerning the existence of Zero Network and the AMASASU as well as the Accused’s participation in them was limited and to a large extent second-hand. The Chamber was therefore unable to conclude beyond reasonable doubt that the Accused were members of them.

2107. Turning to the death squads, the Chamber noted the considerable evidence pointing to their existence and role in killings before April 1994. Several sources also indicated to varying degrees that Bagosora, Nsengiyumva and Ntabakuze were members. However, this information was all second-hand and its description of the Accused’s activities was limited.

Therefore, the Chamber could not find beyond reasonable doubt that they were members of death squads. In addition, the mere fact that such groups existed and were engaged in criminal acts does not mean that it was preparing a genocide. The Prosecution has not clearly identified their membership or shown a proven connection between their activities and the Accused. Similarly, the Chamber was not satisfied that the Accused played a significant role in the creation or control of RTLM. Consequently, these elements carry limited weight in relation to the conspiracy.

(viii) Concluding Observations
2108. Having considered the elements mentioned by the Prosecution, discussed above, and elsewhere in the judgement, the Chamber cannot exclude that there were in fact plans prior to 6 April to commit genocide in Rwanda. As the Prosecution argues, there are certain indications in the evidence of a prior plan or conspiracy to perpetrate genocide as well as other politically motivated killings in Rwanda, which could have been triggered upon the resumption of hostilities between the government and the RPF or following some other significant event.

2109. For example, a cycle of ethnic violence against Tutsi civilians has often followed attacks by the RPF or earlier groups associated with Tutsis, such as Union Nationale Rwandaise party. After an attack by Tutsi combatants in December 1963, there were reprisal killings. Following the October 1990 RPF invasion, there were mass arrests as well as localised killings at the time and in subsequent years in several northern communes and the Bugesera region. Allegations were made that elements of the government and security forces failed to timely intervene or participated in these events.2332

2110. At the same time, there was also a campaign to secretly arm and train civilian militiamen and efforts to put in place a “civil defence” system made up of “resistance” groups (III.2.6.2). The Chamber found that Bagosora, Nsengiyumva and Kabiligi were involved in some of these efforts in varying degrees. In particular, the outlines of the core of the proposed civil defence system were recorded as notes in Bagosora’s agenda, during meetings at the Ministry of Defence in early 1993, after the RPF resumed hostilities and advanced towards Kigali.

Furthermore, lists primarily aimed at identifying suspected accomplices of the RPF and opponents of the Habyarimana regime or MRND party were prepared and maintained by the army (III.2.5). However, in the context of the ongoing war with the RPF, this evidence does not invariably show that the purpose of arming and training these civilians or the preparation of lists was to kill Tutsi civilians.

2111. After the death of President Habyarimana, these tools were clearly put to use to facilitate killings. When viewed against the backdrop of the targeted killings and massive slaughter perpetrated by civilian and military assailants between April and July 1994 as well as earlier cycles of violence, it is understandable why for many this evidence takes on new meaning and shows a prior conspiracy to commit genocide. Indeed, these preparations are completely consistent with a plan to commit genocide. However, they are also consistent with preparations for a political or military power struggle. The Chamber recalls that, when confronted with circumstantial evidence, it may only convict where it is the only reasonable inference. It cannot be excluded that the extended campaign of violence directed against Tutsis, as such, became an added or an altered component of these preparations. 2333

2112. Furthermore, the Chamber observes that the evidence in this case only implicates the Accused in varying degrees in these efforts. 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.

2113. Other or newly discovered information, subsequent trials or history may demonstrate a conspiracy involving the Accused prior to 6 April to commit genocide. This Chamber’s task, however, is narrowed by exacting standards of proof and procedure, the specific evidence on the record before it and its primary focus on the actions of the four Accused in this trial. In reaching its finding on conspiracy, the Chamber has considered the totality of the evidence, but a firm foundation cannot be constructed from fractured bricks.

