Is ICTR’s Theodor Meron holding justice to ransom?

The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR ) on February 11 acquitted Gen. Augustin Ndindiliyimana and the former commander of the Reconnaissance Battalion, Maj. Francois -Xavier Nzuwonemeye, while Capt. Innocent Sagahutu, second-in-command of the Reconnaissance Battalion, had his sentence reduced from 20 to 15 years. Strangely enough, the verdict on the principal defendant, Gen. Augustin Bizimungu, whose case was severed from that of other defendants, was deferred with no explanation. It should be remembered that the Trial Chamber had sentenced him to 30 years in prison for genocide, crimes against humanity and war crimes. Why was this deferral ordered while the case was heard in a joint trial known as “Military II”? There is considerable evidence that this is a tactic geared towards pouring oil on troubled waters as it came amid the 20th commemoration of the Genocide against the Tutsi. Over the past years, the Appeals Chamber of ICTR, presided over by Judge Theodor Meron, has acquitted or reduced the sentences of defendants who had been found guilty of genocide, crimes against humanity and war crimes by Trial Chambers. It appears from several appeal decisions by Judge Meron that the legal reasoning thereof was insufficiently defensible and that such decisions aim at nothing less than neutralising bold decisions rendered by Trial Chambers. The inconsistency of appeal decisions by Judge Meron could already be noticed in 2009 with the acquittal of Protais Zigiranyirazo. He disqualified a prosecution witness BCW, whose testimony would be sufficient in itself to eliminate the reasonable possibility that the evidence of Zigiranyirazo’s alibi is true. In describing the time, Zigiranyirazo had claimed that he was in Kigali during the massacres that occurred at Kesho (Gisenyi) and in Kesho during the massacres that took place in Kigali. The panel presided over by Judge Meron turned its attention to the defendant’s nieces and nephews; President Juvenal Habyarimana’s sons and daughters, to hold that the evidence of the defendant’s alibi was true. However, Zigiranyirazo witnesses had not confirmed his presence at Kanombe in the time period during which he was seen at Kesho during the massacres of displaced Tutsi. This could have eliminated any reasonable possibility that the evidence of alibi is true. Similarly, there was no reason to doubt that Zigiranyirazo was able to travel between his village and Kigali within 45 minutes. Even more cynical is the reduction of the sentence of Col. Théoneste Bagosora and Col. Anatole Nsengiyumva, both of who had both been sentenced to life in prison for genocide, crimes against humanity and war crimes on the basis of command responsibility. Despite having held him criminally liable, Judge Meron reduced the sentence to 35 years in prison for Bagosora and to 15 years for Anatole Nsengiyumva. However, the severity of the charges against Bagosora and Nsengiyumva could not, under any circumstances, allow the Judge to order such a substantial reduction of sentence. Another emblematic trial is the one known as Government II, which included former Cabinet ministers Justin Mugenzi and Prosper Mugiraneza. The trial judge had ruled on the defendants’ liability based on the circumstances surrounding the Cabinet meeting of April 17, 1994, and their intent to incite people to massacre the Tutsi by participating in the ceremony that took place in Butare on April 19, 1994. The genocidal intent could be inferred from the role played by Mugenzi and Mugiraneza in removing Prefet Jean-Baptiste Habayrimana from office to trigger off the onslaught of large-scale massacres in Butare. This conclusion was backed up by the accussed’s participation in the swearing-in ceremony of the new prefet two days later. It should be recalled that Mugenzi gave his speech shortly before that of interim President Théodore Sindikubwabo. The defendants’ participation in these two successive events with tragic consequences (triggering the onslaught of massacres in Butare Prefecture) could only be justified by the two ministers’ adherence to the genocidal policy of the Interim Government. With the stroke of a pen , the panel presiding by Judge Meron quashed the Trial Chamber’s decision because, in his opinion, Mugenzi and Mugiraneza were ignorant of the content of Sindikubwabo’s speech and had participated in that meeting solely for protocol purposes. Finally, Judge Meron acquitted Gen. Ndindiliyimana citing lack of evidence of the latter’s effective control over the gendarmerie during the 1994 Genocide against the Tutsi. He neglected to mention (and we take him at his word) that as Chief of Staff, Ndindiriyimana had effective control over the gendarmes operating throughout the national territory. There is a clear evidence that Ndindiriyimana, as a number of witnesses pointed out, had all the information about the massacres and continued to give orders to his subordinates. Judge Meron went so far as to hold that Ndindiriyimana could not exercise control over the Gendarme Unit that guarded his house at Kansi and massacred people in this very area. Using the same argument, the panel presiding by Judge Meron denied direct involvement of Maj. François Xavier Nzuwonemeye in the assassination of Prime Minister Agathe Uwilingiyimana and the murder of 10 Belgian peacekeepers assigned to her protection on the grounds that the defendant was unaware of the assassination plan implemented by his subordinates. Yet, a large number of people testify that Nzuwonomeye gave orders and provided reinforcements to the unit that assassinated the prime minister and murdered the Belgian soldiers. Should such a series of acquittals and mitigation of sentences be seen as a mere contrast between the Trial Chambers and the Appeals Chamber or Judge Meron’s declared commitment to release the masterminds of the Genocide? Many lawyers view this as Judge Meron’s plan to use his rulings to create case law that would overturn all ongoing and upcoming decisions that would be rendered based on the principle of command responsibility. However, such an important principle was used inter alia in the Nuremberg trials where several Nazi leaders were convicted of unspeakable crimes committed by their subordinates. This same principle was used by such other courts as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Trial Chambers of ICTR and ICTY. Judge Meron is engaged in a fierce battle against the principle of superiors’ criminal command responsibility to an extent that creates an atmosphere of scandal. Despite compelling evidence, he acquitted two Croatian generals Ante Gotovina and Mladen Markac in November 2012, who are well-known for their role in the 1995 massacres of Krajina Serbs. Similarly, Judge Meron on February 28, 2012, acquitted Momcilo Perisic, the former Yugoslav army Chief of Staff. According to Judge Frederik Harhoffdge, Judge Meron would have forced sitting Judges to acquit the defendants. The cases of Bagosora, Nsengiyumva, Zigiranyiranzo, Mugiraneza, Mugenzi, Ndindiriyimana and Nzuwonemeye alone are sufficient to create the belief that other decisions rendered by Trial Chambers will be challenged at the appellate level despite lack of further evidence, with Judge Meron hiding behind the magic formula ; “the Chamber was not satisfied beyond reasonable doubt.” Indeed, all these acquittals were always accompanied by dissenting opinions which indicate that despite compelling evidence, Judge Meron is perfectly free to quash a decision rendered by Trial Chambers regardless of whether he finds an error or further evidence. This merits much greater attention. There can be no doubt that the deferral of the verdict of February 11 about Gen. Augustin Bizimungu is very much in line with Judge Meron’s strategy to reduce the sentence of, or just acquit the defendant. It was not until the end of ceremonies marking the 20th Genocide commemoration that he will finally announce the verdict. Also, despite the Prosecutor’s appeal, Judge Meron granted early release to Dr Gérard Ntakirutimana sentenced to 25 years in prison for genocide and extermination. It is clear that those who missed out on being acquitted by him will be granted early release. The point here is not to discredit any person whatsoever but to demonstrate how the determination of a single judge may subvert the course of justice, without us really knowing the real reason for the move. The writer is a lawyer and researcher. He works with the National Commission for the Fight Against Genocide