The unexpected announcement that the génocidaire Ferdinand Nahimana was freed from prison under an ‘early release’ provision was met at first with incredulity and thoughts inevitably turned to survivors of the 1994 Genocide against the Tutsi and how they felt.

Nahimana was the chief propagandist of Hutu Power, a racist ideologue and the inspiration behind the hate-radio, RTLM. The architect of the vicious and relentless campaign against Tutsi waged over the airways, it was Nahimana who planned the fake news bulletins used to incite hatred and murder of Tutsi.

Nahimana was convicted of direct and public incitement to commit genocide and given a thirty-year sentence in what was called the Media Trial at the International Criminal Tribunal for Rwanda, a costly trial hailed as a landmark in the history of international justice.

The prosecution was led by none other than US lawyer, Stephen Rapp, who became United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice in the administration of President Barrack Obama.

"This is our Nuremberg”, he had said of the Media Trial. It was the first since the trials of the Nazis at the International Military Tribunal in Nuremberg in Germany in which journalists had stood in an international court room accused of using words to kill; it was the first since that of the Nazi propagandist Julius Streicher, notorious for his anti-Semitic journal Die Stürmer who although he did not directly participate in the Holocaust, in preaching his hatred was said to have infected the German mind and was found as culpable as those who had a direct hand in the extermination programme. Convicted of crimes against humanity he was executed.

The same day, December 5, 2016, another early release was announced, a Catholic priest who had walked free in November. Rukundo, a known racist since his early years in seminary, was a central figure in an extremist Hutu Power hierarchy in the Catholic Church and was convicted at the International Criminal Tribunal for having instigated, or aided and abetted soldiers, Interahamwe and armed civilians to kill Tutsi civilians in various places in the préfecture of Gitarama and was sentenced to 23 years in prison.

It seemed appropriate in the days afterwards to try to discover the procedure and criteria used to grant these men their freedom and this turned out to be the sole responsibility of one judge, Theodor Meron, the President of the International Residual Mechanism for Criminal Tribunals, which evolved from the International Criminal Tribunal for Rwanda (ICTR).

Usurping right of Rwandans

Not only did Judge Meron have a final say about early releases, it was Judge Meron who largely devised the rules under which this procedure operated.The original rules governing early release for Rwandan génocidaires were initially chosen by judges at the International Criminal Tribunal for Rwanda (ICTR), but for some reason Judge Meron changed these rules in June 2012.

In so doing, he removed the right of the Government of Rwanda to have any role at all. These disclosures will further damage the reputation of Judge Meron criticised for previous decisions in appeal hearings at the ICTR, his role in the reduction of sentences; indeed a series of judicial decisions taken by Judge Meron are now being questioned in several press reports.

To accompany the announcement that Nahimana and Rukundo were free, Judge Meron issued a signed report on each case dated December 5, 2016, and available from the website of the Mechanism.

These reports paint a glowing picture of each prisoner, describing them as ‘rehabilitated’.

Judge Meron, quoting from a series of classified reports from prison wardens and psychiatrists, describes Rukundo taking church services and counselling his fellow inmates to ‘cope with the burden of being in prison’ and encouraging them not to lose hope in the ‘face of harsh prison life’. Rukundo grows vegetables to improve the prison diet.

He urges other detainees to ‘reconcile themselves with others and with God because only reconciliation can help overcome a crisis’. Rukundo will ‘integrate’ back into society and a Bishop (whose name is obscured in the Judge Meron report) in a diocese (the name also obscured) was willing to ‘welcome him to the clergy’.

Nahimana is living ‘in perfect harmony’ with his prison inmates and the prison administration; a one-time representative of the Rwandan detainees, Nahimana is polite and disciplined.

He would certainly ‘reintegrate’ into society as someone ‘humble and courteous’. In his own petition for early release – supported by three lawyers – Nahimana says his aim is to work for ‘peace and reconciliation’ in Rwanda.

We need to consider the curious role of the government of Mali where a group of high-profile génocidaires is serving time in the Koulikoro prison and from where Nahimana and Rukundo were released.

Both the foreign and justice ministries of Mali wrote to the Mechanism of the ICTR concerning the releases, letters which remain classified. None of the correspondence which Judge Meron quotes is available.

The system is as unaccountable as it is questionable.

The case of the Malian law

The Rwandan génocidaires in the Koulikoro Prison are governed by the law in Mali and, according to the laws of Mali, the Rwandan convicts are eligible for early release when they have completed two-thirds of their sentences.

They are not entitled to release. This decision rests solely with the President of the Mechanism, currently Judge Meron, who must make it ‘on the basis of the interests of justice and the general principles of law’ and release should only be granted as a matter of discretion, ‘after considering the totality of the circumstances in each case’.

There are no dissenting voices. Two of the three judges in the Rukundo trial, petitioned by Judge Meron, advised him to keep Rukundo under lock and key, but their arguments are missing from Judge Meron’s report, airbrushed from history as though of little importance.

Judge Meron makes no mention that these men have yet to acknowledge the crimes for which they were convicted. In his own written arguments for release Nahimana reveals how he continues to dispute ‘his own responsibility in ‘these crimes’.

The two pleaded not guilty in their trials. Neither has retracted. Neither has offered help to the Office of the Prosecutor, a fact which Judge Meron considers a ‘neutral factor’ in his consideration on whether or not to grant early release.

No offer is forthcoming to make amends to the people of Rwanda. No apology to them. In these proceedings the survivors have no voice. Nor is there mention of upset or harm the releases may cause witnesses brave enough to have come forward in their trials.

As it currently stands, Theoneste Bagosora could walk free at any moment. And we will be none the wiser. The Mechanism will keep the decision under wraps for a few weeks and only when it deems it appropriate will the public be informed.

The calls for reform of the procedure used by the Mechanism to decide early release, pardons, and clemency appeals will be inevitable. The Mechanism is answerable to the Security Council.

It is the Council’s responsibility to ensure the procedure which is used to release génocidaires is accountable.

Linda Melvern is a British investigative journalist who has extensively researched and written on the circumstances of the 1994 genocide of the Tutsi. She is the author of two books on Rwanda; A people Betrayed and Conspiracy to Murder

Copyright: Linda Melvern