2114. Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond reasonable doubt that the four Accused conspired amongst themselves, or with others to commit genocide before it unfolded on 7 April 1994.”.

Notes:
2321 Prosecution Closing Brief, para. 35 (“The inference to be drawn from the evidence is not that each of the accused sat in the same room at the same time and agreed to a plan, nor that such a plan consisted of a single course of equally-divided or unified conduct”).

2322 The Prosecution refers to alleged meetings held in Butotori. See Prosecution Closing Brief, para. 42. The Chamber admitted allegations about meetings there against Bagosora and Ntabakuze, but excluded these allegations with respect to Nsengiyumva based on lack of notice. See Decision on Bagosora Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC), 11 May 2007, paras. 70-72; Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 57-59; Decision on Nsengiyumva Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September 2006, paras. 43-45. As the Indictment’s are similarly worded, fairness requires that these allegations be excluded as to all Accused. In any event, the Chamber has raised concerns with the credibility of the underlying evidence in other parts of the judgement, and it would not have altered the conclusion on the conspiracy charge.

2323 Prosecution Closing Brief, paras. 35-36, 39; T. 1 June 2007 p. 38.

2324 Prosecution Closing Brief, para. 38.

2325 Prosecution Closing Brief, paras. 40-41. The Prosecution does not refer to the February 1994 Butare meeting in its final submissions on conspiracy.

2326 Prosecution Closing Brief, paras. 46-49.

2327 Prosecution Closing Brief, paras. 44-45, 54.

2328 Prosecution Closing Brief, paras. 52-53.

2329 Prosecution Closing Brief, paras. 37, 50-51; T. 1 June 2007 pp. 38-39. The Prosecution does not refer to death squads in its final submissions on conspiracy.

2330 Prosecution Exhibit 21 (Letter of 27 July 1992 from Nsengiyumva to the Rwandan Army Chief of Staff entitled “Mood of the Military and Civilians”). TheProsecution also referred to other letters written by Nsengiyumva which make reference to Ntabakuze, Kabiligi and Ferdinand Nahimana. See Prosecution Exhibit 18 (Letter of 15 December 1990); Prosecution Exhibit 25 (Letter of 24 February 1993).

2331 The Prosecution noted that it could not directly attribute the document to any of the Accused, but it nonetheless showed that elements of the Rwandan army were
involved in planning. See T. 1 June 2008 p. 39 (“Now, all of those elements, even though we don’t know the identity of the author, taken at face value, it indicates that within the Rwandan armed forces there’s a subset of individuals who have, for the — an unlawful purpose, organised or planned and intend to render their own form of justice by acting with the speed of lightning. The document itself can’t be directly attributed to the four Accused; they didn’t sign it, as far as we know. But it is a link in the chain of conspiracy that somebody is out there planning, somebody is moving in this direction. So, all that’s necessary later on is to create a link between that conspiracy and the contribution of the four Accused.”).

2332 For example, Alison Des Forges and Filip Reyntjens point to incidents such as the mass arrests in October 1990, the 1992 Bugesera massacre, the killing of Bigogwe Tutsis as well as other attacks. See Prosecution Exhibit 2A (Expert Report of Alison Des Forges), pp. 15-16, 24-25; Prosecution Exhibit 302 (Expert Report of Filip
Reyntjens).

2333 See Nahimana et al. Appeal Judgement, paras. 906, 910 (“The Appeals Chamber finds that, even if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only reasonable inference was that the Appellants had conspired together to commit genocide … There is no doubt, in the Appeals Chamber’s view, that the aforementioned factual findings are compatible with the existence of “a joint agenda” aiming at committing genocide.

However, it is not the only reasonable inference. A reasonable trier of fact could also find that these institutions had interacted to promote the ideology of “Hutu power” in the context of a political struggle between Hutu and Tutsi, or to disseminate ethnic hatred against the Tutsi without going as far as the destruction, in whole or in part, of that group.”).

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