It is widely accepted that the downing of the government airplane carrying Rwandan President Juvénal Habyarimana and Burundian president Cyprien Ntaryamira on 6 April 1994 triggered the Rwandan genocide. All 12 people on board, including three French aircraft personnel, were killed.[2] Surprisingly despite the sudden death of two Presidents, no international investigation was conducted and the responsibility for the attack on the airplane is disputed to this day polarizing those who say Kagame was responsible and those who put the blame on hardline Hutu extremists. The event triggered a 100-day killing spree when some 800,000 to one million people lost their lives.

The largely accepted historical version concludes that the violence was halted by Kagame’s Tutsi-dominated, armed wing of the rebel Rwandan Patriotic Front (RPF). The RPF was created in 1987 formed by Tutsi refugees in Uganda, following the social revolution of 1959 and is today the country’s ruling party. The RPF declared victory over government forces in July 1994, which by then had largely fled Rwanda swelling the refugee camps in neighboring countries.

If the main allegation of the film is true, that there was no planned genocide on the part of the Hutu government in 1994, then how did this version of the conflict monopolize the media for the last 20 years? Furthermore what are the veiled consequences of this “untold” story?

Following the release of the British broadcaster’s documentary, the Rwandan government suspended BBC programming in Kinyarwanda, the country’s official language. The government also said that it will indict the BBC producers for “genocide denial”. A thriving Rwandan diaspora, clutch of journalists and academics, as well as public voices from the country, have sent open letters to the British broadcaster — some praising the BBC’s investigative work and some calling it “recklessly irresponsible”[3].

In response to the three-month concentrated killing spree, the UN established the ad hoc International Criminal Tribunal for Rwanda in November 1994 through United Nations Security Council Resolution 955. The tribunal was conceived to judge those responsible for the Rwandan genocide and other serious violations of international law in the country, or by its citizens in nearby states that occurred in 1994 between January 1 and December 31. After two decades of prosecuting suspects, and continual delays and extensions of the originally slated finishing date 1997, the tribunal was eventually closed down in November of this year.

Paul Kagame may be outraged today that the BBC documentary asks the question who committed the genocide, yet this very question was raised by International Crisis Group’s (ICG) evaluation of the Arusha Tribunal in its June 2001 report Justice Delayed. “With more than 800 employees, three trial chambers presided over by nine judges, and a budget of around 90 million US dollars, the performance of the ICTR is lamentable (…) Seven years on, the ICTR has still not been able to shed light on the design, mechanisms, chronology, organization and financing of the genocide, nor has it answered the key question: who committed the genocide?”, the report says.[4]

In 2001, the ICG predicted that the so-called “Military 1” trial of Théoneste Bagosora, the alleged mastermind of the Rwandan genocide together with three other top army commanders — Gratien Kabiligi, the former chief of military operations, Aloys Ntabakuze, the former head of Rwanda’s para-commandos and Gisenyi sector commander Anatole Nsengiyumva — promised to be “the most conclusive with regard to knowledge about the planning of the genocide and massacres”. It was appropriately dubbed the “big fish” trial.

The accused were fingered for extensive planning or conspiracy to commit genocide and other war crimes against the minority civilian Tutsi population. Their devious plot was allegedly planned prior to mass violence that was sparked by the assassinations of the two presidents on April 6, 1994. Eight years later the “big fish” were acquitted of planning genocide.

This was due to the evidence that surfaced at trial, providing an alternative explanation for the violence that swept Rwanda from April to July 1994, namely that the RPF’s military wing, the Rwandan Patriotic Army (RPA), was the main aggressor. As a result, all leaders of the Habyarimana government and military were found not guilty of long-term planning of genocide or any other crimes before the Presidents’ assassination, this means the mass violence was a reaction to the killing of the president not planned killing by a “genocidal government”.

Former Arusha Tribunal Lead Defense Counsel, Professor Peter Erlinder explains: “during the ICTR Bagosora military trial, I put thousands of pages of original UN documents into evidence that I was able to find in UN files that were not supposed to be released for 100 years. The UN had dozens of persons reporting daily from Kigali and other places in Rwanda and Dallaire (Roméo Dallaire then UNAMIR Commander) met regularly with Kagame. These documents tell a completely different story than Kagame and the RPF told about the four-year war and the 100 days of the “genocide”.[5]

Thus the Military-1 trial judgments found that the overall policies of Rwandan national army — the FAR officers — were completely consistent with those of an army defending the nation from an invading force.

However the conflict was wrongly described as a civil war in the UN resolution that created the tribunal, despite the evidence that surfaced pointing to a wider geopolitical conflict. Evidence in the Arusha Tribunal archives indicates that the RPF military wing invaded Rwanda from Uganda, for example.[6]

According to government and intelligence documents available today, observers on the ground understood that the RPF had established military superiority. The invasion and occupation of northern Rwanda that started on 1 October 1990 was a violation of the UN Charter, as well as a major human rights disaster, yet it led to no condemnation or action by the UN or other government. Before the 1994 attack, as early as February 1993, the RPF’s armed wing carried out a surprise assault that was stopped at the gates of Kigali only due to the presence of French and Zairian military advisors and support. One million people, however, were displaced.

By not acknowledging the aggression and thus the international nature of the war, in a period were Iraq’s invasion of Kuwait had prompted a harsh response, the ICTR has contributed to legitimizing a rebellion, the RPF’s, coming to power through arms.

