Monday, August 16, 2010
How Judge Bruguière built his flawed case
VICTIM: Rose Kabuye
Historical background of the case
Judge Bruguière began his investigation on 27th March 1998, following a complaint submitted on 31st August 1997 by the daughter of the co-pilot of President Habyarimana’s plane, Jean-Pierre Minaberry, who died in the crash.
Subsequently, the families of the other members of the crew associated themselves in the court action with the public prosecutor.
Although the complaint was lodged in 1997, more than three years after the crash, Judge Bruguière waited until March 1998 to commence a judicial investigation. The choice of this date is not entirely coincidental.
It will in fact be recalled that it was in March 1998 that the journalist of Le Figaro, Patrick de Saint-Exupéry, published a series of very compromising articles on the role of France in the genocide of the Tutsi.
On the 3rd of the same month, a group of French intellectuals published in the daily newspaper Libération an appeal for setting up a commission of inquiry in France with a view of establishing the responsibilities.
With great haste, Paul Quilès, chairman of the Foreign Affairs Commission of the French National Assembly, announced on the same day the establishment of a fact-finding mission, but which was given very limited powers compared to a Commission of Inquiry.
Some observers feel that this coincidence between the commencement of the investigation by Bruguière and the establishment of a fact-finding mission instead of a Commission of Inquiry was motivated by political intentions to conceal the truth.
Indeed, under French law, when a judicial investigation is under way, it takes precedence over inquiries which may be carried out by a commission.
This means that to the extent that Bruguière was investigating the crash of the aeroplane of the President of Rwanda, the Parliamentarians of the Quilès Mission could not go further in their investigations and findings in this case.
Hence the question which continues to be asked but without an answer, namely; why did the victims wait for a period of four years before lodging their complaint, and why the investigation and the establishment of a fact-finding mission occurred so hurriedly at the same time and at a time when the criticisms on the controversial role of France in Rwanda were resurfacing with virulence in the press?
These questions- even without answers - makes it possible to realise right away the predominance of politics in the case raised by Bruguière.
Another sign of the political aspect of this case came to light from March 2004 with an article in the newspaper Le Monde, which revealed that it had obtained the whole investigation report by judge Bruguière and announced that this investigation named the President of the Republic of Rwanda, Paul Kagame, as the culprit number one in the assassination.
Le Monde added that the findings would be published soon. But it took two years for these to be published. Analysts agree that the aim of this article by Le Monde was in reality to sabotage the tenth commemoration of the genocide of the Tutsi which the International Community was about to mark in a special manner. The final date chosen for the official publication of the order raises amother question.
In fact, judge Bruguière’s order was published on 23rd November 2006 at a time when at ICTR, the trial of the alleged mastermind of the genocide of the Tutsi and an ally of France, Col. Bagosora, had reached a delicate phase.
High ranking French officers who had worked hand-in-hand with the ex-FAR were about to give evidence in his defence. A few days after judge Bruguière’s order was out, Bagosora’s lawyers filed an application to ICTR asking that this order be submitted as a piece of evidence in his defence.
All this goes to show straight away to what extent Bruguière’s investigations were tainted with bad faith right from its beginning. It is for this reason that his findings contain serious legal defects which could have been avoided if the investigation had sought to achieve a purely judicial objective.
2. Violation of the impartiality of investigation
Under French law, the mission of the investigating magistrate is to find out the objective truth. This requires him to conduct investigation on incriminating facts and exonerating evidence, by accepting both the facts which establish the culpability of the accused and those in his favour to prove his innocence.
With regard to Bruguière’s report, it is clear that this requirement of objectivity was the least of his concerns. In fact, a careful reading of his order shows very clearly that he investigated one side, the side of the prosecution, very certainly motivated by the keen desire of proving the guilt of the mentioned Rwandan personalities.
There is nowhere in his report any element indicating that during his investigations, he tried to gather pieces of evidence exculpating these personalities. He never tried to interview the suspects.
He never tried to visit the scene of the crime to check on the truthfulness or the authenticity of the information he had received. Let us even suppose that he did not want to visit Rwanda himself, why did he not dispatch a rogatory commission to this end?
