Why UN Judge denied early release of Genocide architect Bagosora

Bagosora’s crimes were grave in the extreme, not only because of their heinousness nature, but because of devastation they precipitated and his key role as a mastermind of the Genocide against Tutsi

On April 1, Judge Carmel Agius, President of the International Residual Mechanism for Criminal Tribunals (IRMCT), or the Mechanism, issued a decision denying early release to Théoneste Bagosora, a senior military officer in the regime that planned and executed the 1994 Genocide against the Tutsi, in Rwanda.

The motivation of the judge's decision was premised on the fact that although the prisoner was eligible for early release, the extremely high gravity of his crimes weighed very heavily against it. The ex-FAR Colonel serving a 35 year prison sentence in Mali since July 2012 was arrested in March 1996 in Cameroon.

In December 2008, the Trial Chamber of the now defunct International Criminal Tribunal for Rwanda (ICTR) found him guilty of genocide and other crimes against humanity as well as rape and sentenced him to life imprisonment. In December 2011, the Appeals Chamber, then presided over by the controversial Judge Theodore Meron, reduced his sentence to 35 years of prison.

Bagosora, who filed a petition for early release in March 2019, would have served two-thirds of his 35-year sentence by June 2019 and thus eligible to be considered for early release. But after carefully consulting two other judges, the President noted, there was agreement that the application be denied in light of the exceptional gravity of the crimes Bagosora was convicted of and an absence of sufficient demonstration of his rehabilitation.

"I also consider his failure to sufficiently demonstrate rehabilitation as militating against granting the Application. Finally, there is no evidence before me that demonstrates the existence of compelling humanitarian grounds which would warrant overriding this negative assessment," reads part of the President's decision.

According to the UN court, Bagosora is criminally responsible for genocide, for murder, extermination, rape, persecution, and other inhumane acts as crimes against humanity, among his other crimes.

The Trial Chamber emphasised that between April 6 and 9, 1994, he was the highest authority in the Ministry of Defence and exercised control over the armed forces.

There is no doubt that he was one of the main, if not the most important, person in Rwanda at a time during which members of the military - and Interahamwe and other militia working with them as an auxiliary or complementary force - participated in a widespread and systematic campaign of slaughter and targeted political assassinations.

Among other crimes, Bagosora bears superior responsibility for the systematic killing of prominent personalities and opposition political figures on the morning of April 7, 1994. These include Prime Minister Agathe Uwilingiyimana, killed by forces under Bagosora’s authority, before she could speak to the population through a radio address the UNAMIR commander was trying to organise for her that morning.

Bagosora had actual knowledge that his subordinates were about to commit these crimes and he did not prevent them. In the hours and days that followed, horrific crimes were perpetrated on the Tutsi civilians across Kigali.

“The toll of human suffering was immense,” as stated by the Trial Chamber. “Simple murder was compounded with extreme brutality and cruelty” and people seeking refuge “were herded to places of worship, such as Gikondo Parish, before being brutally killed.

Earlier, during the peace talks held in Arusha, Tanzania, from mid-1992 to mid-1993, Bagosora said he was returning home to prepare an apocalypse if the peace accords were implemented.

Unconvinced Bagosora has been rehabilitated

In Judge Agius' view, it is not appropriate to look at the rehabilitation of perpetrators of Genocide, crimes against humanity, or war crimes through exactly the same paradigm as rehabilitation of perpetrators of ordinary domestic crimes.

For instance, he noted, while good behaviour in prison may generally be a positive indicator of rehabilitation in a national context, given the particular nature and scope of the crimes within the jurisdiction of the Mechanism, "I do not consider that such behaviour can on its own demonstrate rehabilitation of a person convicted for some of the most heinous international crimes."

Bagosora’s behaviour in prison was also carefully assessed; looking at things such as acceptance of responsibility, signs of critical reflection, and genuine expressions of remorse.   Bagosora offered no indication that he had accepted responsibility for the crimes he was convicted of. And there were no signs that he expressed any remorse or regret.

To the contrary, all the judge saw in Bagosora’s submissions were arguments aimed at minimising responsibility for his crimes. "I am entirely unconvinced that Bagosora has been rehabilitated," reads the judge's overall assessment.

The government of Rwanda - which repeatedly urged the IRMCT to consider that one of the critical factors in assessing a request for early release is the gravity of crimes for which the prisoner was convicted - welcomed the April 1 decision.

Rwanda's Ministry of Justice noted, in a tweet, that Bagosora’s crimes were grave in the extreme, not only because of their heinousness nature, but because of the devastation they precipitated and his key role as a mastermind of the Genocide against Tutsi.

"Were it not for his actions, the worst might well have been avoided," the Ministry said. Rwanda's views in opposing Bagosora’s release were that granting his application would cause irreparable harm to the victims of his crimes.

Kigali emphasised that just as Rwandans find solace in the knowledge that the Mechanism continues to hold chief perpetrators of the Genocide accountable for their actions, they are deeply unsettled by the prospect of inappropriate early release.