The international nature of the invasion and the position of self-defense by the Rwandan national army and Intarahamwe militia on the ground are further sustained by the empirical work of two American academics, researchers Christian Davenport and Allan C. Stam, who catalogued events during the 100 days by times, places, perpetrators, victims, weapon type and actions. This “event catalogue” allowed them to identify patterns and conduct based on more rigorous statistical investigations.

While working with the ICTR, once their findings began to reveal a different story than the official version, the Arusha Prosecutor informed them they were “no longer interested in reconstructing a broad conception of what had taken place” as they wanted to “only focus on information directly related to people charged with crimes”. When Davenport and Stam asked the court to have the maps they had been working with that reconstructed day-by-day the frontline movements of fighting forces, to their great dismay, the prosecution claimed that the maps did not exist. Fortunately they had taken notes.[7] The lack of interest shown on the part of the prosecutor in trying to understand the broader picture of the patterns of violence of the conflict on the ground amounts to a breach of mandate.

How is it possible that after 20 years there is still no official historical version of the Rwandan genocide accepted by historians and journalists across the board?

Legal scholar Alexander Zahra finds the explanation in poor and simplistic historical research: in a 2003 review of English-language publications on the Rwandan genocide Zahra, signaling works such as Philip Goureveitch’s We Wish To Inform You That Tomorrow We Will Be Killed with Our Families, Alison Des Forges’s Leave None to Tell the Story and Mahmood Mamdani’s When Victims become Killers, Colonialism, Nativism, and the Genocide in Rwanda, he calls their accounts “naive, tendentious, and derivative, written in a judgmental or didactic style foreign to scholastic endeavors”. Zahra explains how they tend to “reduce national defense to criminal conspiracy, political disagreement to ‘tribal’ tension, and a war involving regular and irregular forces, to genocide”.[8]

Weak historical accounts, which do not hold up when confronted with factual analyses, but which are widely quoted, surely contribute to allowing for two versions of the tragic 1994 events to co-exist. Yet this historical decontextualization was also able to survive for 20 years due to a deliberate suppression of important documents and investigations.

Perhaps the most fact-oriented researcher on the Great Lakes region is investigative journalist Charles Onana. Rather than using secondary sources Onana’s sources are made up almost entirely on first hand testimonies and official documents. As early as 2002, Onana warned of the dangers of institutionalizing a fabricated history on the Rwandan genocide. Through a collection of first-hand interviews with the principal actors of the crisis, government and multilateral sources, intelligence reports, leaked correspondence, and more, he traces a journey through historical archives based on facts that have been, until very recently, buried by the cacophony of the ‘official’ version.

In 2002 Onana published The Secrets of the Rwandan Genocide, Investigations on the Mysteries of a President,[9] while Paul Kagame was being hailed by the international press as a hero for stopping the genocide, Onana accused him of having plotted the 6 April 1994 downing of the Presidential plane — the spark that lit the fires of the massacres. Kagame and the Rwandan state filed a defamation suit in Paris with the 17th Chamber of the Tribunal de Grande Instance (district court), but dropped the charges just 48 hours before the trial was set to start. Onana had accumulated 3,000 documents, as well as direct witnesses who had been on the ground during the tragedy, including UN personnel such as Colonel Luc Marchal, the Belgian commander of UNAMIR at the time, to testify at court sustaining the book’s findings.

“I want to first underline that I am neither a Hutu nor a Tutsi, I have friends in both camps and I have no personal interest in this affair. I am simply a professional who wanted to understand a tragedy, which turned the world upside down. I wanted to find out why this dossier had been covered up. I soon realized that Kagame had many things to hide. I spent a whole night with one of his intelligence agents, who was with him at Mulindi the evening of the attack against the plane and who reported to me in detail everything that happened, and the attitude of Kagame that evening. Kagame knows well that I have spoken to his closest former collaborators and ministers, and that everything I have said concerning this attack comes from first-hand sources” Onana said as early as 2002[10].

The ICTR lead council and professor at Portland State University, Tiphaine Dickson, presented the motion in court in February 1997, asking what the prosecutor’s office had already investigated on the shooting down of the plane, as it was such a key element in triggering subsequent events. The response by the prosecution at the time was adamant. “We did not investigate and we do not investigate things such as plane crashes,” said the prosecution. ICTR prosecutor’s attitude shifted, Dickson explains, from “placing the blame on the hardliner Hutus”, those who wanted to discard the 1993 Arusha Peace Accords “to saying that it was absolutely irrelevant”[11].

Dickson, in an interview commenting on the BBC documentary Rwanda’s Untold Story, notes that international criminal tribunals claim to provide justice, reconciliation and also to establish a historical record that safeguards against attempts of denial and revisionism. Yet Dickson argues that “the kind of history they wrote into our judgement … that’s the denial, that’s revisionism”. Her client’s right to a fair trial was impeded since today we know Australian lawyer Michael Hourigan had been investigating the downing of the plane in 1996 and had written a report. Dickson also lost 14 defense witnesses, who were massacred in the Congolese Tingi Tingi refugee camp in 1997.