He carried out investigation where he wanted, he interviewed those who had the version he wanted to hear. This is a serious defect in the conduct of a criminal procedure.
3. Violation of the secrecy of investigation and respect of the presumption of innocence
The French law provides: (...) “without prejudice to the rights of the defence, the procedure during the inquiry and investigation is secret ”.
This text cannot be clearer with regard to the obligation of discretion required of the investigating magistrate. Yet, judge Bruguière was an exception in this matter since not only was the conduct of his inquiry made public knowledge everywhere, but its findings were also published in the press, without any respect of the normal procedure of communicating discreetly the case file to the prosecution.
The articles which appeared in the authoritative newspaper in France, Le Monde, as the tenth commemoration of the genocide drew near, implicated some important persons in Rwanda in the assassination attempt, stating that it was basing its disclosures on the case file of judge Bruguière. This means that judge Bruguière had communicated illegally the findings of his investigation to the press.
In fact, in its issue of 10th March 2004, Le Monde published a long article entitled “Revelations on the assassination attempt which sparked off the Rwandan genocide”. In this article, it was stated that: “the anti-terrorist judge Jean-Louis Bruguière has completed his investigation on the crash of the aeroplane of President Habyarimana on 6th April 1994”.
The author of the article, Stephen SMITH, wrote “Le Monde has read the final report which puts the responsibility on the Rwandese Patriotic Front (RPF) of General Kagame, the current ruling party in Kigali ”.
Smith explained that the final report of Bruguière dated 30th January 2004 and had 220 pages. The order that was published has only 64 pages, which means that a very big part of the real contents of the charges against the Rwandans accused by Bruguière is known only to a few French Secret Service insiders, including journalists.
We should add that during the whole of March to May 2004, Le Monde continued to regularly attack the Rwandan Head of State, Paul Kagame, by repeating the still vague findings of judge Brugière.
These recurrent attacks, which were based on leaks organised by Bruguiere in breach of the requirement of discretion, had effects on the press and caused moral damage to those Rwandans who were openly accused of a crime, without any respect of the legality applicable in such a case. This is a serious wrong to their presumption of innocence; another no less serious defect.
4. Indictment based on non credible witnesses
Judge Bruguière confined himself on quite an original approach which consisted of using only the witnesses who supported his arguments and convictions, without trying to know whether those witnesses could not be manipulators and liars.
And yet, some of them confess to be criminals; others have defects which would disqualify their evidence such as the fact that they fled Rwanda after being tried and convicted for various offences or in order to escape legal action brought against them.
The minimum judicial logic would require that these witnesses be indicted for the serious acts they recognise having committed. The admission of guilt does not exempt the perpetrator from legal action and trial.
Moreover, the French law prohibits expressly such persons from being witnesses. Thus, witnesses such as Ruzibiza (Editor: Ruzibiza has since retracted his testimony) and others who admit having participated in the shooting down of Habyarimana’s aeroplane should not have been allowed to testify.
The law provides: “Persons against whom there are serious and corroborating indications that they have participated in the facts brought before the investigating magistrate cannot be heard as witnesses ”.
Other witnesses used by judge Bruguière are defectors and dissidents from RPF or declared opponents of the Government of Rwanda who today live in exile, often after having been spirited away from Africa by the French secret service, which meets their daily subsistence allowances.
We are referring here to asylum seekers who are granted settlement authorisations as a result of false evidence which they sell against RPF and the Government of Rwanda.
Bruguière’s report is almost exclusively based on such pieces of evidence. Worse still, another category of Bruguière’s witnesses consists of those who committed genocide and who are detained and under trial by ICTR (Bagosora, Renzaho, Ntabakuze....), or who are roaming the forests in DRC where they commit atrocities on the Congolese civilian population, while carrying out military acts and genocide ideologies against Rwanda (Aloys Ntiwiragaba,...).
Such witnesses have no reliability when they intend to bring evidence against their opponents.
Judge Bruguière used methods of terror and intimidation of witnesses so that they may accept endorsing information he had prepared in advance. He moreover interrogated witnesses who did not speak French without the services of an interpreter as required by the law.
