[1] See, In Memory of the Acquitted and victims of selective justice and impunity (modernghana.com) by Chief Charles A. Taku.
Today, 6 April, is 30 years since the Rwandan Patriotic Front (RPF) shot down the plane carrying two Hutu Presidents, Juvenal Habyarimana of Rwanda and Cyprien Ntaryamira of Burundi, killing them and the plane’s crew members. These assassinations was the event which triggered the killings of Tutsis, Hutus and Twas throughout Rwanda in 1994, as the RPF – which had invaded from Uganda in 1990 – continued its military advances, culminating in its control of Kigali in July, 1994.
In November 1994, after the independent Commission of Experts investigated and reported on grave violations of international humanitarian law in Rwanda, the UN Security Council, in UN Security Resolution 955, established the International Criminal Tribunal for Rwanda (ICTR). Its objective was to prosecute persons responsible for serious violations of international humanitarian law committed by Rwandan citizens in Rwanda and in neighboring countries, on both sides of the conflict from 1 January – 31 December 1994. Rwanda was the only country which opposed the Resolution and China abstained (UNSC, 3453rd session).
The ICTR selectively investigated and prosecuted only Hutu defendants; no members of the RPF and no Tutsis were prosecuted. It completed its work in 2015, and was replaced by the International Residual Mechanism for the Criminal Tribunals (IRMCT or MICT) which continues to function today.
On 5 April 2024, the IRMCT President, Prosecutor and Registrar (’IRMCT Principals’) issued a statement to commemorate the “30 years since the start of the 1994 Genocide against the Tutsi in Rwanda.” The statement recalls the Appeals Chamber decision in June 2006, which took judicial notice, under ICTR Rule 94, of the Rwandan genocide. The Appeals Chamber concluded, at paragraph 35, that “[t]he fact of the Rwandan genocide is a part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge.’” This holding was strongly contested by the Defence teams in Arusha, but was the cornerstone of the Prosecution’s theory.
The “fact” of the Tutsi-only genocide has continued to dominate Rwanda’s propaganda about what happened thirty years ago. It has been reflected in Rwanda’s genocide laws, its prosecution and punishment of “genocide deniers,” its political imprisonment of its opponents, its campaigns against Hutus in the diaspora and its continued egregious human rights abuses.
In the IRMCT Principals’ statement, dated 5 April 2024, it certainly appears as if they have adopted and given their imprimatur to the RPF’s false narrative of 1994 and its policies of criminalizing the Hutus, while shielding the RPF from prosecution. The other truths about what happened in 1994 are collateral damage and they are conveniently buried.
One of these forgotten truths is the crimes of the RPF in 1994, including its systematic killings of Hutus, which were reported in the Gersony Report. The Report, prepared by a UNHCR team led by Robert Gersony, found systematic killings of Hutus by the RPF’s army, the Rwandan Patriotic Army (RPA). Gersony briefed the UN Commission of Experts on Rwanda in October 1994. The Commission of Experts’ Report concluded that individuals from both sides perpetrated serious breaches of international humanitarian law.
When this evidence is coupled with the failure of the ICTR to prosecute any Tutsi or RPF member for crimes in 1994, one cannot help but ask: Isn’t this UN judicial body taking sides in the conflict in Rwanda in 1994? The IRMCT’s Statement strips away any pretense of judicial independence, and support for the principle of applying the rule of law to all.
This criticism of the IRMCT’s lack of judicial independence is not new: the ICTR prosecutions were selective justice, from the beginning. And, in June 2023, in her report to the Security Council, the IRMCT’s President referred to the “disturbing trend of genocide denial.” Allegations of “genocide denial” have been Rwanda’s justification for imprisonment, torture and killings of government opponents. Former political prisoner and opposition Presidential candidate, Victoire Ingabire Umuhoza, who dared to talk publicly about the two genocides – of the Hutus and Tutsis – was sentenced to a fifteen year prison term. The explicit wording of the statement confirms that the IRMCT is more concerned with consolidating a legacy of “victor’s justice” than a legacy of judicial fairness.
On the date of 6 April, the IRMCT Principals must commit to finishing the ICTR’s mandate, under Resolution 955. IRMCT should focus on the unfinished justice for the killings of Hutus, Tutsis and Twas by the RPF in 1994 and hold the RPF accountable for its crimes – for the 1st time – in an international tribunal. The IRMCT’s powers are conferred in Resolution 1966 (2010), which established the IRMCT and contains its Statute. It is true that the IRMCT Statute, Article 1(5) does not confer any power to issue new indictments, thus limiting any action to those which have been already issued by the ICTR. However, this section appears to contradict the IRMCT Statute, Article 1(1), referencing the ICTR Statute, which confers competence based on jurisdiction and is not limited by indictments. This legal issue needs to be addressed, but the point is – if there is a political will, the IRMCT Principals can seek clarification and/or amendment of its Statute from the Security Council. Finding a way to prosecute the RPF (who were never indicted) would be a fitting commemoration of the events of 1994.
On the date of 6 April, the IRMCT Principals should commit to ending the travesty of justice of the continued illegal detention of Hutu ICTR acquitted persons, and those who have completed their sentences. These include the seven men in the “safe house” in Niger –François-Xavier Nzuwonemeye, Prosper Mugiraneza, Protais Zigiranyirazo, Anatole Nsengiyumva, Alphonse Nteziryayo, André Ntagerura, and Innocent Sagahutu. These men are stateless, and are being “held hostage” by the inability of the IRMCT (whose predecessor, the ICTR, adjudicated their cases and is responsible for them) to resolve the gross violations of their human rights. Two examples: (1) Dr André Ntagerura, whose 2004 acquittal was affirmed by the Appeals Chamber in 2006, has been forced to live in a “safe house” for two decades because no country, in which he will be safe, will accept him; (2) Major F.X. Nzuwonemeye, who was acquitted on appeal in 2014, has now completed four more years in ICTR custody (at the United Nations Detention Facility [UNDF] and in “safe houses”) than the twenty year sentence rendered by the Trial Chamber — for crimes for which he was acquitted.
As the IRMCT continues to take no significant actions to resolve these grievous violations of human rights, the date of 6 April will continue to commemorate this travesty of justice – which obliterates any legacy that the IRMCT would like to claim.
Lead Counsel Chief Charles A. Taku and Co-Counsel Beth S. Lyons represented Major F. X. Nzuwonemeye at trial and won (with their Defence team) an acquittal for him on appeal in February 2014 in the “Military II” case.
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