{{On 4 February 2013, the Appeals Chamber of the International Criminal Tribunal for Rwanda, composed of Judges Theodor Meron, presiding, Patrick Robinson, Liu Daqun, Andrésia Vaz, and Bakhtiyar Tuzmukhamedov, delivered the judgement in the case of Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor.}}

The Trial Chamber II of the Tribunal convicted Mugenzi and Mugiraneza for conspiracy to commit genocide and sentenced each of them to a single sentence of 30 years of imprisonment. Mugenzi and Mugiraneza appealed against their respective convictions and sentences.

The Appeals Chamber reversed Mugenzi’s and Mugiraneza’s convictions for conspiracy to commit genocide and direct and public incitement to commit genocide due to errors in the Trial Chamber’s assessment of circumstantial evidence.

Accordingly, the Appeals Chamber entered a verdict of acquittal as to Mugenzi and Mugiraneza.

Systematically, the ICTR Appeal Chamber has acquitted the mastermind of the genocide against Tutsi;

Indeed, all mastermind of the genocide against Tutsi (Col. Theoneste Bagososora, Gen. Gratien Kabiligi, Col. Anatole Nsengiumva and Major Aloys Ntabakuze) Bizimungu Casimir, Jerome Bicamumpaka and recently Justin Mugenzi and Prosper Mugiraneza were found “not guilty” of all counts charging conspiracy to commit genocide.

Even if all evidence demonstrate the existence of a conspiracy to commit genocide among the members of the 1994 Government and ex-FAR senior Officers, the ICTR Appeals Chamber concluded that “Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond reasonable doubt that the (…) accused conspired amongst themselves, or with others to commit genocide before it unfolded on 7 April 1994”.

What is the motivation behind the formula often used by the appeals chamber “on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt”? What is the hidden agenda and who is behind the agenda?

It would have been reasonable to find, on the basis of the presented evidence by the Prosecutor, that the accused had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power”, to disseminate ethnic hatred against the Tutsi; a reasonable Trier of facts could not conclude that the only reasonable inference is that the Appeals Chamber is not satisfied beyond reasonable doubt.

Turning now to the elements underpinning the planning and conspiracy, there are facts, such as meetings which characterize the planning of the genocide, their affiliation with certain clandestine organizations, 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 many cases before ICTR and view them together in the legal context of conspiracy to commit genocide:

– In 1992 the high-ranking officers define Tutsi as the enemy, “a step towards a criminal conspiracy”.

The Appeals Chamber concluded 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”.

– Bagosora was intent by the end of 1992 on preparing the “apocalypse”; the Chamber, however, did not find the evidence supporting this allegation credible, and it therefore has no probative value in establishing Bagosora’s role in a conspiracy.

– Meetings Before 6 April 1994; For instance Kabiligi participated in a meeting in February 1994 in Ruhengeri with local military commanders to inform them of a plan to commit genocide; 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; and also participated in a rally in Gisenyi prefecture, where they described the enemy as Tutsis;

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.

-The Preparation and Use of Lists; lists of Tutsi were prepared and subsequently used during the killings evidences prior planning.

In the case Bagosora and Nsengiyumva, the appeals 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.

The Chamber was not satisfied, however, that these lists were prepared or maintained with the intent to kill Tutsi civilians.

The Creation, Arming and Training of Civilian Militias; civilians were armed and trained and later participated in the killings; 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.

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.

-{{Clandestine Organisations}} (Zero Network, AMASASU and Death Squads) and RTLM; some accused were members of clandestine organisations, such as the Zero Network , AMASASU and death squads, their participation 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.

In the case of Bagosora and Nsengiyumva, 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.

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.

-{{Death Squards}}; the appeals 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 Appeals Chamber it’s self considered that it cannot exclude that there were in fact plans prior to 6 April to commit genocide in Rwanda, there are certain indications in the evidence of a prior plan or conspiracy to perpetrate genocide.

All those elements (the preparation of lists, civil-defence plans-arming civilians, a program of hatred…) set up by the government and the army were used to facilitate killings.

When viewed against the backdrop of the targeted killings and massive slaughter perpetrated by civilian and military against Tutsi between April and July 1994 as well as earlier cycles of violence, it is understandable why for the Appeal Chamber this evidence is not taken as prior conspiracy to commit genocide.

The Prosecution has clearly identified clandestine Organizations (Zero Network, AMASASU and Death Squads) and RTLM, their membership, proven connection between their activities and the Accused, but systematically the Chamber was not satisfied that the Accused played a significant role in the creation of those organizations.

In it’s decisions, the ICTR Appeals Chamber shows once again it’s effort to deny the genocide of its substance; in fact a genocide always supposes the existence of a plan to destroy in whole or in part, a targeted group.

How can the Appeals Chamber recognize the genocide against Tutsi when the master planners are acquitted?

What is visible is that the Appeals Chamber is afraid to confirm the planning of the genocide against the Tutsi; how two chambers of the same jurisdiction lead to opposite conclusions? Who’s Afraid of the existence of complicity to commit genocide? Individuals? States?

We can already imagine that the Appeals Chamber will decide in the same direction in the pending case of Pauline Nyiramasuhuko.

The decisions of the Appeals Chamber on conspiracy to commit genocide are a denial of justice as it is the last instance of the international criminal tribunal for Rwanda.

More importantly, acting lightly, the Appeals Chamber is playing the game of the master planner of genocide using the insignificant formula of not being satisfied beyond a reasonable doubt.

By a meaningless formula, the Appeals Chamber acquitted the worst “genocidaires” the world has ever known.

Author Diogene Bideri (Phd) is Researcher and Lawyer

National Commission for the Fight against Genocide