ANALYSIS. He is accused of being the “financier” of the Rwandan genocide. The Court of Cassation must examine the appeal against its surrender to international justice.
On May 16, 2020, Félicien Kabuga, one of the last great alleged genocidaires, wanted for more than twenty years by the International Criminal Tribunal for Rwanda (ICTR) then, after its closure, by the Mechanism responsible for closing the last cases of international criminal tribunals (MICT), is arrested in France , in the Paris region, where he had been living for more than ten years under a false identity.
The indictments issued against him by the ICTR retain the heaviest crimes of genocide committed in his capacity as Chairman of the Initiative Committee of the Free Radio and Television of the Thousand Hills (RTLM) since April 1993 and Chairman of the Fund Committee. national defense since its creation in April 1994.
This arrest marks the start of a long legal process. Despite the accused’s great age (85), his first court appearance will not take place for several weeks (see below) and the verdict is not expected for at least three years. Apart from the high probability of a conviction, many doubts remain however about the emergence of elements of truth in a case already marked by numerous interference from politico-judicial, even economic, national and foreign actors.
The challenges of the prosecution
The first of the challenges of this affair concerns the twenty-six years of a run , many aspects of which remain opaque.
For Rwandans prosecuted or likely to be concerned, the choice of host countries depends on the security guarantees they can offer or cash in, and on the local support they benefit from.
Here we find many countries and / or individuals from five continents who had disowned the attack on 1 st October 1990 conducted by the Rwandan Patriotic Army (RPA) , which had plunged the country into war. These are the same countries which, on April 6, 1994, when the attack on the presidential plane decapitated the state and the army, awaited the announcement of the signing of the agreement allowing the establishment of institutions of transition which had just been signed in Dar es Salaam. The same who, after the military victory of the insurgents and the installation of an autocratic power, have helped tens of thousands of Rwandans forced into exile. Exiles who have benefited from the understanding of state powers and personalities attached to “Rwanda before”.
General political instability has made exile in the countries of the South, especially in Africa, uncertain. Likewise, the work of the ICTR and the national courts has gradually dismantled or weakened activist groups.
Thus, the choice to settle in Europe and a fortiori in France not far from his relatives could paradoxically present the fewest vital risks and remained compatible with reduced resources. Finally, the last stage of Félicien Kabuga’s run was only possible because his contacts were limited to the strict family nucleus.
Beyond that, it will be difficult to reconstruct trajectories and networks, as well as to identify the interlocutors who have granted their protection and who will not spontaneously participate in the work of truth and justice.
From allegations to evidence
The arrest of Félicien Kabuga prompted the same comments as those advanced in 1999 when the indictment was published. Same descriptions of the importer of machetes arming the genocidaires, of the “richest man in the country”, of his family ties with the presidential couple, of his functions at RTLM, of the financing and structuring of militias and of civilian self-defense. On these last two points, several trials have ended with substantiated judgments, but a vast amount of work remains to be done, in particular on the “financing of the genocide”.
As early as 1995, the ICTR prosecutor initiated various financial investigations in order to establish the responsibilities of the Ministers of Finance (E. Ndindabahizi) and of Planning (A. Ngirabatware), of Félicien Kabuga, the latter’s father-in-law, and a few other. For the Office of the Prosecutor, the “genocidal conspiracy” had to result in demonstrable economic decisions. Among the possible proofs was the Galand-Chossudovsky report , invoking the “planning of the genocide” through the importation by F. Kabuga of exceptional quantities of machetes.
But very quickly, the ICTR’s research came up against the lack of tangible evidence. The archives from the ministries, including military expenditure, did not make it possible to establish links with the genocide. The “machete thesis” turned out to be highly uncertain. It was almost impossible to establish the direct and personal responsibility of the accused and to prove that the machetes were imported with the intention of killing .
In 1999, the public prosecutor reoriented his financial investigations on the analysis of accounting records and personnel management of public and private companies. They made it possible to establish the funding mechanisms and networks that accompanied the structuring and training of the youth of the National Revolutionary Movement for Development (MRND), the Interahamwe and other parties. The youth movements, created during the establishment of the multiparty system in 1991, have increased the influence and means of action of the parties tenfold and strengthened their militant presence. With the war, they turned into youth militias serving the politicians who financed and / or hosted them (like Félicien Kabuga in Kigali), and even armed them. The surveys also demonstrated the role of public enterprises in the civil war, even though most of the transactions were carried out in cash, therefore without material evidence.
