By Judi Rever
“An appropriate investigation of the plane attack that killed Rwanda President Juvenal Habyarimana — the act that sparked the Rwandan genocide — would have unraveled a whole urban myth about how the genocide occurred, why it occurred and who was responsible.”
The quote sounds as if it would have come from a defense lawyer at the UN’s International Criminal Tribunal for Rwanda (ICTR), but it did not. It was from a senior lawyer who worked at the ICTR’s Office of the Prosecutor (OTP) who went on to have a successful career in international law. He summarized the chargesheet against presumed genocidal kingpins, chief among them former chief of staff Colonel Théoneste Bagosora, an ethnic Hutu, and other members of the so-called Akazu. The Akazu was considered a tight circle of individuals around Habyarimana who had initially been suspected of wanting to wipe out the minority Tutsi in order to secure Hutu domination.
“The urban myth was that Bagosora and the Akazu killed Habyarimana because he was becoming a moderate and was participating in the power-sharing agreement of the Arusha Accords. And they did so as a basis for their larger genocidal intent…having armed the militias the preceding year with Chinese machetes,” the lawyer said.
Another lawyer who worked at the OTP on the Military I case that prosecuted Bagosora also believed the Akazu conspiracy was an urban myth. He insisted that, from an evidentiary standpoint, the theory was unfounded and set the ICTR prosecution strategy down a path of no return.
The first, more senior lawyer said categorically that the UN tribunal set up in the aftermath of 1994 was incompetent and driven by a “misguided theory of the genocide and the dynamics of the Great Lakes region as a whole.” He suggested lawyers were deluded by their “devotion and compulsion to avenging the genocide” and did not examine the causes and consequences of the violence in the first place.
“There was a belief at the tribunal that we were prosecuting the bad guys,” he insisted.
I told him that I’d accessed a number of confidential documents leaked from the ICTR’s Special Investigations Unit that probed crimes by Paul Kagame’s Rwandan Patriotic Front (RPF). Over a number of interviews with him, I shared the findings of criminal investigators who gathered testimony from RPF deserters and told him I’d also interviewed many former RPF officers and soldiers who made similar, even more detailed claims. He seemed surprised I had accessed these ICTR files but was not shocked at the evidence itself. He knew about all of it: the systematic killings of Hutus by RPF death squads, especially in the north and east, the mass graves, the burning of bodies in Akagera Park, the methods of concealment.
“I think that the bad guy got away,” he admitted, referring to Kagame, before qualifying the statement. “At least one of them. But that doesn’t make the other bad guy any less of a bad guy,” referring to Colonel Bagosora, who is considered the architect of the genocide against Tutsis. At that time, I didn’t raise the issue with him of RPF commandos infiltrating Hutu militias and killing Tutsis. The subject seemed like another conversation, even if it might be consistent with his assessment that the genocide did not unfold as the tribunal initially thought, or as observers commonly think to this day.
But it wasn’t just incompetence and delusion that derailed justice at the ICTR, in his view.
He went on to say that a “malicious conspiracy” explained in part why the tribunal did not fully investigate the assassination of Habyarimana and indict Paul Kagame and RPF commanders for crimes they committed in 1994.
In legal terms, an act done maliciously is one that is wrongful and performed willfully or intentionally, and without legal justification. I understood the term “malicious conspiracy” to mean there was a cover-up. In other words, the tribunal, at the behest of the United States, wanted to protect Kagame. Although the lawyer was less forthcoming as to why there was a cover-up and what the end game was for the United States and its Western allies.
In any case, he was unequivocal about who “started” the genocide: “The RPF shot that plane down. Everybody now knows that and everybody knew it at the time.”
“There was an abundance of evidence that should have been available under the right circumstances to prosecute the crimes committed by the RPF. The reason they were not available is because the command and control relationship of the RPF put Paul Kagame in direct authority over any of those acts that would have been committed. So therefore, Paul Kagame would have been the ultimate indictee,” he stated.
