Punishing Genocide: The Bagosora Case

It was considered a huge step towards the attainment of international justice. Perhaps in time, this week’s convictions of Bagosora, Ntabakuze and Nsengiyumva of the International Criminal Tribunal of Rwanda will come to sit alongside an assortment of other historic decisions as essential judicial acts. It may well come to be seen as one of the most important decisions since the Nuremberg verdicts of the late 1940s.

The tribunal noted through the somber tones of the Norwegian presiding judge Erik Møse that Colonel Théoneste Bagosora, as the highest authority in the Rwandan Ministry of Defence, was responsible for the murder of Prime Minister Agathe Uwilingiyimana and a host of fellow officials that warned the globe that a final Tutsi solution was being implemented. For that much, he received a life sentence for genocide, crimes against humanity and war crimes.

Bagosora had been in a position of control as chief official within the ministry, being the powerful Director of Cabinet. The trail of culpability also extended to the murder of ten Belgian peacekeepers, all of whom were disarmed before being massacred. The critical participation of the army at all stages of the genocide was also noted as an important factor.

Life sentences were also meted out to Major Aloys Ntabakuze, commander of the Para Commado Battalion, and Colonel Anatole Nsengiyumva, commander of the Operational Sector of Gisenyi. General Gratien Kabiligi, head of the military operations bureau (G-3) was the only figure to be acquitted, having had a secure alibi as the massacres were taking place. Ntabakuze had rampaged through Kabeza, Nyanza Hill and Kigali at the helm of his elite battalion, while Nsengiyumva set to work in parishes and universities. Both had showed a distaste for the Tutsi academics and the mandarin officials to be found at Mudende University and the L’Institut Africain et Mauricien de Statistiques et d’Economie.

The decision has been a long time in coming, which may have raised a few questions for various advocates (justice delayed is often justice denied). Proceedings commenced in April 2002 and were disrupted by the retirement of a judge and the non-reelection of another. The trial had to be renewed in another chamber in June 2003 with a revised bench. When it was finished, much paper had been expended (30,000 pages of transcripts plus 4,500 pages of final submissions). The decision itself is daunting, running into hundreds of pages.

When one has finished digesting the enormity of it, a few key points will be taken away. The cornerstone of the decisions was the feature of control. Bagosora and Kabiligi cited the familiar defense that neither had actual authority over a rampant military. Spontaneity, they argued, was order of the day. The desire for Hutu revenge was innate and impossible to stifle.

The defense worked in part for Kabiligi, but it was hardly the case for the enterprising directeur de cabinet. Bagosora had himself spoken as early as 1992 of preparations for an impending “apocalypse” against the Tutsis. But the jurists were even more convinced that the murders leading to the genocide “formed part of an organized military operation pursuant to orders from superior military authorities.”

Given the often insurmountable difficulties that present themselves to jurists and lawyers seeking the convictions of high officials for massive crimes, the decision will come as a relief. It did not set new law – it merely reaffirmed the premise that those in authority can never plead a blanket immunity before the international community.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, University of Cambridge.

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