Trevidic Report and the politics of commissions of inquiry since the genocide

Two weeks ago, a team of French experts led by Judges Marc Trévidic and Nathalie Poux released their report into the downing of the plane carrying President Habyarimana on April 6, 1994 and his consequent death.

The incident is widely believed to have triggered the genocide. Seventeen years later and despite the latest report, the question of who downed the plane and who is responsible for Habyarimana’s death is settled to some while disputed by others─especially critics of the RPF led government. The Chronicles’ Editorial Consultant, Dr Christopher Kayumba analyses the politics of commissions of inquiry since the genocide and argues that of all reports produced so far─over ten of them from ten commissions of inquiry concluded since the end of the genocide, the most consequential, politically and diplomatically for Rwanda and France, is the Bruguière and the Mucyo Commission reports.

Since the end of the genocide in 1994, no fewer than ten commissions of inquiry have been set up and reports produced on this horrendous human failure once called “the crime of crimes” by the man who coined the word Genocide─Raphael Lamkin more than half a century ago.
Variously named, there is the UN report, the OUA report (now AU) of 2007, the UN Special Rapporteur Rene Degni-Segui report of 1996, the French parliamentary commission in 1998, the French Military and Foreign Ministry Commission report, the Belgian report, the Canadian report, the Bruguière report, the Spanish judge Fernando Andreu’s report and related indictments of 40 Rwandan senior officials, the Mucyo report, the Mutsinzi report, and now the Trévidic report, among others.

The UN report concluded by accepting the world body’s failure and put in place some mechanisms to plaster them─such as early warning mechanisms, and the responsibility to protect doctrine. The OUA/AU report also indicted the UN, and the OAU for failure as well as specific countries such as France and the United States. Substantively, beyond adding documentary evidence, nothing much came from it.

A look at other reports, such as the French parliamentary commission report, served to exonerate the French military and political class of any responsibility in the genocide; although it accepted “errors” of judgment were committed. The Mucyo commission report named 33 French senior military officers and political leaders of direct responsibility; the Mutsinzi commission concluded that the plane carrying Habyarimana was brought down by a missile from Kanombe military barracks and named extremist Hutu elements in FAR and government as responsible.

Judge Fernando Andreu of Spain invoked the idea of universal jurisdiction and indicted 40 Rwanda officials. While this report and related arrest warrants raised the political temperature and in some ways curtailed travels of some named officials, due to minimal influence of Spain in world affairs, questionable methodology used, limited credibility of the basis on which indictments were based and assumed limited intimate knowledge of Rwanda by Spain, these indictments did not have profound consequences as the one issued by Judge Bruguière. We shall see why.

The Trévidic report and its possible consequences
Then, to add further empirical evidence, judicial and political drama, on January 10, French judges Marc Trévidic and Nathalie Poux released their report relating to the shooting down of former Rwanda President Juvẻnal Habyarimana on April 6. Consensus exists that this incident triggered the genocide.

After the release, the Government of Rwanda issued a statement where Foreign Affairs Minister Louise Mushikiwabo stated that “Today’s findings constitute vindication for Rwanda’s long-held position on the circumstances surrounding events of April 1994″. She added, “With this scientific truth, Judges Trévidic and Poux have slammed shut the door on the seventeen-year campaign to deny the genocide or blame its victims”.
At a press conference the same week following the release of the report, Justice Minister Tharcisse Karugarama told reporters that “This (the Trévidic report) is a case file that is finished as far as we can see”. He added, “To say that the plane was shot from Kanombe is not new. There is a UN report, the Mutsinzi Report, the Carlson Report, the report of eminent persons, the British Military Academy and investigations by the ICTR, which all pointed at Kanombe”. To the government, the latest report therefore, unlike the Jean-Louis Bruguière one in 2006, exonerates the RPF/A of any responsibility in the shooting down of the plane. Although the report does not categorically state so, but says the missile that brought down Falcon 50 carrying Habyarimana and President Cyprian Ntaryamira─who had sought a lift came from Camp Kanombe. The conclusion, according to the government is that those who controlled the barracks-FAR and French troops are responsible.

In talk-show on Rwanda Television and Radio Rwanda last Saturday, Dr Jean Damascene Bizimana, who was a member of the Mucyo Commission and later the Mutsinzi Commission, echoes the government’s position that the Trévidic report vindicates findings of the Mutsinzi commission. The same position was taken by Professor José Kagabo; also a member of the Mucyo Commision. However, government critics, including Habyarimana’s son, Jean Luc Habyarimana and former RPF Secretary General turned dissident Theogene Rudasingwa, among others vehemently reject the idea that the report exonerates the RPF or President Kagame. Therefore, while it’s possible that the issue of who shot down and killed Habyarimana might not be politically dead, in judicial terms, it is likely that the indictments ordered against nine senior RDF by former judge Bruguière might be rescinded by judge Trévidic. If this eventually officially takes place, it will be a great political victory for the RPF, president Kagame and his government.

