JURIST Guest Columnist Jean-Marie Kamatali of Ohio Northern University Pettit College of Law discusses the benefits of investigating French officials’ role in the Rwanda Genocide…

On November 29th the Prosecutor General of Rwanda released a statement announcing the start of a formal criminal investigation of 20 French government agents/officials in the 1994 genocide against the Tutsi in Rwanda. Although this statement did not give the names of the officials under investigation, the fact that it came following the release by the Rwanda National Commission for the Fight against the Genocide (CNLG) [PDF] of a list of 22 French military and diplomatic officials for their involvement “as direct perpetrators or as accomplices” in the genocide indicates the link between these two announcements.

The list established by the CNLG is very elaborate. It contains names and titles of each person as well as their detailed contribution in genocide. Among the high profile officials on this list include General Jacques Lanxade, France’s Army Chief of Staff from April 1991 to September 1995, General Christian Quesnot, Special Chief of staff of President Mitterrand from 1991 to 1995, and General Jean-Claude Lafourcade, the top commander of the French forces engaged in Turquoise, France’s intervention in Rwanda from June 22 to August 22, 1994. The involvement of these officials ranges from supporting the pre-1994 Rwandan army through military training and supplying them with weapons, to training, arming and shielding the Interahamwe militias, the forces behind the 1994 Genocide.

The release of this list by the CNLG and the announcement of the General Prosecutor of Rwanda have been viewed by some as a retaliation by the Rwandan government against France’s recent announcement to reopen its investigation on the April 1994 shooting down of the plane that killed everyone on board including the then Rwandan President Habyarimana, the Burundian President Ntalyamira as well as its French pilots. This shooting marked the beginning of the Genocide. In early October 2016 two French investigating magistrates, Nathalie Poux and Jean-Marc Herbaut, announced the reopening of this investigation although in July 2014 judge Marc Trévidic had closed it by reversing the conclusions of his predecessor, judge Jean-Louis Bruguière. The latter had concluded that Paul Kagame, the current president of Rwanda ordered the shooting of this airplane.

No matter the political reasons behind the Rwanda General Prosecutor’s announcement, two observations are clear: First, the details and documentation included in the CNLG list proves that Rwanda has been, for a long time, working on gathering evidences against its targeted 20 French citizens and officials, and therefore the General Prosecutor’s announcement should not be dismissed as just a retaliatory act; Second, if the judiciary of both these two countries can cooperate in this investigation&#8212both sides have committed to this&#8212they are both likely to benefit from its outcome.

The French military’s involvement in Rwanda has been well recorded both in France and Rwanda. In its 1998 fact-finding report the French Parliamentary Commission admitted that the 1990 French military intervention in Rwanda which was initially aimed at protecting French citizens was redirected to “help the governmental forces indirectly by giving them technical assistance and weapons so as to prevent the Tutsi-dominated Rwandan Patriotic Front from winning.” The 2008 Government of Rwanda report known as “Mucyo Report” illustrated with much specifics, however, that France’s role was more than indirect in its help to governmental forces. The report details France’s direct participation in the fighting and involvement in the training of the Interahamwe militias, who are the notorious ring leaders in genocide; and France’s sustained support to the regime it knew was involved in genocide. This report was followed in 2010 by another Government of Rwanda’s report known as “Mutsinzi Report,” which had concluded that the hardliners in the Genocide regime are responsible for shooting down the presidential airplane.

Obviously no one should expect the French government to easily accept Rwanda’s accusations. Genocide is a very serious crime, a crime of crimes, with several legal and political consequences. That’s why no country or individual can freely admit to it. The establishment of such an extreme crime is better left to courts. It should, therefore, surprise no one if Rwanda, after numerous unsuccessful political and diplomatic attempts to bring the attention to France on its role in Genocide, is taking the only path remaining: The court option. In pursuing this option Rwanda had two alternatives: Bring France before the International Court of Justice (ICJ) to determine its responsibility in Genocide or indict French officials/agents based on the available evidence of involvement in Genocide.