This method of using threats to obtain information shows the intention of Bruguière of making the persons he intended to indict feel guilty in advance. The evidence of Ruzigana is enlightening in this regard. He says that he wanted to have the experience of going abroad. He then got in touch with his former companion in the army, Ruzibiza, who was in Europe.
Ruzibiza contacted Bruguière who indirectly organized his journey from Rwanda through the French secret service who granted him an entry visa to France from the French Embassy in Tanzania.
On his arrival in Paris, he was immediately taken to the office of Bruguière who interrogated him about the person responsible for the assassination attempt.
When he was not giving the answers corresponding to what the judge wanted, the latter would threaten him that he would not be granted political asylum in France.
Here is his account: “It is through my former friend, Abdul Ruzibiza, that I went to France. Following my demobilisation after the war, I was deployed to the Police. But I wanted to lead a different life, to try my luck abroad.
Ruzibiza then advised me to go to Tanzania. He informed some people in France who then contacted the French Embassy in Tanzania, and the latter granted me a visa and helped me to fly to France.
I however was not an asylum seeker, I have never been one...Upon my arrival in Paris, policemen were waiting for me at the airport and they immediately took me to the judge.
Although I do not speak French, there was no interpreter, there was only a secretary. I more or less understood the questions and tried to explain myself.
The judge asked me where I was coming from, how long I had been in the army. He asked me again whether I was a member of the death squad, the notorious Network Commando.
I replied that there had never been such a network in Rwanda. He then interrogated me about the assassination attempt. Since I had no answer to this question, he insisted saying that I was a member of RPF Intelligence Service.
I replied that I was indeed a member of the Intelligence Service but that in my country, one gets information about the service to which one belongs and nothing more. He then asked me about senior officers and wanted me to explain how these officers went about killing people.
It is at this juncture that the interrogation went sour because I told him that no senior officer did that kind of killing; of course I told him that there had been dead people, but that this was during the war. There had been dead people even among our ranks....
As the conversation dragged on, I became angry because when I gave him an answer he did not like, he said that that was not true, that the answer did not correspond to what he had been told. It is then that it dawned on me that I had been tricked...
Fortunately, the friend who had been waiting for me at the airport had followed me to the judge’s office and parked nearby waiting for me. As soon as I came out of the office of the judge, very angry, I did not even want to spend a single night in France; we immediately went to Belgium and from there, I went to Norway.
At the end of my hearing, I signed the statement, but in reality, my statement did not even amount to five lines because when he asked me a question and I could not answer, I said nothing. Yet in the judge’s report, the statement he alleges is mine is quite longer....
In fact, he already had all the answers to those issues....If I have decided to testify today knowing well that these people could kill me, it is because the judge wronged me in terms of my reputation, in relation to my country...”
6. Violation of diplomatic immunity
Among the Rwandese personalities accused by judge Bruguière, there are some who enjoy immunity from criminal jurisdiction under the Vienna Convention of 18th April 1961 relating to diplomatic relations, which came into force on 24th April 1964.
That was the case especially of Rwanda’s Head of State and Rwanda’s Ambassador to India, General Kayumba Nyamwasa. These two personalities enjoy the immunity of their persons and immunity from legal proceedings and cannot be sued as long as they are in office.
This principle is a permanent feature which is regularly recalled by the International Court of Justice, underlining the imperative necessity of respecting the privileges and immunities of diplomats.
In the ruling dated 14th February 2002 in the case of the Democratic Republic of Congo vs Belgium, the Court even specified the nature and scope of these immunities by pointing out that during their term of office, the Heads of State, the Minister of Foreign Affairs and other diplomats in office, shall enjoy immunity against criminal jurisdiction and total immunity abroad.
The same applies when these authorities are on the territory of another State, whether on official or private business. The Court pointed out that these immunities cover all the actions carried out both before the appointment of these authorities and in the course of their duties, whether these are official or private actions.
Finally, the Court considered that there was no exception to this rule in international law. Pursuant to this rule and jurisprudence, Rwanda’s Head of State cannot be legally subjected to any form of arrest or detention. Any attack on his person, his freedom or his dignity is prohibited by international law.