The Bruguière report and its consequences
Judge Marc Trévidic is the man who replaced Judge Bruguière and charged with continuing and looking into the validity of Bruguière findings.
On November 17, 2006, Judge Bruguière had released a report that categorically accused former RPA/F senior officers, including its then leader and now President Paul Kagame of committing the crime. At the time, Bruguière called on the ICTR to try Kagame. He also sought permission from the French prosecution authority to issue indictments to nine senior RDF officers. Three days later, on November 20, the Paris Prosecution authority agreed and issued the arrest warrants.

In the arrest warrants, Bruguière claims that “The destruction of the presidential aircraft triggered an insurrection and a climate of extreme confusion giving rise to numerous rumours concerning the origin of the attack” which, “…immediately triggered a violent reaction by Hutu extremists which directly led to the genocide of the Tutsis minority”. By claiming that the downing of the plane “triggered an insurrection” and not genocide and then goes on to say this “directly led to the genocide…” critics of Bruguière and his methods claim this is a denial of genocide. That he did not set foot where the crime was committed and all his witnesses are either dissidents or individuals with a bone to pick with the Kagame government did not help matters.
Those who perished in the plane, besides former Presidents Juvẻnal Habyarimana and Cyprien Ntaryamira of Burundi, include Dẻogratias Nsanzimana who was chief of staff of the FAR, Col Ellie Sagatwa, who was a director in the president’s office charged with military affairs, Maj. Thaddẻe Bagaragaza, Juvẻnal Renzaho, who was foreign affairs’ advisor to the president, Emmanuel Akingeneye, personal doctor to President Habyarimana, Bernard Ciza, the Minister For Planning of Burundi and Cyriaque Simbizi, the Minister For Communications of Burundi. Also perishing in the plane was the French crew, including the pilot Jacky Heraud, co-pilots Jean-Pierre Minaberry and flight engineer, Jean-Marc Perrine.

Widows and relatives of the crew together with the Habyariman family brought the case before the French judicial authority seeking justice. After eight years of investigations, critics say playing politics with the investigations, judge Bruguière concluded that “Testimony provided by witnesses, particularly Tutsi members of the F.P.R., former members of this political movement and former soldiers of the A.P.R., including members of the personal guards of Paul Kagame, investigations undertaken and material evidence gathered particularly with respect to the missiles establish that Paul Kagame, with members of his staff, conceived, meticulously planned, recruited soldiers charged with carrying it out and supervised the execution of this operation following the Arusha Agreement of August 1993”.

With this conclusion, he proceeded to indict nine very senior former RPA and now RDF officers. They include Gen James Kabarebe (current minister of Defence), Lt. Gen. Faustin Kayumba Nyamwasa (now in exile in South Africa), Lt. Gen. Charles Kayonga (current CDF), Gen. Jack Nziza, Sam Kaka, Rose Kabuye, Jacob Tumwine, Franck Nziza and Eric Hakizimana. As is clear, targeting the military hierarchy in this way was interpreted back in Kigali as some a kind of mini coup d’état for Rwanda. No wonder then that upon the release of the Trẻvidic report that contradicted the basis of the indictments, the BBC reported that, “Kagame ‘cleared of Habyarimana crash”.

President Kagame, while addressing members of the Leadership Fellowship last week also acknowledged that he was happy with the new findings. He however added a caveat by saying that “While I am happy with the findings and everybody in this country seems to be very excited, I am not excited,” the President said. “The reason is simple – have we been waiting to be cleared by a French judge? Were we, all along, waiting to be absolved (of any wrongdoing) by a foreign judge?”

The effect of the Bruguière report
The Bruguière report and consequent indictment of nine former RPA and now very senior RDF military officers caused major ripples within the political and diplomatic hierarchies not only in Rwanda and France, but across the European continent and beyond. The effect of issuing arrest warrants was immediate and profoundly consequential. Only four days after issuing arrest warrants on November 20, 2006, the Kigali government gave the French envoy in Kigali 24 hours to leave the country and closed down the embassy; including the French Cultural Centre in the heart of the City.

At the time, opinion was divided on whether or not the decision to severe all diplomatic relations was wise. Some quarters feared this would bolster France’s resolve to isolate Kigali and increase its support for dissidents. Others, including the President believed the issuance of arrest warrants against almost the entire top leadership of the RDF was aimed at intimidating, silencing and crippling the capacity of RPF to govern and was some kind of coup d’état and could not be tolerated. So, he had to act; and act boldly.