ICTR prosecutors were “not able to work through this nuance,” the lawyer pointed out. In any case, he claimed that indicting Kagame would have destabilized the region. The last part of his assessment (that somehow leaving Kagame alone was a safer bet for everyone) made no sense to me.
Kagame’s RPF had killed hundreds of thousands of Rwandans inside the country, mostly Hutus, during and after the genocide. His forces invaded Zaire in 1996 and unleashed a protracted war that has taken the lives of millions of people. His militias, along with those backed by Uganda fed off Congo’s minerals and other resources, and their military and business networks were still in place. How much more destabilizing could one man be?
I argued that granting Kagame immunity had in fact done the reverse; his predation had set the region on fire. The lawyer just kept shaking his head, and I kept asking him where was the real evidence that Kagame had ever been a stabilizing force, as though asking the same question repeatedly, in different ways, would get a different answer. Normally it doesn’t — and it often annoys the hell out of people being interviewed. But in this case it worked. He finally told me that it was the perception of regional stability that mattered, not whether it was in fact true.
“How has Kagame destabilized the region even more, in the view of American politicians? Not in the view of three million victims in Kivu, but in the view of diplomats and politicians in Washington who say ‘I don’t see the bodies of three million victims on the news tonight. They are not impacting congressional mid term elections. They (the bodies) are not coming out of the mouths as questions from reporters in the pressroom at the White House. Those three million bodies are invisible. And the coltan is coming out and is going into the phone that I’m using to call my sister and my children at school.’ The reality is that nobody cares what Kagame does in central Africa, so the destabilization that Kagame and Yoweri Museveni have rid on (delivered to) the region is invisible to those who are able to stop it or change it,” he said.
“We have a sham of a UN peacekeeping presence in Congo” he went on, “yet in eastern Congo we’ve got military forces supported by direct allies of the United States that we somehow can’t control.”
By all accounts the UN was not interested in accountability nor was the West interested in ensuring stability in central Africa. Yet for a time, it appeared that France was interested in setting the record straight on who started the genocide in the first place. The families of the French pilot, copilot and engineer aboard the plane that was shot down wanted to find out who was responsible. In 2006, after an extensive investigation, French judge Jean-Louis Bruguière issued arrest warrants for several of Kagame’s senior commanders and urged the ICTR to prosecute the president for assassinating Habyarimana and sparking the slaughter. Kagame responded by breaking off diplomatic ties and accusing the French government of being complicit in the genocide. In 2007, Bruguière left his job as investigating magistrate while the inquiry was still gathering evidence and was replaced by Marc Trévidic and Natalie Poux. By that time, Nicolas Sarkozy was president and determined to mend relations with Rwanda. The French judges ratcheted up their probe, hiring ballistics and acoustics experts and gathering testimony from witnesses who heard and saw the blast on the evening April 6, 1994. In 2012, the judges released the results of a technical investigation that suggested it was likelier the missiles had been fired from a location in Kanombe, an area that included the military barracks where the former Hutu forces had been based. But the French inquiry was not over yet and would continue to collect testimony. In 2014, a young man named Emile Gafirita, one of Kagame’s former bodyguards, had agreed to testify that the RPF was behind the attack. Gafirita had been a child soldier when he joined the RPF in the early 1990s. He broke with the regime in 2009, fled to Uganda and in 2014 was hiding in Kenya, where he was at serious risk of being killed by RPF agents. On November 13, 2014, shortly after Judge Trévidic identified Gafirita as a future witness in the inquiry, the young man was kidnapped in Nairobi by a group of armed men and never seen again. (To wit: once Trévidic entered the name in the dossier, only the lawyers involved in the case had access to the file.) My sources said Gafirita, after being seized, was taken to Kami military barracks on the outskirts of Kigali and killed. Shortly after the kidnapping, I called Leon Lef Forster, the French lawyer defending RPF senior commanders accused in the case, and asked him whether he’d passed on Gafirita’s name to his clients in Kigali. He admitted he had, and that he had every right to do so. I recorded the conversation.
