Judge Bruguière’s report : a mockery of ethics and law

Posted: September 25, 2010 in Genocide Denial
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Dr. Jean Damascène Bizimana

On 17 November 2006, French investigating judge, Jean-Louis Bruguière, who is also first vice-president of the Paris Regional court, filed an order and notification to proceed to the Public Prosecutor in his jurisdiction to issue international arrest warrants against nine Rwandan nationals. On 20 November, the Office of the Prosecutor gave the green light to Judge Bruguière, and come 23 November, in the evening, the arrest warrants were officially endorsed.

Besides self-importance, contempt and cynicism that are manifest on every page of the order, the Bruguière report contains scandalous errors of evaluation and abuses of process about which we would like to express our opinion. We certainly can say that the opposite would have been surprising, considering that Judge Bruguière and his employers have never hidden their enmity and hatred for the President of the Republic of Rwanda and his closest collaborators. However, that this judge should reach the point of issuing international arrest warrants based on lies, rumours and false testimony is abuse of law with malicious intent.

1. One-sided investigation in favour of the prosecution

According to French law, the mission entrusted to an investigating judge is to look for the objective truth. This requires investigation on the prosecution side and the defence side by keeping in mind all elements establishing the guilt of the accused person and the guilt of those who plead in favour of his/her innocence. As for the Bruguière report, what emerges is that objectivity is the least of his concerns. Nothing in its conclusions shows that he has acted objectively to establish the truth, as the law requires him to do.

A careful reading of his order shows very clearly that he investigated only in one direction, that of the prosecution, very obviously inspired by a strong wish to find the Rwandan leaders guilty. There is no element in the report that shows that in the course of his investigations, he tried to consider any elements of evidence in defence of those persons. Never had he tried to question the suspected persons. Never had he wanted to go to the crime scene to compare evidence gathered with the facts on the ground. Assuming even that he did not want or did not dare to go to Rwanda, rightly or wrongly, why did he not set up a rogatory commission to this effect? He just investigated where he wanted, questioning only those who had answers he wanted to hear.

There is a second problem with the investigation from the procedural point of view, that he did not examine the credibility of witnesses, as is the usual practice during investigation and trial. Indeed, Judge Bruguière limited himself to a single-minded procedure of examining only witnesses who reinforced his preconceived judgement, without trying to know whether these witnesses could be manipulating the truth to their own advantage. Moreover, some of them have admitted that they fled Rwanda after being convicted and condemned for various crimes.

Judicial logic would have demanded that Judge Bruguière, while keeping the evidence of Ruzibiza and company, if he considered them necessary for the establishment of the truth, should have examined them in the light of the serious acts they acknowledge having committed. If this judge frankly wants to give justice to the relatives of the flight crew who perished in the crash, who are the plaintiffs, how come he did not interview under caution Ruzibiza and company who confessed to having participated in the downing of Habyarimana’s plane? On the contrary, he accuses those who are not even indicated as having been anywhere near the crime scene. It appears, with regard to this observation, that Judge Bruguière is inspired either by bad faith, or political motives to the detriment of the law.

Other witnesses of Judge Bruguière are defectors and dissidents of the RPF or known opponents of the Rwandan Government who live in exile, often having been smuggled out of Africa by French secret services who cover their living expenses. We are referring here to asylum-seekers who are allowed to stay in France on condition of giving false testimony against RPF and the Rwandan Government. The Bruguière report is largely founded on such testimony.

Worse still, another category of Judge Bruguière’s witnesses consists of genocide suspects, detained and tried by ICTR (Bagosora, Renzaho, Ntabakuze…) or still at large (Aloys Ntiwiragaba, one of the current leaders of the armed wing of FDLR). Naturally, such people can say nothing good about the leaders of RPF who defeated them and prevented from finishing their macabre plan for a genocide without survivors. For Ntiwiragaba, it is even worse since he is at the head of a military wing in Congo, which has never abandoned its genocide aims.

After all is said and done, when a judge supposed to carry out an objective investigation contends himself with declarations from biased people and totally excludes any evidence to the contrary, the matter is no longer a genuine judicial inquiry, but political manipulation of facts to serve propaganda aims. From the legal point of view, such absence of a balanced investigation constitutes a procedural defect that may justify a request to nullify the investigation, unless the investigating judge can prove, using the collected evidence, that he was even-handed in the investigation.

