Rwanda Intends to Prosecute Bagambiki Following ICTR Acquittal

A couple of weeks ago, I discussed the ICTR’s acquittal of Andre Ntagerura and Emmanuel Bagambiki, two high-ranking Rwandan officials charged with genocide and crimes against humanity. Rwanda has now announced that it intends to prosecute Bagambiki, the former governor of Cyangugu, for crimes against humanity involving rape and sexual violence — charges that were not part of the ICTR case.

Rwanda’s decision to pursue the rape and sexual violence charges reflects the belief, shared by many, that the Office of the Prosecutor at the ICTR has not taken such gender crimes seriously enough. Here are some excerpts from a 2003 letter sent by the Coalition for Women’s Human Rights in Conflict Situations, an NGO with international memberhship, to Carla Del Ponte, the chief ICTR prosecutor:

As your term comes to an end, we believe that your four-year record as ICTR prosecutor shows no concrete commitment to effectively developing evidence to bring such charges, despite the longstanding and overwhelming proof of sexual violence during the 1994 Rwandan genocide. We believe that the failure to implement effective measures that would have enhanced to date, rather than undermined the serious investigation and prosecution of gender crimes, reflects a lack of political will to treat these crimes with the seriousness of other genocide-related crimes.

As you well know, during the Rwandan genocide, thousands of women were individually raped, gang-raped, raped with objects such as sharpened sticks or gun barrels, held in sexual slavery or sexually mutilated. Military and political leaders at the national and local levels, as well as heads of militias, encouraged or permitted killings and sexual violence to further their genocidal goals. They therefore bear responsibility for these abuses under international law.

[snip]

While we are heartened that over half the existing indictments charge rape, we note a number of disturbing developments during your tenure that are likely to exclude or jeopardize rape indictments, and which will ultimately result in a denial of justice to Rwandan rape victims. These include:

· A decline in the number of new indictments that contain sexual violence charges. Since 2001, there has been a notable reduction in the number of indictments for sexual violence crimes. Given the widespread sexual violence, we believe that the absence of sexual violence indictments is due not to an absence of the occurrence of sexual violence, but rather to a lack of political will to competently investigate and bring the charges.

[snip]

· The absence of an effective and long -term prosecution strategy that seeks to ensure that not only the scale of the sexual violence is represented in the OTP cases, but also a broad characterization of sexual violence crimes that acknowledges the range of sexual violence suffered by Rwandan women, for example, prosecution of sexual slavery (collective and individual) or rape as a form of torture.

· Diminishing the capacity of the investigations unit to seek sexual violence evidence. One of the major stumbling blocks to effective prosecution of sexual violence at the OTP is the lack of attention to this issue by the Investigations division. In particular, we believe that your disbanding of the Sexual Assault Team in the Investigations division of OTP in 2000 has corresponded to a significant decrease in attention to the collection of sexual violence evidence. The leadership in the investigations unit appears to have interpreted your disbanding of this team as a signal to diminish attention to this issue. We are also concerned that investigators continue to receive no training on interviewingmethodology for rape victims, and the majority of the investigators are male.

The Coalition singled out Del Ponte’s actions in Bagambiki’s case — promising to file rape and sexual violence charges, but never doing so — as a prime example of the OTP’s failings:

We remain particularly concerned about the Cyangugu case where the OTP possesses strong evidence of sexual violence and has publicly promised to bring rape charges, yet has still not done so. See Prosecutor’s Response to Application for Leave to File an Amicus Curae brief, May 8, 2001: “The Prosecutor advises that as soon as possible, she intends to file new indictments against accused Emmanuel Bagambiki and Samuel Imanishimwe containing rape charges.” Almost two years later, you have not fulfilled your promise and the case is poised to close. Rape victims whom we interviewed in Cyangugu in January 2003 feel betrayed by your disregard of them. After making them come forward to speak about their rapes and promising them that justice would be done, your inaction amounts to a blatant denial of justice.

The Rwandan government echoes those sentiments:

Mutabingwa said the initial indictment drafted by ICTR against Bagambiki was flawed because it lacked particular material.

“In particular the indictment excludes rape as a crime against humanity .The Government of Rwanda holds that such an omission is fatal and highly prejudicial,” stated the envoy.

Mutabingwa went on to blame the immediate former ICTR prosecutor of the tribunal, Carla Del Ponte of mishandling the case.