In February 2018, on the grounds that identifying Gafirita to his clients in Kigali could constitute an obstruction of justice, I submitted the recording of my interview with Maître Forster to France’s Public Prosecutor and Judge Jean-Marc Herbaut, who was then heading the probe into the assassination of Habyarimana following Trévidic’s departure. The office of the prosecutor and Judge Herbaut declined to enter the recording as evidence in the file. In May 2018, after discussions with two lawyers representing civil parties in the case, Emmanuel Bidanda and Philippe Meilhac, I submitted to them a confidential document that had been leaked to me from the ICTR’s Special Investigation Unit probing RPF crimes. The document, labeled Top Secret, was a summary of crimes allegedly committed by the RPF, and included testimony on the plane attack. The evidence compiled from RPF deserters indicated that RPF leaders, among them Paul Kagame, had held meetings to prepare the attack on Habyarimana’s plane, that a team in charge of the missiles had been created and trained in Uganda, and that the missiles were brought to the RPF headquarters in northern Rwanda before being transported to a farm in Masaka, an area in the capital controlled by the RPF. The ICTR report named members of the missile team and those who fired on the plane, and listed potential targets for indictment, including Kagame himself. The document included numbers that likely corresponded to fuller witness statements or annexes not included in the ICTR report. I believed that the top secret report itself — and the possible annexes to it in the archives at the ICTR — could be considered crucial evidence, both corroborating and new, for the French inquiry. The lawyers for the plaintiffs agreed with me and submitted the report to Judge Herbaut in June 2018 but he declined to enter it as evidence.
In October 2018, the French Office of the Prosecutor recommended dismissing the charges against the RPF and closing the file. The prosecutor said many witnesses claimed Kagame’s rebels had fired the missiles but there was “insufficient evidence” to prove the allegation, including a lack of “irrefutable material evidence” such as flight and data recorders. Some witnesses had retracted their statements or refused to repeat them, according to the prosecutor.
Filip Reyntjens, a leading scholar on Rwanda, has followed the investigation closer than anyone and submitted evidence that showed the missiles fired came from Ugandan stock. (Uganda was the RPF’s closest ally in 1994). Reyntjens called into question the prosecutor’s competence for repeatedly ignoring key evidence or contradicting it. He said the prosecutor ultimately shrouded the case by giving credibility to a Rwandan investigation (the 2010 Mutsinzi report, a probe that was not independent), and to other testimony that was poorly substantiated. Reyntjens said that that eight out of twelve witnesses that the prosecutor cited said the missiles were fired from Masaka, indicating the RPF was responsible.
Emmanuel Bidanda said the disappearance, kidnapping and killing of individuals who should have testified or were to testify were significant events but were not given serious consideration by the prosecutor. (In addition to Gafirita’s kidnapping, Théoneste Lizinde, who was believed to have helped Kagame plan the plane attack, was killed in Kenya in 1996 after he fell out with the regime; Eric Léandre Ndayire, an RPF cadre whose testimony was provided to French investigators in 2005, was killed two years later after being kidnapped in Uganda.)
“The fact that these people have been targeted was entered in the dossier. But the prosecutor treats this matter as though it is trivial. As though these people died of a heart attack, or something minor. There is no context, ” Bidanda told me.
“What we’re dealing with is state terrorism, from the start. There was an immediate offensive by the RPF after the assassination of Habyarimana. Everyone, from the lowest ranking soldier to the highest officer, has said it is impossible to have launched an offensive that big without preparation. The RPF seized power and they are still in power. And they do not want an investigation. We have a dossier that has geopolitical underpinnings. If we do not take into consideration the political context we do not understand history or the case, “ he explained.
 Interviews in 2015 and 2016 with a former lawyer with the Office of the Prosecutor at the ICTR
 Interviews in 2013 and 2017 with a former OTP lawyer who worked on the Military I case
 Judi Rever, In Praise of Blood, The Crimes of the Rwanda Patriotic Front (Toronto: Random House Canada, 2018) pages 68–70.
 Interviews with Emmanuel Bidanda and Philippe Meilhac, lawyers representing civil parties in the case.