When Hourigan was collecting damning evidence against Kagame pointing to him as the culprit of the presidential plane shooting, in 1997 Prosecutor Louise Arbour asked him to stop. He resigned. Years later, in 2006 Hourigan testified at the ICTR saying that he was proud of serving with the ICTR, but felt that he “could not work for judge Arbour when … she acted against the interest of the ICTR, the UN and the world community which we served”.[12]

When on the 1 March 2000 Canadian newspaper the National Post leaked extracts of the Hourigan report, 27 Arusha Tribunal detainees and their defense lawyers wrote an open letter to the UN Secretary General asking that the report be sent to Arusha so a fair trial can be held[13]. Yet in a juridical system that follows due process the search for exculpatory evidence — evidence favorable to the defendant — goes parallel with searching for incriminating evidence, and is a part of the prosecutor’s mandate and should not require suspect or defense mobilization.

Only in late 2006 was the Hourigan Report put into evidence during the Military-1 trial by the defense and was one of the factors eventually leading to acquittal because it helped demonstrate that the assassination of Habyarimana was not part of a “plan to commit genocide” by the national army of Rwanda. Historical documents are essential evidence for reconstructing the truth in trial proceedings. This withholding begs questions and also punches holes in the Arusha convictions.

In 2000 ICTR Prosecutor Carla del Ponte stated she had begun to collect evidence to prosecute Paul Kagame and his RPF military for assassinations and war crimes. In 2003 she was forced to resign. In the book Secrets of International Justice: Rigged Investigations on the Rwandan Genocide[14] del Ponte describes her dismissal from her job at the International Criminal Tribunal for Rwanda in 2003. She believes that her elimination was politically driven, principally by Bush administration advisors, as she was making headway in investigations into Kagame’s involvement in the presidential plane shooting. Del Ponte is on record as early as April 2000 saying that if it was proven that Kagame’s forces shot down the presidential plane then the entire Rwandan history would have to be rewritten.[15]

In a 2005, Onana published the papers of a conference he organized— Silence on an Attack: the Scandal of the Rwandan Genocide[16]. These early investigations have now garnered support. In 2006 French Judge Jean Louis Bruguière, applying the concept of universal jurisdiction, took up the plaintiff of the French widows of the airplane crew that had flown President Habyarimana, and has issued nine arrest warrants against some of Kagame’s closest allies. Spanish judge Andreu Merelles in 2008 issued 40 international arrest warrants against Kagame’s closest allies.

Onana’s more recent France in the midst of Rwandan Terror[17], published in April 2014, brings even more factual evidence to this unresolved assassination. The book investigates the “lost” cockpit voice recorder (black box of the Falcon 50), as well as the origins of the missiles which shot down the presidential plane, and the inconsistencies of a recent report hailed as an expert analysis.

Onana also delves in to the wider geopolitical implications in play at the time: a proxy war between French and US forces that he clearly maps out in his book France in the Midst of Rwandan Terror, as well as in previous publications. Kagame was Ugandan President Yoweri Museveni’s intelligence chief and was receiving training at Fort Leavenworth, Kansas under a US military training program when the RPF invaded Rwanda from Uganda in 1990. Many of the RPF’s soldiers were trained through this US-Ugandan military exchange program. During the crucial four years from 1990 to 1994, before the massacres occurred, each side pushed to play out their agenda: the French by backing the Habyarimana government and pushing for the implementation of the 1993 Arusha peace process; the US instead supporting the RPF’s military option as the means to resolve the Tutsi refugee problem. Following the massacres, while the much-criticized ‘Opération Turquoise’, a UN French-led military operation in Rwanda was on going, so were other operations less known such as the American ‘Support Hope’, British ‘Gabriel’ and Israeli ‘Interns for Hope’ operations.

Beyond documents being withheld at the UN and the ICTR to serve one version of the Rwandan events — such as the 1994 UNHCR Gersony report or the 2003 UN Mapping report that was only released in October 2010 listing crimes against the Hutus that could be qualified as genocide by Kagame’s RPF armed wing — there were also cases of outright forgery.

One such document often cited as proof of premeditated genocide on the part of the Habyarimana government is the Dallaire fax.

In an article that is repeatedly cited, The New Yorker magazine’s 1998 “The Genocide Fax,” Philip Gourevitch attempted to show that the UN leaders knew there would be a genocide. Then UNAMIR Commander Roméo Dallaire had explicitly warned them after obtaining trustworthy information from an informer, Jean-Pierre. The fax Gourevitch received was allegedly the answer from the UN Peace Keeping Operations New York office to General Dallaire’s genocide fax sent on 11 January 1994, which supposedly warned UN authorities of an imminent genocide in Rwanda. Gourevitch has never been formally questioned as to how and why he happened to receive the missing reply, and he has not volunteered the information. His “scoop” published in The New Yorker was released the very week that hearings were being held in Washington regarding the United States’ role in the Great Lakes region of Africa[18].

Yet in Secrets of International Justice: Rigged Investigations on the Rwandan Genocide, this response received by Gourevitch, as well as the original “genocide fax”, appear most likely to be two forgeries. The book explains how in 1995 an internal UN investigation was launched on the fax affair by then UN Secretary-General Boutros Boutros-Ghali‘s Special Representative to Rwanda, Secretary General Shaharyar Khan. The outcome of the investigation revealed there was no such fax sent. Subsequently the fax mysteriously reappeared in the UN archives one year after it was allegedly sent and what is more, in 2003 a ICTR defense lawyer asked to see the original “genocide fax,” but the UN claimed it was lost.

