Dear Mr. Prosecutor,
We write in response to your letter dated June 22, 2009 concerning the status of your office's investigation of Rwandan Patriotic Front (RPF) crimes. As you recall, Human Rights Watch wrote to you on May 26, 2009 before your briefing to the Security Council urging you to announce your intention to pursue these cases before the closure of the International Criminal Tribunal for Rwanda (ICTR). We take this opportunity to respond to certain points raised in your June 22 letter.
Status of ICTR Investigations
In your letter you state, "The suggestion that no investigations or prosecutions have been conducted or that since has been delayed against RPF members due to the threat of non-cooperation from Rwanda is not borne out." Please be advised that Human Rights Watch has never claimed that the Office of the Prosecutor failed to conduct investigations of crimes committed by the RPF in 1994. We are keenly aware of investigative efforts taken since you took office in 2004 and have assisted you in the gathering of such evidence. However, our concern is that none of the investigations has led to prosecutions before the Tribunal.
Your statement that the Government of Rwanda has not threatened or suspended cooperation with the Tribunal since resumption of RPF investigations in 2004 does not persuasively show the Government's commitment to justice for victims of these crimes. One reason for the Rwandan government's decision not to threaten or impede your work could be that you have not brought the investigations forward to the indictment stage.
Justification for Indictments of RPF Crimes
In response to your assertion that the decision to indict will not be based on "extraneous considerations or feelings of maintaining ‘balancing acts' by indicting ‘all sides' to the Rwandan armed conflict," we are not asking you to engage in a "balancing act." We request that you execute your mandate to "prosecute persons responsible for serious violations of international humanitarian law" and that you act on credible evidence of serious crimes committed by senior RPF commanders which we believe your office has gathered. The reported killing of 30,000 people by RPF soldiers, as documented by the United Nations High Commission for Refugees, is by any standard sufficiently serious to merit prosecution.
Prosecution by Rwanda of RPF Crimes
In your letter, you state that you want to set the record straight with respect to cases your office has transferred to Rwanda for domestic prosecution. You state that the Kabgayi case, involving the killing of 15 civilians (13 of whom were clergy) in June 1994, was not the first or only case that you transferred to the Rwandan prosecutor general. We recognize that you have transferred other files to Rwanda, but all of these files have involved alleged génocidaires and not RPF members. The Kabgayi case was the first time you entrusted the Government of Rwanda with prosecution of its own RPF forces, a matter in which the Government obviously has a different incentive to seek justice.
You assert that the Kabgayi case is not the only instance of RPF soldiers being prosecuted by Rwandan military courts for crimes committed in 1994. We concur with this statement, but we would qualify it by stating that this is the first case in which RPF soldiers were tried in Rwanda on serious allegations commensurate with the gravity of the actual crimes. As we documented in our July 2008 report "Law and Reality: Progress in Judicial Reform in Rwanda," the Government of Rwanda has prosecuted 32 RPF soldiers for their conduct in 1994. Most of those convicted were ordinary soldiers or of lower ranks and received relatively lenient punishments. The Government of Rwanda pursued these killings as aberrational, spontaneous acts of misconduct by low-level soldiers rather than actions carried out on the orders of senior commanders. In Rwandan government documents listing these cases, the crimes were called "crimes of revenge" or "human rights violations," not war crimes or crimes against humanity, and were prosecuted as violations of the Rwandan penal code. A more useful test of the Rwandan government's commitment to delivering justice for the victims of RPF crimes would be to assess whether prosecutions have targeted any senior level commanders.
We question your statement that your office does not possess evidence showing that the Kabgayi killings were a planned military operation. Human Rights Watch has found ample evidence to support this understanding of the facts, and we have done so with fewer resources than are available to your office. We described this evidence to you on March 23, 2009 when we met in Arusha.
According to our investigation and as relayed to you, senior RPF military commanders ordered 13 clergy members and their entourage to be moved on June 5, 1994, from Ruhango, a place where they were under international attention - essentially assuring their safety - to the remote Novitiate of the Josephite Brothers in Gakurazo, Kabgayi. Commanders then sent away the RPF soldiers who had been guarding the seminary and its few remaining refugees, and a team of military intelligence officers were brought in to surround the seminary. In the evening, around 6:30 or 7:30 pm, an RPF officer summoned those who had arrived that morning to a meeting in the refectory, allegedly to discuss the security situation. The 13 clergy members and several other persons, including at least four women and two children, were present.
The officer had just begun speaking, in the presence of another soldier, when two other soldiers entered the room abruptly. One of these soldiers pushed the four women and one child to leave the room. Unfortunately, a 9-year-old boy remained seated on the lap of an elderly priest. Armed soldiers were outside the refectory with guns pointed in through the open windows. The shooting began and continued until a whistle blew, at which time it immediately stopped. No other shots were heard after that time.
