THE decision Wednesday by the Appeals Chamber at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania to downgrade the sentences of three most prominent individuals responsible for the 1994 Genocide against the Tutsi has been greeted by surprise and shock by many at the tribunal as well as internationally.

Standing side by side in the court, Theoneste Bagosora, former Chief de Cabinet at the Ministry of Defence and Anatole Nsengiyumva, former army commander in Gisenyi in April 1994, heard Presiding Appeals Judge Meron reduce their sentences for genocide and crimes against humanity from life to 35 years and 15 years respectively. In the case of 61 year-old Nsengiyumva who was arrested in 1996, it meant he walked free having already served the necessary time in prison.

Both men, dressed in expensive suits with gold rimmed glasses, sat impassively for the most part as the hour-long appeal judgment was read to the chamber and a packed public gallery. Nsengiyumva’s defence team put forward 15 grounds for appeal, claiming both the original trial had included errors of law and failure by the prosecution to include crimes in the indictment for which he was later found guilty.

The appeal chamber overturned the majority of the original crimes he was found guilty of – including ordering the killings at Mudende University, Nyundo parish church and the mass slaughter in Bisesero at the end of June 1994 after Nsengiyumva argued he was not responsible for acts carried out by militias he said he had no control over. He was still held responsible for the killings in Gisenyi in April 1994 as the superior military officer.

Bagosora unsuccessfully argued as one of his six grounds of appeal that he was not in control of the Rwandan military in early April 1994 or had effective control over them. His third ground of appeal, that attacks on civilians were instigated by ‘clandestine’ networks or other unnamed military groups, was also dismissed by the judges.

The five appeal judges disagreed among themselves on several aspects of Bagosora’s case, with one or two dissenting from the final judgment on many individual points. Reversing the findings of the original trial, they found Bagosora not to have ordered the killing of the 10 Belgian peacekeepers, but still upheld his responsibility for not protecting those of the UNAMIR troops still alive when he reached Camp Kigali where they were being held. All were later murdered.

The appeal judges decided Bagosora, even if he did not order particular killings at roadblocks or of prominent individuals, was still responsible given his superior military position, for failing to stop the killings.

After the verdict, Nsengiyumva was surrounded by defence lawyers and well-wishers congratulating him on his release. Bagosora cut a far more isolated figure, left on his own having looked both nervous and emotional during the later stages of the hearing and re-sentencing. Previously the same day, Dominique Ntawukulilyayo, 69, former sub prefect of Gisagara in Butare, also had his sentence cut from 25 to 20 years by the appeals chamber. The original court decision that he substantially aided and abetted the killing of thousands of civilians at Kabuye Hill was upheld.

The appeal chamber judges substantially reduced original trial sentences – despite reminding the accused they were responsible for genocide, crimes against humanity (extermination and persecution) and serious violations of article 3 of the Geneva Convention – the most heinous crimes imaginable. Judge Meron told Nsengiyumva that he remained convicted of ‘extremely serious crimes’ before reducing his tariff to 15 years. The result caused some members of the prosecution team at the tribunal to express both shock and bewilderment.

With all cases bar four now at the appeal stage, there is some trepidation among survivors that sentences passed at the original trials will continue to be downgraded. This would point either to the original trial judges failing to interpret evidence and sentencing guidelines correctly, or that the appeals court is seeking actively to stamp its own ideas on cases.

The Military 1 trial, which included Bagosora and Nsengiyumva, took six years to complete from its start in April 2002 until its conclusion in December 2008, though the appeal chamber reversed nearly all its decisions in the case of Nsengiyumva and many of Bagosora’s, finding original trial judgments to have been ‘in error.’ The Military 1 trial also released Gratien Kabiligi and sentenced Aloys Ntabakuze to life imprisonment – though this sentence is still to be challenged on appeal.

A constant problem for the prosecution team has been trying to match the exceptionally high burden of proof that the ICTR requires for a conviction. Unlike the Holocaust, where documentary evidence was abundant, there is a lack of written evidence on the Rwanda Genocide and witness testimony has more easily been dismissed, contested or found uncorroborated. The appeals court would seem to be raising the burden of proof to a new higher level, while diminishing sentences even when the most serious crime of genocide stands proven. The lack of unity in decisions between the five appeal judges on many individual points was also noticeable – with two judges dissenting from Nsengiyumva’s sentence decision. This lack of clear, cohesive understanding between trial judges and appeal judges among themselves on points of law and their own guidelines makes understanding the rationale for their decisions that much more difficult – for both lawyers and laity.

As Nsengiyumva has been granted his freedom, he will join several others who have been released by the ICTR and who currently still live in Arusha. Andre Ntagerura, Casimir Bizimungu, Jerome Bicamumpaka, Gratien Kabiligi, and Protais Zigiranyirazo are all awaiting visas to live in Europe, with Belgium the favoured destination – often to join families already there. However, European authorities seem highly reluctant to allow such individuals into their countries – with former transport minister Ntagerura, who attended the appeal, on Wednesday, to support the accused, having waited in vain since his release in 2004 for a visa. Such individuals now live in ‘state-less limbo’ at the UN’s expense in Arusha, and can be seen daily in hotels, cafes and restaurants here – or even out jogging.

While the verdicts, on Wednesday, were greeted with celebrations among the various defence teams, the decisions mean the ICTR is again under the judicial spotlight. In September, the Tribunal had its Mandate extended into 2014 by the UN Security Council. After 17 years in existence, it has held 70 trials, with 60 convictions and 10 acquittals. After the conclusion, next week, of the trials of former secretary-general of the MRND Mathieu Ngirumpatse and former Minister of the Interior Edouard Karemera, the focus for the ICTR will be on the appeals chamber as all those convicted seek to get sentences overturned or downgraded.

Most important, in some ways, is the current case of Pastor Jean-Bosco Uwinkindi. He is challenging in the appeals chamber a ruling that would transfer him to Rwanda for trial on charges of organizing the genocide of thousands of Tutsis at Kayenzi Church Nyamata, and in the locality. If the appeal chamber upholds this ruling, expected early 2012, it will set a precedent that could allow dozens of alleged high profile genocidaires, currently held in other countries such as Belgium, France, Scandinavia and the UK, to be extradited to stand trial in the country where they are accused of organising mass killing, rape and torture.

Bagosora will be 89 before his release, but survivors will take little comfort that for such a ringleader of the Genocide that cost one million lives and scared countless others, even this crime has had its sentence downgraded at the ICTR. In contrast, last week in the UK, a man found guilty of killing four children was warned by the judge that his life sentence for murder meant he would probably never be released so terrible were his crimes.

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