Arusha, Justice from the Other Side of the Looking Glass

“One side was proclaimed guilty as charged even before the International Criminal Tribunal for Rwanda (ICTR) was created”, explains John Laughland, author of A History of Political Trials from Charles the I to Saddam Hussein. “Since the ICTR prosecutes only Hutus it is a clear example of victors’ justice,” says Laughland. This presumption of guilt was then reinforced in 2006 when the Appeals Chamber of the ICTR instructed the Trial Chamber to “take judicial notice of the fact of genocide”.

The 2006 ICTR judicial notice[19] of genocide is controversial and according to some lawyers and academics illegal when the fact proposed for judicial notice (genocide) constitutes an element of the offence charged in the indictment.

What this meant in legal terms was that the ICTR put the occurrence of genocide beyond legal dispute because it meant that genocide against the Tutsis should be taken as established beyond any dispute and not requiring any proof[20]. The judicial consequence of this belief meant that the Hutus were blamed prior the trials as being the sole perpetrators of the heinous crimes, thus effectively jeopardizing an objective play of justice.

Rwandan historian Ferdinand Nahima talks about the stigmatization of the Habyarimana government that he experienced as early as 1992. Nahima travelled to Europe seeking a political solution to the RPF’s attacks that were being launched from Uganda. The aggression had been wreaking havoc in the country since 1990. “I will never forget the journalist from Libre Belgique newspaper, Marie-France Cros, who spoke at a press conference in Brussels”. Nahima recalls Cros insisting that the Hutus were exterminating Tutsi leaders in the administration and in state companies such as the Development Bank of Rwanda, “specifically Director General Augustin Maharangari, a Tutsi, who had been murdered”. Cros was “filled with such a fury against Hutus that she was blind to Maharangari, who was actually alive, in front of her and pleading with Emmanuel Ntezimana and myself for a peaceful solution to the conflict between the RPF and the Rwandan people,” Nahima writes.[21]

The first landmark conviction for genocide by the ICTR of a former head of state was the case of Jean Kambanda in 1998. Kambanda was the interim prime minister appointed on 8 April, after the power vacuum that followed the assassination of President Habyarimana. Kambanda was convicted without a trial. The conviction was used to obtain guilty verdicts in subsequent trials. However, Kambanda immediately withdrew his guilty plea, saying that it was made under duress. Because of the guilty plea there was no trial and no legal examination of the charges themselves.

Kambanda had been held incommunicado and in solitary confinement for nine months without a lawyer and was subsequently not granted the legal assistance of his choice. Instead Oliver Michael Inglis, a close friend of the ICTR prosecutor, was assigned his case. This lawyer only spoke English, no French, Kambanda’s language. Kambanda was told to write his own deposition. However, his lawyer admitted two years later that the deposition had not made it into the hands of the judges. The Christian Democrat International coalition (CDI) political advisor for Africa, Alain de Brouwer, wrote to then Prosecutor Carla del Ponte on 12 January 2001 that this document had been hidden (although it was Kambanda’s defense deposition) because it contradicted the confession, therefore effectively annulling it. The deposition was once again ignored when he appealed and his conviction was confirmed in 2001.

Kambanda revealed how two policemen hired as investigators by the ICTR to extract a confession from him tortured him psychologically. Kambanda also feared for the security of his family. One of these policemen, Canadian Pierre Duclos, has already been charged with perjury and fabrication of false testimony in Canada but was hired by the ICTR.

Did the cases brought to trial fare better in following due process ?

A complaint was also filed in 1998 at the ICTR against Duclos for acts of torture against another Arusha detainee General Kabiligi.

On 2 September 1998, the International Criminal Tribunal for Rwanda issued the world’s first conviction for the crime of genocide. Jean-Paul Akayesu was convicted of genocide and crimes against humanity for acts he engaged in and oversaw while mayor of the Rwandan town of Taba, in southwest of Kigali.

The trial, however, had established that the defendant did not have an extremist background and fought against the Interahamwe hardline Hutu militia at least until the 18 of April 1994. The defense argued that even after that date he did not change his stance. No material evidence was submitted, the events were reconstructed solely on the basis of witness testimony. He was also denied a lawyer of his choice. Yet another strike against the prosecution was an affidavit giving detailed information on fabricated testimonies used to condemn Akayesu. These testimonies were not cross checked or even taken into consideration during Akayesu’s appeal.

Working for ICTR prosecutor, André Siros remembers: “I participated in the investigation on Akayesu. I went to Taba with Dutch investigators to interview witnesses to seek evidence for the prosecution. Not only did we return empty-handed since witnesses had nothing to say or did not offer reliable testimony, but one of the interviewees proved to be an excellent potential witness for the defense, providing Akayesu’s facts and actions during the period which were very favorable. I was shocked to learn later that the prosecution had “discovered” new witnesses against Akayesu, then I remembered that investigators had been told that in Butare at that time anyone could hire the services of a brigade of six false witnesses for 25 USD.”[22]

There was no functioning office in Arusha to collect victims’ complaints and most testimonies were instead found through intermediaries. Belgium-based Center Against Impunity and Injustice in Rwanda (Le Centre de Lutte contre l’Impunité et l’Injustice au Rwanda) Director Joseph Matata investigated the false witness issue and came to the conclusion that the RPF regime in Rwanda put in place a system that recruits, trains, and pays witnesses. These paid ‘informants’ then go around both in Rwandan and foreign courts bearing false witness. These professional witnesses showed up numerous times in many trials. Matata and his center reported in detail this criminal behavior, publishing several records and reports on these “informers’ unions” as early as May 1996.