The officer in charge then summoned others outside the room to return and showed them the bodies. The officer proceeded to assemble those persons and others present at the seminary in front of the chapel, a short distance from the refectory. He explained to the group that a soldier, driven mad by grief at the deaths of his relatives, had just committed the killings and had then committed suicide. He briefly pointed his flashlight at a mass on the ground, saying it was the body of the assassin. It was dark, and the light was insufficient to determine if the mass was an actual corpse or merely a pile of military clothes.
We made these points to you during our March 23, 2009 meeting, and gave you specific names of senior RPF officers whom we believed were involved in both the ordering and the execution of the killings. Through this evidence, we laid out a compelling argument that calls into question the Rwandan prosecution's theory that the killings were spontaneous acts by low-level soldiers and shows instead that this was an attempt to cover up responsibility for a planned military operation.
Your assertion that the Office of the Prosecutor observed every proceeding of the Kabgayi case is not accurate. Human Rights Watch observers were present at every hearing. Knowing both your Kigali-based trial observer and your Arusha-based senior legal advisor, we were in a position to note their presence or non-presence in the courtroom. While the reports of your observers were supplemented with the written record of the proceedings and a video recording of the trial, we maintain that your office did not diligently monitor the proceedings. It is our view that had your office consistently and closely monitored the trial, the observer would have come to the same conclusion that we did, namely, that the case was not vigorously prosecuted and did not pursue the evidence suggesting a planned military operation ordered by more senior level commanders.
While two junior commanders were prosecuted in the trial in Rwanda, the prosecutor did not pursue more senior commanders who had been involved in the military operation and against whom evidence exists. Without targeting these more senior officers - indeed by pursuing a theory of the case suggesting that there was no more senior culpability, the Government of Rwanda cannot be said to have meaningfully tried those persons with greatest responsibility for the Kabgayi killings. Given that failure, we believe you have the duty to seek indictments for these individuals.
Fair Trials and Fulfillment of the ICTR's Mandate
We disagree with your contention that there is an inconsistency on our position with respect to fair trials. Asserting that suspected génocidaires may face difficulties in securing witnesses or having an impartial arbiter and that RPF suspects of war crimes may be given leniency due to political interference in the judiciary is fully consistent. The underlying principle is that judicial decisions should be based on evidence, not political influence or other considerations. Human Rights Watch is as concerned about individuals being unfairly acquitted as it is with individuals who are wrongly convicted.
We continue to believe that your mandate as Chief Prosecutor at the ICTR will not be fulfilled until you pursue all senior commanders responsible for atrocities committed in Rwanda in 1994. Your office has successfully pursued many senior leaders behind the genocide, but the same cannot be said for senior RPF commanders who directed the slaughter of 30,000 civilians. The fact that other génocidaires are still at large is important but does not negate the need for the ICTR to pursue senior commanders allegedly involved in serious crimes from all sides. It would be a failure of justice - not merely victor's justice - if you do not vigorously investigate and prosecute senior RPF officials because they are currently senior officials or military leaders in Rwanda.
Accountability is the key to fighting impunity, as you state in your letter. However, delivering justice in unfair trials does not serve this goal. We, too, believe that domestic prosecutions are better at fighting impunity than international trials because they involve the local population in the judicial process and can have a larger impact on affected communities. Yet the Government of Rwanda has a strong incentive not to pursue senior RPF officials who directed crimes in 1994 - many of whom may be currently senior government or military officials. Unfortunately, the choice is not between international and domestic justice but between international justice and impunity. You are in a unique position to take a stand against impunity and to ensure accountability for these crimes. We hope you will reconsider your failure to date to do so.
We again ask you to recall the Kabgayi case from Rwanda and to re-prosecute it according to international fair trial standards or, in the alternative, to prosecute senior RPF commanders who directed these killings and who have not been prosecuted but against whom there is strong evidence. We also urge you to prosecute other senior RPF commanders who led similar military operations in other parts of the country in 1994 and against whom the ICTR has evidence. The recent extension of the Tribunal's mandate until the end of 2010 affords an opportunity for such prosecutions to take place. Failure to do so will taint perceptions of the Tribunal's impartiality and undermine its legitimacy for years to come.
We thank you for your attention to this pressing matter.
 Each prosecution is described in detail in annex 2 of the report, for a total of 32 prosecutions. Our compilation is based on documentation provided by the Rwandan government. Your assertion of 42 prosecutions most likely includes prosecutions of RPF soldiers for events that took place in the years after 1994.
 The Kabgayi area, where the Gakurazo seminary is located, had already fallen under RPF control on June 2, 1994.