In 2001, the investigations progressed notably, thanks to the access to the bank accounts of the people and structures suspected of having organized the looting of parastatal companies and the budgets of the large technical ministries. Analyzed, the documents made it possible to reconstruct the channels of massive diversion of financing for development projects, parastatal establishments and ministries, for the purposes of personal enrichment and consolidation of patronage or partisan networks, as well as the creation of front companies. recycling funds, or transfers abroad when the outcome of the defeat has become certain.
Decisive evidence in key cases has been filed before the ICTR and other foreign jurisdictions. Impunity was such that most transfers were made directly to the personal accounts of dignitaries. There was therefore great concern, in various quarters, to see genocide-related investigations revealing ancient but also recent forms of misappropriation of public or private funds for personal or political ends.
In May 2001, the Prosecutor’s Office attempted to broaden its research to the highest level of power. A work program has been sent to the Minister of Justice with a list of names and establishments. The requests included transactions carried out after the war on the accounts and property of figures of the former regime who died, continued or “recycled” by the new authorities.
But the very day of the request, a wind of panic blew within the banks, in particular in Belgium , which made known their total opposition to the highest level of the Rwandan state . The inquiries were refused on the grounds that they could harm “national reconciliation” and “the reconstruction of the country” because they would raise the concern of economic groups henceforth immune to investigation.
What will happen in the future, when investigators from the Prosecutor’s Office seek such evidence in Rwanda, but also in Belgium, Switzerland, France and elsewhere? Is it possible to hope that they have been saved?
The credibility of witnesses
A third question concerns the credibility of witnesses.
In this area, we must salute the know-how of the Rwandan instructors, able to organize intensive sessions with selected witnesses, to shape evidence that is difficult to challenge, because only the authorities control total access to the field and to individuals.
Rwanda has never renounced the use of false witnesses, or even the invention of implausible evidence. One wonders if the National Public Prosecution Authority will dare to have RTLM host Valérie Bemeriki testify. Sentenced to life imprisonment in Rwanda, she has become the obligatory witness of the authorities in numerous proceedings , despite the rejection of all of her testimony, described as “deplorable” by the ICTR judges in the media trial.
This did not dissuade the prosecutor Théogene Rwabahizi, of the Genocide Fugitive Tracking Unit, from writing with her, on August 6, 2016, a long statement, attached to a request for arrest targeting Enoch Ruhigira, former chief of staff of Juvénal. Habyarimana. Valérie Bemeriki recounts there that on “April 9 or 10”, leaving the office of the director of RTLM, Mr. Ruhigira allegedly asked two soldiers to immediately shoot down two young passers-by whom he had designated as being Tutsis. However, Enoch Ruhigira had been a refugee at the residence of the Belgian ambassador since April 7 before being exfiltrated on the 12 to Europe. The same Rwandan prosecution file also included various reports of witnesses declaring to have seen the accused during the three months of the genocide!
If we add to these reservations the disappearance, over time, of many witnesses and the probable destruction of decisive archives, one of the major challenges of the Kabuga trial is that of the credibility of the witnesses and the value of the evidence. submitted to judges.
To consolidate the investigations, the Belgian judge Damien Vandermeersch recommended in 1999 “an increased control of the prosecutor” , and the introduction of adversarial proceedings, which would allow the defense to know the case from this stage of the investigations. All the parties would have an interest in it, so that this final trial serves the expression of the truth on essential outstanding questions concerning the actors and the chain of events that they triggered or accompanied. The Mechanism is certainly accountable.
But such an objective, with the tasks it entails and the slowness of an international tribunal, is it compatible with Rwandan expectations?
Truth versus rewriting history
While relations between the ICTR and Kigali are marked by a succession of crises and the credibility of international justice on the continent is often called into question, the challenge is considerable for the MICT.
For those who want to know what happened in Rwanda, it would be incomprehensible if whole sections of the decision-making system, the organization and the conduct of the war and the genocide remained unanswered.
For Rwanda, the objective would be the formal recognition of “the planning of the genocide of the Tutsis several years in advance”, which no chamber of the ICTR has ever been able to establish. The theory of the “genocidal conspiracy” (which would have been the work of Agathe Kanziga, widow of President Habyarimana, of her brother Protais Zigiranyirazo, of Félicien Kabuga, related to the family, of Colonel Bagosora, etc.), supported by the first prosecutors of the ICTR, was very early abandoned for lack of evidence considered sufficient despite the accusations of Rwanda. The failure was confirmed by the judges in the Bagosora trial , then in the acquittal of Zigiranyirazo on appeal. As for Agathe Kanziga, she has never been prosecuted by the ICTR and so in 2001, Kabuga became the No. 1 target of the prosecutor.