However, with the issue of international arrest warrants, the persons accused cannot challenge the procedure without physically appearing before Judge Bruguière or his successor, with the immediate risk that the latter would issue a committal order, which ipso facto would result in their imprisonment, in spite of their presumed innocence. By issuing the international arrest warrants, Judge Bruguière surely sought to humiliate Rwanda’s leaders whom he incriminates, to the point of hoping to see them in a French dungeon. Reading his order gives the impression of a biased investigation whose findings and ultimate orientation were predetermined.

2. An investigation without discretion or respect for the presumption of innocence

Article 11 of the French Code of criminal procedure stipulates: (…) «without prejudice to the rights of defence, during an inquiry or investigation the proceedings must remain secret». Nothing can be clearer than this text on the obligation of the investigating judge to be discreet. In this case, however, Judge Bruguière made an exception since not only was his investigation conducted publicly, but also its conclusions were prematurely revealed and published in the press, in total disregard of the regular procedure of discreetly transmitting the case file to the Office of the Public Prosecutor.

It should be recalled that several articles appeared in the leading newspaper in France, Le Monde, just before the tenth commemoration of the genocide of Tutsi in Rwanda. The paper alleged that certain high-ranking Rwandan personalities had been implicated in the crash of Habyarimana’s plane, citing Judge Bruguière’s investigation as the source of information, which means that this judge had illegally revealed the contents of his case file to the press.

In effect, the newspaper Le Monde in its issue of 10 March 2004, published a long article entitled « Revelations on the assassination which triggered off the Rwandan genocide» in which it was said that « the anti-terrorist judge Jean-Louis Bruguière completed his investigation on the crash of President Habyarimana’s plane on 6 April 1994». The author of the article, Stephen Smith, without naming the judge, wrote that « Le Monde could consult the final report, which attributes responsibility for the plane crash to the Rwanda Patriotic Front (RPF) of General Kagame, now in power in Kigali ».

The day before, it was the Catholic Daily La Liberté de Fribourg (Switzerland), which, basing itself on the revelations of Le Monde, had published an article quoting Le Monde almost word by word. Specifically, Le Monde and La Liberté attributed the responsibility for genocide of Tutsi to the Rwandan Patriotic Front, chaired by Paul Kagame. According to Le Monde, the report was dated 30 January 2004 and contained 220 pages. The order, which has just been made public, contains only 64 pages, which means that a huge part of the real contents of charges brought against the accused persons is known only to a privileged few in the French secret service.

Throughout the genocide commemoration months of March to May 2004, Le Monde regularly made attacks against Rwanda’s Head of State, Paul Kagame, citing the conclusions of Judge Bruguière, which were still sub judice. These recurrent attacks based on leakages made by Judge Bruguière in violation of his obligation to be discreet, created a negative image in the press against the Rwandan leaders who were publicly accused of a crime, with no respect for legality of the procedure for criminal inquiries. It is not only a reprehensible departure from usual procedure in France, but also a serious injury to the Rwandan leaders accused in violation of their right to be presumed innocent before their guilt is proven. Moreover, as everybody knows, the presumption of innocence is one of the main pillars not only of French criminal law, but also adopted by all legal systems throughout the world.

  1. Infringement of diplomatic immunity

Among the Rwandan leaders accused by Judge Bruguière, there are those who have immunity from criminal prosecution in accordance with the Vienna Convention of 18 April 1961 on diplomatic relations, which came into force on 24 April 1964. Such is notably the case for Rwanda’s Head of State and the Ambassador of Rwanda to India, General Kayumba Nyamwasa. Both benefit from personal immunity and immunity from legal proceedings.

The International Court of Justice stresses the imperative necessity to respect the rule relating to diplomatic privileges and immunity and has recently specified their nature and extent. In a ruling on 14 February 2002, in settlement of a dispute between the Democratic Republic of Congo and Belgium, the Court said that for the duration of their functions, Heads of State, the Minister for Foreign Affairs and other diplomats in function have immunity from criminal prosecution and are completely inviolable abroad. That is the way it is whether those persons are in another country in an official or private capacity. The Court noted that this immunity covers actions before and during tenure of their respective offices, whether the actions are public or private.

Finally, the Court makes no exception to this principle in international law. It means that heads of state and diplomats cannot be subjected to the jurisdiction of the host nation or of any other country, even of ad hoc international criminal courts, except maybe by abduction as it happened some years ago in the case of Slobodan Milosevic, former President of Yugoslavia.