Vice Dean and Professor of Law at William & Mary Law School Nancy Combs in Fact-finding: The Uncertain Evidentiary Foundations of International Criminal Convictions, denounces severe fact-finding impediments that substantially impaired the tribunals’ ability to determine who did what to whom. Combs found that, on average, approximately 50 percent of witness testimony at the ICTR was seriously inconsistent with past written statements or in-court testimony. Yet instead of instituting proceedings for suspected perjury (false testimony) the ICTR Judges passed over many such instances, thus encouraging a culture of false testimony. Shifting testimonies were to be seen as natural to human beings and excusing inaccuracies or inconsistencies to such an extent that it set a dangerous legal precedent for future international criminal legislation.

“To question evidence was made to look like one was questioning victimhood”. This behavior according to Australian lawyer Alexander Zahar hinders the ability of international criminal courts to discover the truth. Zahar writes that in one of the cases, “André Rwamabuku was brought to trial on the basis of the testimony of five lying witnesses…both the prosecuting lawyers and the lying witness walked away from the disaster unscathed. The judges, captives of a juridical mindset, took no actions to correct the injustice.”[23]

The Arusha tribunal had many shortcomings — legal precedents — which are now used in other fora of international law such as the International Criminal Court (ICC). Its shortcomings reinforce so-called lawfare through a factless justice. The UN Security Council bias is built in the Rome Statute that created the ICC, making it prone to political influence of the five permanent members, just as the ad hoc international tribunals that preceded it.

According to international law researcher Riddhi Dasgupta, immunity from prosecution makes the ICC even less accountable to outside vigilance than Guantanamo Bay, whose courts are at least subjected to US legislation. Furthermore, he implies that the ICC is even less legitimate in regards to defendants’ rights since it accepts hearsay and anonymous testimony as evidence.

Defendants’ rights were severely curtailed in Arusha. At times, hearsay and anonymous testimonies were used as the sole evidence. Massive amounts of documents were withheld from the defense and judges. Closed hearings under the guise of witness protection measures became the norm much of the time, the detainees often did not have the right to the lawyer of their choice. Language barriers reached absurd levels, with up to six different versions of trial transcripts, versions that did not correspond to each other. “I am convinced that some defendants could have and should have been acquitted at trial or on appeal, just for this reason, Siros recalls”. Detainees wrote endless open letters calling for their rights to be respected.

In March 1998 the Arusha tribunal rejected an indictment submitted by the prosecution massing together 26 accused in one trial. Yet trials grouped up to five people by profession or region.

An overreliance on a few expert witnesses is also questionable. For example Alison des Forges was co-leader of a major international document published in 1993, Report of the International Commission of Investigation on Human Rights Violations in Rwanda since 1 October 1990, which was contested by Rwandan human rights organizations at the time for being highly biased against the Rwandan Government and protective of the RPF/A invaders: the investigative team had spent just two weeks investigating in the country and barley two hours in the RPF rebel controlled area; subsequently Des Forges testified as an expert witness in 22 trials at Arusha as well as in other international trials in Europe, the United States and Canada. A Canadian Judge deciding on the Rwandan Leon Mugesera case underlined that Des Forges testified “more in the quality of an activist than a historian” showing a “lack of rigor in the redaction of her report and an evident bias against Leon Mugesera”. Refusing to extradite Mugesera to Rwanda, the Canadian Judge underlined “no properly instructed tribunal in Canada could conclude that the disputed speech had been an incitement to murder, hatred or genocide.”[24]

Defense witnesses disappeared or were killed: perhaps the most gruesome example is in December 2005, when Juvenal Uwilingiyimana, a Hutu, and former minister of trade and commerce, was found floating in a canal in Brussels, naked, with his hands cut off. He had been in contact with ICTR Chief of Prosecutions Steven Rapp and two of his investigators, who were pressuring him to give false testimony for the prosecution at the ICTR, according to a letter he had sent to the President of the ICTR prior to his disappearance. In the letter to the President of the ICTR and to Rapp, he said that Rapp’s two Canadian investigators had threatened to kill him and cut his body in pieces unless he cooperated. He refused to do so and refused to meet with them again. Shortly after that letter was sent he was murdered. Again, a demand by defense counsel for the suspension of Rapp and the two Canadian investigators pending an investigation into their possible involvement was ignored.

Perhaps the most obvious erosion of defendants’ rights is the length of the Arusha trials, such periods of detention are incompatible with the presumption of innocence or with the right to a swift trial. For example, after the European Court of Human Rights for undue delay in putting an accused on trial condemned it, France ruled that four years was the maximum preventive detention for the worst crimes. By looking at the list of 12 people acquitted at Arusha and their respective years in detention one gets the feeling that something is seriously wrong: 12 people who were ultimately innocent spent an accumulative total of 115 years in prison in Arusha[25].

