After the conviction of Jean-Paul Akayesu for crimes committed in the 1994 Genocide against the Tutsi, including rape, more than half of the accused persons at the International Criminal Tribunal for Rwanda (ICTR) were also charged with rape and other crimes of sexual violence. A total of 52 out of the total 93 accused indicted were charged. However, some cases were more complicated than others. They involved multiple defendants, their crime locations were all over the country, and sometimes the accused hadn’t physically participated in the said crimes. One of them is the ‘Bagosora case’ (Military 1 Trial) which had four defendants, with the time period of the evidence extended from 1990 to 1994. Théoneste Bagosora was co-accused with Gratien Kabiligi, Anatole Nsengiyumva, and Aloys Ntabakuze. Being the Genocide architect, Bagosora had to be held criminally liable for the crimes committed, including rape, which had up to half a million victims. In an interview with Barbara Mulvaney who was the lead prosecutor in the Military 1 Trial, she talks to The New Times’ Glory Iribagiza about how this was achieved. The American lawyer, together with her team, got Bagosora convicted of among other genocidal crimes rape, despite having not physically perpetrated the crime himself, making him the first convict of such crimes under superior responsibility in International Law. Mulvaney, an American, is now writing a book on the trial. Had you worked on other international cases before taking on the Bagosora case? No! When I graduated from Law School there were no international courts as we now know them now. I started my legal career in Miami, Florida as a prosecutor at the State Attorney’s Office with Janet Reno, who later became the first woman US Attorney of the United States. In that Office, we set up the first Domestic Violence Unit in the US and I did an abundance of trial work of all kinds. I also worked for the Los Angeles District Attorney’s Office, New Mexico Attorney General’s Office (NMAGO) where I was the Director of Special Investigations and Prosecution Division where we did white collar fraud, political corruption cases and violent crimes throughout New Mexico. While working at the NMAGO I organized a large state-wide project of sexual violence, on top of my trial caseload. What was the prosecution team like? When I arrived in Arusha at the UNICTR as a Senior Trial Attorney, Carla Del Ponte was assigned as the lead attorney on the Bagosora case, which was starting in 6 weeks. I was incredibly lucky to inherit a brilliant team of lawyers. Christine Graham, from Sweden had worked at The Hague and was our legal whiz. Rashid Salim Rashid from Tanzania knew the facts better than anyone at the ICTR, and Drew White from Canada was an experienced trial lawyer who kept us all organized and marching forward. All four of us were there for the duration of the trial. Both Christine and Rashid became excellent trial lawyers during the trial- all three went on to do other trials at the Tribunal. What did you do first on the Bagosora case? One of the first things was to ask Binaifer Nowrojee to be our sexual violence expert. She wrote ‘Shattered lives’, a book based on extensive interviews of rape victims in Rwanda. She was teaching a course at Harvard on human rights investigations. She accepted and compiled a report based on over 400 rape victims’ testimonies. She was able to identify the patterns of the rapes - the most important was that the rapes were done in full view of the communities - everyone knew that this was happening. The sexual violence case for the Bagosora trial was very different from the Akayesu trial, which was one location and had direct testimony on rape from victims. The Bagosora trial was a very complicated case that took place all over Rwanda. When I arrived, there was a list of over 200 witnesses - ultimately we were only allowed by the court to call 82 witnesses. We had to make strategic choices in which witnesses were cut. Bagosora was not charged with personally raping anyone, but was charged for rape by those who were under his command and not preventing or stopping it from happening. We decided to not call the rape victims to testify and we set about to prove the rapes in a different way. We re-interviewed all the other witnesses about what they heard, saw or knew about the rapes. That evidence combined with the expert witness report made a compelling body of evidence. We convicted Bagosora under command responsibility for the rapes at many locations in and around Kigali from April 6th to April 11th - the period when Bagosora was in control. How did you manage to prosecute him for rape when he may have not physically perpetrated it? One of the lawyers on my team came to my office one day and she realized we were going to cut witnesses and she asked me “what are we going to do about the rape victims?” We found that the investigations division of the ICTR had set up a unit to take statements about rape. But this was individually-kinds-of rape on the ground. It was one person saying “This person raped me”. But what we had with Bagosora was that he was the commander at that time. He was the Chief of Staff of the military after the plane crash, and he was in charge. What we had to do as the prosecution was to come up with a theory on rape. What we ended up doing is getting all the rape cases that we could find in the ICTR database- which were more than 400, and gave it all to Binaifer, who had it analysed. There were certain characteristics about the rapes that she could point out, such as a large percentage of rapes being done in public, and that became very important. The basic theory of the rape case against Bagosora, became that because he was in charge, he knew or should have known that all these rapes were happening. The information from witness statements and expert witness statements was that the rapes were open and notorious, going on everywhere and that they should have known that it was going on and should have stopped it. There was a lot of looting by the military at the beginning of the Genocide, and the military leadership immediately said that “If you don’t stop looting we will shoot you on sight”. So the rapes were as open and as notorious as looting. If they could control the looting they could control the rape. Why did it take almost 80 years to have the first person prosecuted for rape as a war crime? The first conviction for rape in an international tribunal was at the UNICTR. The Akayesu case was