And the arrest warrants were not only curtailing senior military officials from doing their work by not traveling, but European countries seemed keen to enforce them. Their first casualty was retired Lt. Col Rose Kabuye who was arrested at Frankfurt Airport on 9 November 2008 on her way to prepare President Kagame’s visit to Germany. In a show of defiance, when asked whether she could be tried in Germany or be extradited to France, she chose the latter. Today, charges against Rose have been dropped─another political and diplomatic victory for the Kigali establishment.

Further, within a space of less than a year following the release of the Bruguière report, Rwanda had commissioned another commission of inquiry into the shooting down of president Habyarimana’s plane. This is what came to be known as the “Mutsinzi Commission” headed by former Supreme Court President Jean Mutsinzi. It was set up on 16 April 2007 and charged with investigating Habyarimana’s plane crush and who was responsible.
Less than a year later, on August 5, 2008, another independent commission released its report into the role of France in the 1994 genocide. This commission was chaired by former Minister of Justice and now head of the Genocide Commission, Jean Mucyo. The Mucyo Commission, which held public hearings and publicised the French’s alleged role in the 1994 genocide was also profoundly unsettling to the French political and military establishment.

First, during public hearings, eye witnesses accused the French military of varied crimes including rape, training militias and manning roadblocks where interahamwe militias targeted Tutsis for slaughter. Remarkably, at the conclusion, the Mucyo commission named 33 senior French and military officials as well as political leaders, including current French Foreign Minister Alain Juppé; former President Mitterrand and his top aid Dominique de Villepin, his General Secretary at the time Mr. Hubert Védrine; his Prime Minister Edouard Balladur, among others. This act was heavily embarrassing and unsettling to the French government. On top of this, insiders tell me that the French were aware that the Rwandan government was planning, if they didn’t counter Bruguière indictments, to issue their own indictments against named French military officials and political leaders, including its current Foreign Minister.

It seems the thought of a small land-locked country, formally part of its “sphere of influence” indicting its officials, and the likely embarrassment it would cause, more than expelling its envoy was too much for the French to stomach. This seems to have forced the French political establishment, particularly President Sarkozy and his close allies to soften and agree to re-establish diplomatic relations and political cooperation. Thus, it is possible to say that although very much hated in Kigali, Bruguière did far more good to Rwanda than has been examined. What has so far been the focus is his questionable methodology and zeal to incriminate former RPA senior officers and the RPF.

The less investigated side of the consequence of the Bruguière report and indictments is that it served to demystify French power and taking away the fear factor from the Rwandan establishment. That Rwanda belled the cat is not something many, including the French expected. For the French, are said to have been, since the end of the genocide undermining the Rwanda government variously with limited response from Kigali. By openly choosing to fight the French government, the Rwandan government did what no other government had ever done in Africa. It set a precedent.

While most humans are gripped by the fear of failure, God and death and most European governments these days fear terrorism and unemployment than anything else, most African governments by far fear the developed world or their former colonial masters more than anything else. This makes the humiliation France faced of giving its envoy 24 hours and publicly naming her officials as genocide perpetrators and rapists unprecedented. Rwanda was setting a ‘bad’ example to the French satellite states on the continent to act likewise. The key problem for France then was how to stop Rwanda from doing so or succeeding. Was France going to go native and continue using force or hard power or was it going to adopt a less hardline stand and cooperate with Kigali?

Both options would be costly, and perhaps embarrassing at the same time. Now the French authority, headed by President Sarkozy decided to take a less hardline but politically and diplomatically humbling stand. On balance then, if there are things Rwanda has done that have earned her and her citizens genuine respect from foreigners, it is the humbling of France by expulsing her ambassador, closing down the embassy and commissioning an investigation that publicly named French political leaders and military officers’ individual involvement and responsibility in the genocide.

This act, and consequent reopening of diplomatic relations based on mutual respect, will, when history is written in future among the best. This watershed moment ranks along two other Kagame actions that seem to have brought immeasurable respect to Rwanda. The first is the defeat of the Ugandan forces in Kisangani in three battles and the fight against corruption. The first qualified the Rwandan army as supreme and helped shed off any lingering questions about the determination of Rwandan leaders to be their own bosses (before then, some Ugandan military officials underrated Rwandan officials). On the other hand, the fight against corruption has earned Rwandese respectability to the extent, for example that some foreign countries do easily accept Rwandan driving permits in case their holders want to change─because they believe they are genuine.

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