Furthermore the ordeal for the acquitted does not end once they have been exonerated. One defendant, Brigadier Gratien Kabiligi, had to return to court in France for the right to rejoin is family after being separated from them for 12 years. Kabiligi was arrested in Kenya in 1997 and acquitted in 2008. He won the case allowing him to return to his family in 2011 — France had refused to grant him a visa although he had been acquitted.

In 2001 the ICG wrote that the masterminds of the genocide have not yet been arrested for lack of evidence. Despite the enduring lack of evidence, a generalized witch hunt against Hutu’s has been unleashed, prompting ICTR defense lawyer Charles Taku to call the phenomena a “judicial genocide of the Hutus”.

As the tribunal drew to an end after 20 years it surprisingly decided to transfer some of the remaining cases to Rwanda. This raises serious doubt that the Hutu defendants will be given a fair trial in light of the climate of fear the country is steeped in when considering that in 2010 Rwandan Presidential candidate Victoire Ingabire was sentenced to 17 years in prison for asking where “the memorials to Hutu victims” could be found?

Many Hutus are tracked down for years, face numerous trials or are awaiting to be transferred to Rwanda, often on dubious charges. Others are stigmatized in mainstream media.

Hutu priests, scholars, journalists, historians, politicians are forced to file defamation suits against aggressive media campaigns that have already coined them as genocidaires (perpetrators of genocide) prior to any investigation or trial.

In 2011, former president Habyarimana’s wife Agathe and Rwandans Charles Twagira and Marcel Bivugabagabo filed a defamation suit against the film “Genocide in Rwanda, Killers Living Amongst Us?” by Manolo d’Arthuys. The TV series called “The Big Hunt” (La grande traque) presented a portrait of the world’s worst criminals. The former president’s wife and her sons interviews were cut short so many times in the editing that one had the impression they were are not allowed to finish a single sentence; the incriminating testimonies came from Rwandan prisoners sentenced to life; the alleged Hutu ‘criminals’ of the film were portrayed with target marks superimposed on them. Despite this clear breach of the presumption of innocence for anyone watching, the plaintiffs did not win the suit.

Others preceded and followed such as “These Perpetrators who Live amongst Us” by journalist Marianne Klaric broadcast in 2008 on Belgian TV RTBF, that forced the Rwandan priest Joseph Nsanzurwimo to file a defamation case. The Belgian TV was condemned for not respecting the presumption of innocence and ”a serious breach of journalistic ethics” due to poor investigation and fact-checking, yet the film can still be seen on YouTube. Recently, in December 2014, a Rwandan priest Wenceslas Munyeshyaka won a defamation case in France against a reportage called “Rwanda, Accused Priests” shown on French state television France 3.

One cannot help but ask the question: has Arusha’s inconsistencies created other victims, victims of international lawfare?

Perhaps the most urgent question raised by the BBC documentary according to San Francisco Bay Review journalist Ann Garrison is if US policymakers will actually take into account The Untold Story “before sending in the Marines?”[26] The FDLR have been asked to disarm and return to Rwanda by 2 January 2015 or face an attack by UN forces and the Congolese army.

Who exactly is the FDLR Hutu rebel group? Can they really be defined as a terrorist group?

Spanish, non-violent activist Juan Carreo, who was fingered as a financer of the FDLR by a 2009 UN report, laments the superficial reporting and smear campaign against him. “A report that considers all Hutu refugees in Congo as being genocidaires (perpetrators of genocide), when many were born after the 1994 genocide occurred, is misleading,” he says.

In 1997, Carreo held a 42-day hunger strike in front of the European Parliament to alert the world of the plight of Hutu refugees in Congo. He has been key in assisting the Spanish judiciary in its investigation into the murder of Spanish missionaries in Rwanda and the Congo.[27] Carreo also launched the Inter-Rwandan Dialogue initiative in hopes to build authentic reconciliation within Rwanda today.

“There is a reason that European Union policy has pin pointed the FDLR as the main culprits in eastern Congo, as its one way to avoid putting a finger on those who are really responsible for the war, namely the US and U.K. backed Ugandan and Rwandan rebel forces brining havoc in eastern Congo since 1996”, explains Juan Carreo[28]. The international community is asking these refugees to disarm, yet that would leave entire communities as prey to incurring rebel attacks in the region. International media turns a blind eye to the fact that the FDLR has repeatedly asked for dialogue with the Rwandan government to secure protection in exchange for disarmament since at least 2005. The Rwandan government has refused. If the only choice for Hutus is repatriation, possible imprisonment and torture, it is difficult to understand “what the international community expects,” says Carreo.

The refugees have reason to fear. In a letter to United Nations Refugee Agency (UNHCR) head Madame Ogata dated 6 October 1996, Archbishop Munzihirwa warned of the looming invasion of eastern Congo (then Zaire) by Ugandan and Rwandan soldiers. He was one of the few who had again and again pointed to the unresolved problems in the border regions of eastern Zaire. With the Hutu refugees unwanted by Rwanda and no longer welcome in Zaire a “new Palestinian problem in central Africa[29]” had come about, he warned. The refugees were bombed by Rwandan military in their refugee camps. It is estimated today that between 350,000 to 700,000 Hutu refugees died in the Congo in that time period, literally lost by the UNHCR who could no longer track them as they fled. On October 30, 1996 Archbishop Christophe Munzihirwa Mwene Ngabo was brutally murdered in the eastern Congolese town of Bukavu.