the very first conviction for genocide and for rape. The lawyers and the judges were all trying to adapt a new court system to the facts that had been gathered by investigators on the ground in Rwanda. That case and each subsequent case at the ICTR was fact specific. The prosecutors in each trial had different facts to present in the court - the crimes that were committed in 1994 were massive. The cases at the ICTR were the masterminds - select cases of the leaders. Some cases took place in one location others had many locations - Some cases had many defendants other cases had one defendant - some had an abundance of evidence on rape - others did not. What do you think was the role of propaganda in inciting the rape of Tutsi women and girls? Kangura and the RTLM spread genocide propaganda to hate people of Tutsi ethnicity, but Tutsi women in particular were portrayed as mere sex objects who are also dangerous. An example is through the ‘Hutu ten commandments’ where Hutu men were told they would be considered ‘traitors’ if they engaged with Tutsi women in anyway. This, and other hateful content portrayed Tutsi women as “calculated seductress-spies bent on dominating and undermining the Hutu” as Binaifer put it in her report. The stereotypes that Tutsi women were beautiful but inaccessible because they were ‘too proud’ were also used against them during the rapes and other sexual violence. Words like “We want to see how sweet Tutsi women are” and “You Tutsi girls are too proud” were used during the committing of these crimes. All this was the doing of propaganda because these ideas were had by people from all classes, even the people in the remotest part of the country. How do you think the ICTR did on trying rape as a crime of genocide? In hindsight, for the Bagosora case, it was a huge success with unprecedented convictions. I am very proud of the convictions on two rape counts under command responsibility which covered multiple locations over multiple days with hundreds (actually could be more - they were uncounted at this time) of victims. The trial was massive, it took over 440 days in the courtroom and from the first witness to the final judgement was six years and then the appeals decision took three more years. We convicted Bagosora for Genocide, the killings of the moderate political leaders, the killing of Judge Kavaruganda, the 10 Belgium peacekeepers and much more. Three of our four defendants were given life sentences by the trial court, and one was acquitted. It is important to remember that the sexual violence and rape was only a part of our trial. I think because of the magnitude of the crimes arising out of the Genocide against the Tutsi, the prosecutors and investigators often lost sight of the rapes and sexual violence. But still, there is a good history at the ICTR of rape convictions. Do you think having women on the team (prosecution and judges) helped with rape counts? Absolutely. I find that women think about women all the time. They see themselves and their daughters as full members of society that should be recognized. A female Judge Navi Pillay - was the one that stopped the Akayezu trial and asked the prosecutors to consider adding a rape charge. Did the case affect your mental health? How did you deal with it? Everyone at the Tribunal was affected in many ways, but we tend to minimize the impact on our mental health because the trauma and heartache of the Rwandans who were impacted was so much greater than our perceived problems. Personally, I took up scuba diving in Zanzibar - when I was diving I could only think about breathing and fish - which was a nice break from genocide and the pressures of the courtroom. But in reality our work was so consuming no matter what one did to try to escape and mend, there are permanent scars - both physical and mental - that we all carry. It was so much pressure for so many years. We were in and out of jails interviewing witnesses. The 1930 prison in Kigali was rather startling but actually calmer in a way than the American prisons I have been to. Many of our witnesses that we spend many hours with were mass murderers, we sat with them in tiny rooms, in prison or re-education camps preparing them to testify. Every witness had horrific stories that I still remember vividly and they were told from both sides - the families of the victims also the testimony from the killers. The courtroom is a very adversarial and combative place, which isn’t helpful when working with such a traumatic subject matter. I personally felt we had the responsibility to get justice for over a million souls - those who died and all the others who lived on in pain, loss and sorrow. I have been in therapy for so many years with so many different therapists - it is so hard to explain to an American therapist the horrors and suffering that we saw and internalized. I now take long walks with my dogs and my three daughters are very close by and supportive. I do feel gratitude for getting through it all and for finding a little place of peace. I have been back to Rwanda for the 20th and 25th commemorations and it brings me great joy to see the changes in Kigali and the people - so dramatic and positive - it is remarkable. The people who have now surfaced as genocide deniers wound me with their words and I can only imagine what it does to the survivors. I do wish that before people speak about Rwanda that they would read the facts that we presented at the Tribunal and then visit Rwanda before they open their mouths. Their words can do great harm and rip open scars. Side bar Théoneste Bagosora was born on August 16, 1941 in Giciye commune, Gisenyi prefecture, Rwanda. In 1964, he graduated from the Ecole d'officiers de Kigali, later renamed ESM, as a Second Lieutenant and rose to the rank of Colonel in October 1989. Bagosora was appointed directeur de cabinet (Permanent Secretary) for the Ministry of Defence in June 1992. He served in that position until he fled to Goma on July 14, 1994. He was arrested in Cameroon on March 9, 1996 and was transferred to the Tribunal's detention facility in Arusha, Tanzania, on January 23, 1997. He died on September 25, 2021 in Mali In 2011, Bagosora’s life sentence was shortened to 35-years in prison on appeal. He was convicted of: - Genocide, extermination persecution as crimes against humanity, and violence to life - Murder as a crime against humanity - Rape as a crime against humanity - Other inhumane acts as crimes against humanity - Outrages upon personal dignity