But if the probability of obtaining a conviction under the “cartel” for his role in RTLM remains uncertain given the jurisprudence resulting from the media trial, initiating the trial of the presidential nucleus through the Kabuga case could be considered, which would offer an extension to the conviction of his son-in-law, A. Ngirabatware , the intellectual and adviser to the presidential clan.
Indeed, after the departure of Agathe Kanziga for France on April 9, 1994, the members of the presidential family who had not been evacuated fell back to Gisenyi on April 11, and were joined by others like Félicien Kabuga. According to our sources, from her Parisian exile, in conjunction with the HQ of Méridien Izuba in Gisenyi, Agathe Kanziga maintained mediation activities with several African heads of state who reinforced the diplomatic position of the interim government (GI).
On July 3, 2020, a dismissal was pronounced by the Paris Court of Appeal in the case against RPF personalities for the attack of April 6, 1994. For the Rwandan authorities, this dismissal would therefore imply that the plane was shot down by Hutu extremists, of which Agathe Kanziga would have been the spearhead. She would also have been, during the night of April 6 to 7, the ordering officer of the killings committed by the presidential guard as well as of the massacres committed in Kigali by the Interahamwe, before installing Colonel Bagosora as GI trainer.
Whatever the outcome, the Kabuga trial would allow Kigali to relaunch the campaign to secure the trial in Rwanda of Agathe Kanziga, who is still in France today. It would be a flagship trial that would complete the victory of the Rwandan authorities over all the judicial and political processes that still elude them today.
Through these final trials, the priority of the power in place in Kigali remains to consolidate its rewriting of the tragedy, which has become the official history of war and genocide, protected by laws on negationism and revisionism.
However, a trial of Agathe Kanziga in Rwanda comes up against obstacles that emerge in several interviews with President Paul Kagame. The 1 st April 2019, he was responding to Jeune Afrique , who asked him if he thought one day obtain his extradition:
” I do not know. But even if our request is not, for one reason or another, considered, why was this woman never concerned by the ICTR or by the French justice? Why was she never investigated in the country where she took refuge? The facts speak for themselves. “
It is true that Agathe Kanziga has never been prosecuted by the ICTR. But how could the prosecutors have prosecuted the widow of Juvénal Habyarimana after refusing to deal with the attack and having granted the RPF total impunity by stopping the investigations into his crimes?
In another statement to Jeune Afrique on July 2, 2020 , Paul Kagame is opposed to any reopening of the attack file as part of the final appeal filed with the Court of Cassation. Knowing the perpetrators of the attack would therefore not be a necessity. An official history is not written on the basis of evidence, but of a balance of power.
It is one thing to organize the moral and political demonization of the presidential family, another is to loudly demand a real trial. However, such a trial would open contradictory debates on the April 6 attack, international guarantees, and war crimes and against humanity which accompanied the RPF’s conquest by arms .
Arusha uncertainty
While it seems unlikely to obtain precise information on Kabuga’s run and that witnesses to the crimes attributed to the accused are legion in Rwanda, one cannot exclude the possibility that the authorities in Kigali ask the MICT to relinquish the case in their favor after the final confirmation by the French justice of the transfer of the accused to the Mechanism.
On May 28, Judge Sekule , of the MICT, recommended waiting for the lifting of restrictions due to the pandemic before organizing the trip to Arusha (Tanzania), but added that “an appropriate alternative could be sought”.
Indeed, uncertainties about a transfer to Arusha remain: medical conditions of the accused, structures to treat Covid, recruitment of staff …
Rwanda could then be considered as an “appropriate alternative”, knowing that a High Court has been installed for this purpose in Rwanda, that its rigorous management of the Covid is internationally recognized , and that the European Union has restored flights direct with Kigali.
This would echo the arguments put forward by the association of survivors Ibuka : “If he is handed over to Rwanda, the question of reparations can be raised”, estimated its president, recalling that “the international judicial system has not provided that the the question of repairs be asked ”.
Arusha, The Hague, Kigali? The question remains open and, whatever the answer, it will not end the MICT / Rwanda competition. Nevertheless, another outcome could still upset the hypotheses: that of a guilty plea. A procedure that would only be validated by the judges after a full and detailed hearing of the accused, committing him to tell the truth on the basis of the proven facts. If this option were accepted by the prosecutor Serge Brammertz , it would lead to a deeply streamlined procedure.
* André Guichaoua is a university professor at Paris-1-Panthéon-Sorbonne University.