Munzihirwa’s warnings are still valid today…for the Hutu refugees, the danger has not passed.

Confidential documents reveal that the EU was aware that the FDLR rebel group was not a real threat to Rwanda’s stability at least since 2005[30], yet its official policy points to the opposite to this day.

What is the cost of recycling factual inaccuracies for 20 years thus institutionalizing a factless justice? The Nuremburg trial, which was over after one year, fulfilled its mandate by prosecuting those that brought war, the main aggressor. For the judges at Nuremburg, the primordial war crime was to start a war in the first place. The Arusha tribunal indicted 93 people in 20 years, and managed to avoid the main aggressor in all its cases, namely the RPF’s military wing, which invaded Rwanda heavily armed from Uganda since 1990. Robin Philpot, author of Rwanda and the New Scramble for Africa, calls the RPF’s military triumph a coup d’etat, and the case he makes for this is convincing for what happened on the ground in 1994.

Today in Rwanda the Hutu population fear to mourn their dead members during that tragic period to avoid being accused of the crime of genocide denial.

Social media responding to the BBC film gives us a sense of the relief many Rwandans feel as their suffering is finally acknowledged. The only way to reconstruct the historical reality is to allow everyone to speak their contradictory opinions. One social comment from Rwandan political analyst Justin Bahunga commenting on the BBC documentary: “I would like to reiterate that no one should ever play down the heinous nature and monstrosity of the crime of genocide but picking it as a credit card and using it as a political tool to silence critics, commit other crimes or using it for other personal interests is a cynical and abhorrent betrayal to our dead. This is why some of us have decided to come out at the risk of our own lives, to fight such cynicism as a sign of homage to the loved who have left us; relatives, friends, Tutsi, Hutu and Twa and to build a reconciled Rwanda for our children, where every Rwandan will be judged by his/her character not by her ethnic or regional affiliation.”[31]

By granting immunity to the RPF, which has occupied eastern Congo since 1996, the Arusha proceedings have left an iniquitous legacy beyond the cost of failed justice. There is one comment in the BBC documentary The Untold Story that is misleading. The film cites Belgian Great Lakes expert, Professor Philip Reyntjens, as saying that Bill Clinton, Tony Blair and their respective governments “should revisit their relation with Kagame ”, distancing themselves from a war criminal. Yet historical documents prove the US, U.K. and Ugandan-backed intervention in Rwanda was crucial, both in preparing the ground for the 1994 military takeover and the failure to stop the resulting violence. By ignoring the larger geopolitical implications of the region’s proxy wars the risk is that another untold story will bubble to the surface after a 20-year media hiatus — the ongoing genocide in Eastern Congo, raging unabated since 1996, not covered with any serious treatment.

Footnotes

[1]Watch the BBC documentary The Untold Story at http://vimeo.com/107867605

[2]The other people killed on the plane were Bernard Ciza, Burundian Minister of Public Works, Cyriaque Simbizi, Burundian Minister of Communication, General Deogratias Nsabimana, Chief of Staff of the Rwandan Defence Forces, Major Thaddée Bagaragaza, Colonel Elie Sagatwa, Juvénal Renaho, foreign affairs advisor to the Rwandan president, Emmanuel Akingeneye, personal physician to the Rwandan president.

[3]A harsh and not well-argued stance was taken by group of authors, journalists and academics led by Professor Linda Melvern who wrote an open letter which stated “broadcasting this documentary the BBC has been recklessly irresponsible” and that the program has “fuelled genocide denial” “emboldened the génocidaires, all their supporters and those who collaborate with them.” Stances such as these, one must admit, leave little space for open debate. Two responses to the Melvern letter by a Rwandan law scholar Charles Kambanda here http://normanpilon.com/2014/10/28/open-letter-to-the-bbc-on-rwanda-the-untold-story-by-charles-kambanda-global-research/ and Justin Bahunga here http://www.fdu-rwanda.com/en/english-rwanda-rwanda-untold-story-letter-of-mr-justin-bahunga-to-bbc/

[4]International Crisis Group, International Criminal Tribunal for Rwanda, Justice Delayed, 7 June 2001. p. 5

[5]Interview with Peter Erlinder, Professor of law at William Mitchell Law College in St Paul, Minnesota, Author of The Accidental GenocideHow UN didn t want to know about the facts, La Tribune Franco-Rwandaise 10 Feburary 2014 here http://www.france-rwanda.info/article-how-un-didn-t-want-you-to-know-facts-about-rwanda-genocide-122500981.html

[6]The archives of the Arusha tribunal do reveal new facts, material evidence that shows the aggressor was the: between the summer of 1993 and the assassination of President Habyarimana in April 1994, Kagame’s RPF established at least three weapons caches of 200-300 tons each, in preparation for the final offensive; the U.S. diplomatic communiqués confirm that the RPF, not President Habyarimana and his supporters, blocked the political settlement, which would have forced the RPF to share power and give up military superiority; facts concerning the assassination of Hutu leaders between 1991 and 1993; the shooting of the Presidential airplane; the crucial involvement of the RPF in the Interahamwe militia leadership has been evidenced. Cit. in Peter Erlinder, Preventing the falsification of history, An unintended consequence of ICTR Disclosure Requirements here http://www.tpirheritagedefense.org/papers/Peter_Erlinder_Preventing_the_Falsification_of_History.pdf

[7]Christian Davenport and Allan C. Stam, What Really Happened in Rwanda? October 06, 2009 at http://www.psmag.com/navigation/politics-and-law/what-really-happened-in-rwanda-3432/

[8]Alexander Zahar and Susan Rohol, The United Nations International Criminal Tribunal for Rwanda in Genocide at the Millenium, Samuel Totten editor, 2005. p 221

[9]Les Secrets du génocide rwandais: enquête sur les mystères d’un président (avec Déo Mushayidi), Éditions Duboiris, 2002.