According to Mutabingwa, the Government of Rwanda is seized of the material in support of the charge of rape and sexual violence as a crime against humanity committed in Cyangugu.

Mutabingwa said a significant part of the material underscores the responsibility borne by Bagambiki as an individual and as a person in position of authority.

“It is highly prejudicial to ignore the vivid evidence available in Cyangugu to-date. Especially owing to the fact that some victims of rape and sexual violence are still suffering the pain inflicted by Bagambiki individually and in concert with others,” Mutabingwa said.

I agree completely with the Coalition’s general point about the OTP’s inadequate committment to prosecuting gender crimes. And there is no question that rape and sexual violence played an integral role in the 1994 genocide in Rwanda. As the ICTR said in Akayesu:

In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communical premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.

Despite all this, I’m troubled by Rwanda’s desire to prosecute Bagambiki following his unanimous acquittal by both the ICTR Trial Chamber and the ICTR Appeals Chamber. Although Rwanda has not revealed its evidence against Bagambiki, the amicus brief the Coalition submitted to the ICTR explains its theory of the case:

14. … In particular, the Indictments claim that the Defendants Ntagerura and Bagambiki, who had positions of authority in the government, planned the massacres against the Tutsi civilians in the Cyangugu prefecture, and that they directly participated in the training, instructing and arming of the military and para-military groups that committed the massacres. The Prosecutor also claims that subordinates of Bagambiki and Imanishimwe, who was a military commander, participated in the massacres against Tutsi civilians. All three Defendants are accused of giving orders to execute Tutsi civilians.

[snip]

15. Thus, the Defendants are charged with planning, ordering, and directly participating in the genocide that, according to the testimony of Witnesses LBI and LAM, included mass killing, rapes, enslavement and other sexual violence against Tutsi women. Moreover, the Defendants are charged with being responsible for the actions of their subordinates in carrying out the massacres. The Amici note that the evidence on record shows that these subordinates also raped and enslaved Tutsi women in the course of their killing for which the Prosecutor claims that the Defendants are criminally liable. Thus, the sexual violence to which the Witnesses testified is part of the same course of events for which the Defendants are being tried.

The Coalition’s theory, however, has a fatal flaw: the ICTR specifically held (1) that the prosecution had “failed to prove beyond reasonable doubt” that Bagambiki actively participated in the massacres; and (2) that Bagambiki could not be held responsible for the massacres, because the prosecution had failed to establish the existence of a superior-subordinate relationship between him and the soldiers who carried them out. If Bagambiki cannot be held responsible for the massacres directly or through command responsibility, he also cannot be held responsible for the sexual violence that accompanied those massacres on those theories.

It is possible, of course, that Rwanda has additional evidence against Bagambiki — evidence that strengthens the case for direct or command responsibility. But I think it’s fair to assume that a Rwandan court is unlikely to give Bagambiki a trial as fair as the one he received at the ICTR.

Here’s Amnesty International on Rwanda’s judicial system in 2000:

The standard of trials in Rwanda has varied greatly over time and across different parts of the country. While the first wave of genocide trials – from December 1996 into most of 1997 – were characterized by gross violations of international standards of fairness(4), the conduct of many trials improved from 1998 onwards: for example a greater proportion of defendants have had access to a defence lawyer; a larger number of defence as well as prosecution witnesses have testified in court; and judges have made a visible effort to demonstrate and exercise impartiality.

However, overall, a number of fundamental problems remain, stemming from the highly charged political context after the genocide, the overwhelming number of cases and the dramatic shortage of qualified and experienced judicial officials and lawyers. Among the main problems are the fact that defendants only benefit from legal assistance once their trial has been announced – they are not assisted by a lawyer in any of the pre-trial stages; incidents of pressure and intimidation on prosecution and defence witnesses are regularly reported; trials are repeatedly delayed; the process for appeals is often especially lengthy; and survivors of the genocide and families of victims have still not obtained the compensation which the state has promised them repeatedly. Feelings of dissatisfaction and frustration in the face of the perceived slow pace of trials have been expressed both by survivors of the genocide and by defendants.

Despite these dangers, Rwanda’s desire to prosecute Bagambiki has led to one positive development: the government has indicated that it will pass a law that will waive the death penalty for any perpetrator the ICTR transfers to it — a condition insisted upon by the ICTR.