Although the first path could be more direct and effective, it is also likely to be the most difficult. The reluctance of the ICJ to be persuaded in the Bosnia and Herzegovina v Serbia and Montenegro case, in which the Bosnia and Herzegovina knew about Serbia’s involvement in Genocide and had much clearer facts in the case, proves the challenges Rwanda was likely to confront should it have privileged the ICJ path. In this case, although the ICJ found that Serbia violated its obligation to prevent genocide, it ruled that Serbia has neither committed genocide nor incited or acted as an accomplice in the Bosnia and Herzegovina’s genocide.

Bringing domestic courts to determine the individual criminal responsibilities of French officials/agents in the Genocide is therefore the best alternative. Rwanda is currently seeking to investigate these officials/agents for their role as “perpetrators or accomplices” in the Genocide. Rwanda should, however, consider broadening the net to include their role in “aiding and abetting” in Genocide, war crimes, and crimes against humanity. As the International Criminal Tribunal for Rwanda (ICTR) has stated in the Akayesu case, “[C]omplicity requires a positive act, i.e. an act of commission, whereas aiding and abetting may consist in failing to act or refraining from action.” Both the ICTR and the International Criminal Tribunal for the Former Yugoslavia (ICTY) have plenty of jurisprudence on this crime. For example In the Blagojevic and Jokic case the ICTY Trial Chamber held that aiding and abetting genocide is defined by the following element (s) “the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal that had a ‘substantial effect’ on the commission of the crime.” The ICTR in the Bagilishema case has held that this support may be deducted from the high regard the perpetrator of genocide put on the person accused of aiding and abetting. Furthermore, in the Blaskic case, the ICTY Appeals Chamber agreed with the the Trial Chamber statement that “the actus reus of aiding and abetting may be perpetrated through an omission, ‘provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea.” The facts included in the “Mucyo Report” and numerous pictures of French soldiers being cheered by the Interahamwe militias are sufficient to build an indictable case for French soldiers/officials in aiding and abetting genocide.

Obviously Rwanda should not expect France to extradite its citizens to Rwanda. Although no law specifically forbids France from extraditing its citizens, France has consistently responded to foreign extradition calls that “France never extradites its citizens.” This is not, however, a serious handicap because under the principle of aut dedere aut prosequi, if France is not willing to extradite its suspects, it has the duty to prosecute them. Already, one person on the list established by Rwanda, is being investigated by the French justice: Captain Paul Barril who has been described as military advisor of Rwanda in 1994 and was involved in an arms deal with the regime responsible for genocide. Since 2013 Captain Paul Barril has been the subject of investigation by the Tribunal de Grande Instance de Paris for Complicity in Genocide. With the recent French offer to cooperate with the Rwanda National Public Prosecution Authority in its investigation, the list of people under investigation by this tribunal is likely to increase.

Now that the judiciary machinery has been ignited, it is hoped that diplomacy and politics will let it take its course in determining the individual responsibility of each French officer under investigation and how high this responsibility ascends in the French chain of command. The results of this investigation and possible prosecution by either Rwanda or France may not bring these two countries to a perfect relationship but at least it will set a forum in which those on this list could clear their names and for the victims and survivors to have justice. Furthermore, France’s responsibility in the Genocide against the Tutsi could be established or cleared and therefore allow both countries to move forward with a shared legal narrative on what really happened during the pre-April 1994 French military cooperation in Rwanda.

Jean-Marie Kamatali teaches International Human Rights Law, Legal Issues in Transitional Democracies, International Comparative NGO Law, and Immigration and Nationality Law at Ohio Northern University Pettit College of Law. After the 1994 Rwanda Genocide, Professor Kamatali was appointed dean of the only law school in Rwanda at that time. In this position he oversaw the rebuilding of the legal education system in Rwanda and was involved in the institutional and legal reform of the post-genocide Rwanda, including Gacaca system, constitutional and legal reform as well as national reconciliation.

Suggested citation: Jean-Marie Kamatali, Investigating French Officials’ Role In Rwanda Genocide Beneficial to Rwanda and France, JURIST – Academic Commentary, Dec. 18, 2016, http://jurist.org/forum/2016/11/Jean-Marie-Kamatali-Rwanda-Genocide.php