And it should be noted that the immunity from legal proceedings enjoyed by the Heads of State and diplomats concerns both administrative and civil jurisdictions as well as criminal jurisdictions.
Bruguière was aware of this problem because while he was issuing an arrest warrant of the President of Rwanda, Paul Kagame, he specified that he was covered by immunity, but he hurriedly wrote to the UN Secretary General asking him to compel the ICTR Prosecutor to take legal action against him. This is rather a petty political than a legal ploy.
Moreover, ICTR did not take long to denounce the action of judge Bruguière. At a press conference held in Arusha, the spokesperson of the Tribunal, Everard O’Donnell, recalled that “the ICTR Prosecutor does not take any instruction from anybody in the world”.
Article 15 of the ICTR Statute provides that: “the Prosecutor shall act in total independence. He shall not solicit or receive instructions from any government or any other source”.
7. Negation of an internationally established and recognized genocide
From the view of the Convention of 9th December 1948 on the prevention and punishment of the crime of genocide, genocide is an action committed with the intention of destroying wholly or in part a national, racial, ethnic or religious group as such.
The crime of genocide presupposes therefore the existence of the intention to commit a criminal act against the above mentioned four groups. In other words, there is no genocide without the specific intention of committing it.
Yet, Bruguière concludes that it is President Kagame who was behind the attack against Habyarimana’s plane and that, consequently, it is Kagame who lit the fuse of the genocide of the Tutsi.
To assert that it is the attack against the aeroplane which led to the genocide amounts to saying that the extermination of the Tutsi was a spontaneous act, not premeditated, devoid of genocide intentions.
Such an argument has important legal consequences since it clears the act of killing the Tutsi of its genocide nature, consigning it to the act of manslaughter or an unintended criminal act or, perhaps, to the act of crime against humanity.
The logical consequence is that the perpetrators of the genocide are absolved from this crime in favour of a less serious offence such as the crime against humanity or simple murder.
The defence lawyers at ICTR have always attempted this ploy, desperately trying to negate the existence of the genocide in Rwanda in favour of the offence of the crime against humanity, in order to reduce the scope of the crime of genocide and applicable punishment.
However, in terms of international jurisprudence, there is a very important historical judgement, that of Jean-Paul Akayesu, which has since become a constant reference point for the crimes that were committed in Rwanda in 1994: ”the genocide was organised and planned not only by the members of FAR, but also by political forces grouped around Hutu Power, and it was implemented by the majority of the civilians, including particularly armed militia and even ordinary citizens; and Tutsi victims were in their big majority non combatants, including thousands of women and children, even foetuses. The fact that this genocide was committed when FAR were fighting RPF cannot in any case be used as extenuating circumstances to its perpetration ”.
And then ICTR clarifies: “It is then clear that the massacres which were committed in Rwanda in 1994 had a specific objective: namely the extermination of the Tutsi, who were targeted especially because they belonged to the Tutsi group, and not because they were RPF fighters. In any case, Tutsi children and pregnant women would naturally not have been among the fighters. The Chamber concludes therefore from all the foregoing that genocide was, indeed, committed in Rwanda in 1994 against the Tutsi as a group. In the opinion of the Chamber, this genocide appears to have been meticulously organised ”.
The special Rapporteur of the United Nations Commission for Human Rights, René Degni-Segui had come to the same conclusion in his report of 28th June 1994 where he notes: “The clear and unambiguous intention is well contained in the continuous calls to kill by the media (in particular RTLM) and in the pamphlets. (...) A corroborating body of evidence: preparation of massacres (distribution of firearms and training of militia), number of killed Tutsi, and outcome of the application of a policy of extermination of the Tutsi. (...) The qualification of genocide must already be accepted with regard to the Tutsi. It is different with regard to the killing of the Hutu”.
Faced with the multiplicity of attempts by the defence lawyers at ICTR to negate the existence of the genocide, the judges of this Tribunal finally brought to a close the debate on 16th December 2006 in the case of Karemera, by stating that the genocide of the Tutsi was public knowledge which should no longer be debated.
BY JEAN-DAMASCENE BIZIMANA (PHD) INTERNATIONAL LAW