In accordance with this rule, the Rwandan Head of State cannot be legally subjected to any form of arrest or imprisonment. Any attack on his person, freedom or respectability is prohibited by international law[1]. Moreover, it should be clearly noted that the immunity of Heads of state and diplomats extends to civil and administrative jurisdictions as well as criminal jurisdictions. In view of that, we cannot help thinking that the manoeuvre undertaken by Judge Bruguière in the Security Council asking it to oblige the Prosecutor of the ICTR to institute proceedings against the President of Rwanda constitutes a political issue rather than a legal one.

Besides, ICTR did not hesitate to denounce the activities of Judge Bruguière. In fact, during a press conference held in Arusha, the spokesman of the Court, Everard O’ Donnell, said very clearly that in the context of international law, « the ICTR Prosecutor does not take instructions from anyone in the world ». The ICTR Statute stipulates that the Prosecutor’s office is completely independent. It is free to prosecute without instigation from anyone or any country. According to Article 15 of the statute, « (…) The Prosecutor shall act independently as a separate organ of the International Tribunal for Rwanda. He or she shall not seek or receive instructions from any government or from any other source ». A word to the wise is enough!

This French smudge shows that even the recent request by one Rusesabagina, also seeking for President Paul Kagame to appear before the ICTR has no legal meaning or basis. There is no doubt that his request is manipulated by the same circles which act behind Judge Bruguière or by their accomplices. It is high time France learnt to clean its own house. Since it shelters enough genocide suspects on its territory it should first put them on trial instead of unfairly attacking the heroic fighters who put an end to genocide.

4. Denial of genocide or absolution of the killers

The final scandalous action by Bruguière is his conclusion that President Paul Kagame ordered the shooting down of Habyarimana’s plane, and that consequently, it is Kagame who started the genocide of Tutsi. What a terrible insult! We were accustomed to hearing genocide ideologues hurling such silly remarks, but this time when they come from a judge supposed to know the law, it is downright revolting. Is it the crash of the plane of the late president that created the militias, RTLM and all the tools used in the perpetration of genocide? Is it the crash that bought and distributed machetes? No, frankly some people should stop uttering nonsense. Genocide cannot just happen under any circumstances without premeditation or a genocide ideology. The law is very clear on this point. Let us make a brief analysis.

With regard to the Convention of 9 December 1948 on prevention and suppression of the crime of genocide, genocide is defined as an act carried out with the intention of destroying in all or part a national, racial, ethnic or religious group. The crime of genocide therefore requires the existence of an intention to perpetrate the crime against one of the four groups mentioned above. In other words, there is no genocide in the absence of a specific intention to commit it. To maintain, as Bruguière does, that it is a plane cash that led to genocide amounts to saying that the extermination of Tutsi was a spontaneous act without premeditation.

Such a proposition has important legal consequences since it denies the genocide of Tutsi and makes it unintentional or unpremeditated manslaughter, or at worst ordinary crimes against humanity. The logical consequence of such an aberration is that the authors of genocide are absolved from the crime of genocide and charged with lesser crimes. It is what defence advocates have always argued before the ICTR, trying in vain to deny the genocide in Rwanda interpreting it in terms of war crimes.

Fortunately, there is a precedent in international case law, a very important historical ruling, from the trial of Jean-Paul Akayesu, which shall henceforth act as a constant reference in genocide. In this trial, the ICTR expressly rejected the proposition that the genocide of Tutsi was the result some kind of spontaneous anger. The ICTR made its ruling in these terms: « the genocide was organized and planned not only by members of RAF, but also by political forces under the umbrella of Hutu power, and was perpetrated mainly by civilians, especially armed militiamen and even ordinary citizens; and the vast majority of the Tutsi victims were non-combatants, among whom thousands of women and children, or even the unborn. The fact that this genocide was perpetrated when the RAF was fighting with RPF would under no circumstances serve as a pretext for its occurrence [2]».

After all is said and done, with regard to international law, the existence of deliberate action is a precondition for genocide to be established. As regards the genocide of Tutsi, the existence of this intention is a fact generally recognised, and recently confirmed by the ICTR Court of Appeals, by sending a clear warning to all those who are in denial of genocide, many of whom are defence advocates before that court. Nobody should therefore dare to do what Bruguière did: attempt to make people believe that it is the plane crash that led to genocide. The extermination of Tutsi is not the consequence of that crash; it consisted of planned, calculated and deliberate actions that cannot habitually be done without knowing their probable consequences. As reiterated by the ICTR in the Kayishema/Ruzindana case, « actions of this type do not result in general from an accident nor even from simple negligence » regardless of what Judge Bruguière and his cronies say.

Kigali, 26 Novembre 2006

[1] See article 29 of the Vienna Convention

[2] See ICTR, AKAYESU judgment, paragraph 18

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