[10]Charles Onana interview, American Credibility in Africa is at Stake in Executive Intelligence Review, volume 29, no. 40, October 18, 2002.

[11]Interview with Tiphaine Dickson, Taylor report, BBC Documentary: Selective impunity does not yield justice nor the grounds for reconciliation here http://www.radio4all.net/index.php/program/77550

[12]

[13]Patrick Mbeko, Le Canada dans les guerres en Afrique centrale, Génocides et pillages des ressources minières du Congo par le Rwanda interposé, Le Nègre Editeur, 2012. p 609

[14]Charles Onana, Les Secrets de la justice internationale: enquêtes truquées sur le génocide rwandais Duboiris, 2005.

[15]In an akward and frankly disturbing remark made by International Crisis Group in the 2001 Justice Delayed on page 9 they state “although the enquires into RPF crimes and the attack on the presidentil plane are unable to change the legal history of the genocide, they can certainly contribute to chaging its political history ”. No comment.

[16]Silence sur un attentat : le scandale du génocide rwandais, Actes du colloque, Avril 2005, Paris, Éditions Duboiris.

[17]Charles Onana, La France dans la terreur rwandaise, éditions Duboiris, 2014.

[18]Robin Philpot, What The New Yorker and The New York Times won’t tell you about , their so-called “Genocide Fax, January 17, 2014 here http://www.barakabooks.com/news/what-the-new-yorker-and-the-new-york-times-wont-tell-you-about-their-so-called-genocide-fax/

[19]Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date or the approximate time at sunset. Leaving aside the debate if or not genocide can be accepted as a judicial notice it seems strange and legally uninteresting that a court set up to try genocide charges for the first time in history should decide a priori not to prove/test it through substantive cases and irrefutable debates in court.

[20]John Laughland, A History of Political Trials from Charles the I to Saddam Hussein, Peter Lang Oxford, 2008. A chapter is on the Jean Kambanda case at the ICTR.

[21]Ferdinand Nahima, Rwanda. L’élite Hutu accusée here http://www.nahimana.info/index.php?id=29

[22]André Sirois, Les mauvais débuts du Tribunal international pour le Rwanda, Mondialisation.ca, 13 novembre 2014 here http://www.mondialisation.ca/les-mauvais-debuts-du-tribunal-international-pour-le-rwanda/5413802

[23]Alexander Zahar, The problem of false testimony at the International Criminal Tribunal for Rwanda herehttp://www.heritagetpirdefense.org/papers/Alexander_Zahar_The_problem_of_false_testimony_at_the_ICTR.pdf

[24]Ottawa Judgement 8 september 2003 Dossier A-316-01 reference 2003 CAF 325 cit. in Charles Onana, Les Secrets de la justice internationale: enquêtes truquées sur le génocide rwandais Duboiris, 2005. p. 256

[25]André Rwamakuba, Minister of Primary and Secondary Education, 9 years; Andre Ntagerura, Minister of Transport and Communications, 9 years; Former former Health minister Casmir Bizimungu, 12 years ; Minister of Foreign Affairs, Jérôme Bicamumpaka, 12 years; Minister of Trade & Industry, Justin Mugenzi 14 years; Brigadier Gratien Kabiligi, General in the Rwandan Armed, 12 years ; Commander of the Reconnaissance Battalion, François-Xavier Nzuwonemeye, 14 years; Mayor of the Mabanza commune, Ignace Bagilishema, 4 years; Jean Mpambara, Mayor commune of Rukara, 5 years ; Emmanuel Bagambiki , préfet of the region of Cyangugu, 8 years ; a catholic priest, Hormisdas Nsengimana, 7 year ; a businessman, brother of Agathe Kanzig (wife of the former President of Rwanda), Protais Zigiranyirazo 9 years.

[26]Ann Garrison, San Francisco Bay Review, Octber 27, 2014 here http://sfbayview.com/2014/10/will-us-policymakers-review-rwanda-the-untold-story-before-sending-in-the-marines/

[27]In 2008, he aided Spanish judge Fernando Andreu Merelles issued international arrest warrants for 40 leaders from the Rwandan Patriotic Front (RPF) on counts of ‘acts of genocide, crimes against humanity, war crimes and acts of terrorism.

[28]Juan Carreo Interview with Nicoletta Fagiolo, Mallorca, March 2014.

[29]Letter cit. in Patrick Mbeko, op.cit. p 209

[30]Charles Onana, Europe, Crimes et Censure au Congo, éditions Duboiris, 2012.

[31]Justin Bahunga, Rwanda the Untold Story, Letter of Mr Justin Bahunga to BBC, November 14, 2014 here http://www.fdu-rwanda.com/en/english-rwanda-rwanda-untold-story-letter-of-mr-justin-bahunga-to-bbc/