Introduction
The prosecution of Colonel Théoneste Bagosora by the International Criminal Tribunal for Rwanda (ICTR) marks a significant chapter in the quest for justice against high-ranking military figures involved in the 1994 Rwandan genocide. Serving as the director of cabinet for Rwanda’s Ministry of Defence, Bagosora was found guilty of genocide, crimes against humanity, and war crimes based on the principle of superior responsibility. To truly grasp the context of the Rwandan genocide (1), it is crucial to comprehend the historical and political forces which energized ethnic divisions within the nation. Prior to colonialism, Hutu Tutsi differences were predominantly socio economic, rather than fixed ethnic identities. The people of Rwanda viewed themselves as part of a single nation, the Banyarwanda, united by a common language, cultural traditions, and religious beliefs, which challenged the idea of deep-rooted ethnic animosity (2). However, Belgian colonial policies in the 20th century reshaped these social categories, effectively creating ethnic identities that had not existed in such strict forms previously. This set up an artificial structure that would later be manipulated for political gain. Unfortunately, the ICTR’s ruling did not fully take this historical shift into account, sometimes treating the more recent ethnic divisions as if they were long-standing historical truths (3).
Bagosora’s perspective on Rwandan history reveals how narratives were weaponised to justify genocide. He describes the Tutsis as “naturalised Nilotic immigrants” who were once met with “a warm welcome and excellent hospitality” from the Hutus, only to later betray and enslave them (4). This characterisation painted the Tutsis as inherently cruel and deceitful outsiders with no rightful place in Rwandan society. Such a perspective offered a deeply distorted view of Rwanda’s history, framing the Tutsis as foreign invaders who oppressed the native Hutus, which only intensified hatred and justified violence against the Tutsi population. The paper delves into the manner in which Bagosora manipulated historical narratives to rationalise the violence against the Tutsis and examines the role of international justice mechanisms, such as the ICTR, in either addressing or neglecting these complex historical backgrounds while adjudging the issue. Through this analysis, a critical look is offered at the limitations of international tribunals when it comes to tackling the underlying causes of ethnic violence. It emphasises the need to recognise history as both a mode of oppression and a means of accountability in the realm of post-conflict justice.
Assessing Command Responsibility: Article 6(3) in the Bagosora Trial
The tribunals established following World War II, when military commanders were held responsible for the actions of their subordinates, are where the concept of command responsibility originated. Article 6(3) (5) of the ICTR Statute formally established this principle, stating that evidence of a superior-subordinate relationship, the superior’s knowledge of the crimes, and their refusal to prevent or punish those wrongdoings must all be presented. The key criterion for military leaders was “knew or should have known,” emphasising the need for commanders to closely monitor their soldiers. A more detailed knowledge of Rwanda’s history might have improved the Tribunal’s assessment of whether Bagosora “knew or had reason to know” about the atrocities committed by his subordinates.
Théoneste Bagosora’s prosecution set an important precedent for the application of command responsibility. Bagosora was the highest authority in the Ministry of Defence and exercised control over the Rwandan Armed Forces, the most powerful entity at the time in the Rwandan government. The difficulties in assigning command responsibility when formal and informal authority structures coexist were clarified by the Chamber’s scrutiny (6). According to Bagosora’s defence, he did not have command power over military activities because he was the Director of Cabinet. However, by arranging meetings with the general staff, giving directives that were carried out, and facilitating dialogue among military and civilian institutions, the prosecution successfully demonstrated his actual power (7). Later, the Appeals Chamber changed parts of the conclusions, determining that Bagosora was more responsible for the crimes perpetrated at the roadblocks in Kigali under Article 6(3), than he was for ordering those crimes under Article 6(1) (8). This contrast highlighted how difficult it is to demonstrate superior accountability against direct command in complicated order-driven systems. The precedent established in the Prosecutor v. Akayesu (9) case, which stressed the value of genuine authority over merely titles, was in line with this ruling. But when it came to considering the larger political backdrop, the ICTR’s rulings showed a very ambivalent stance. Prosecutors managed to prove that Bagosora was completely aware of the awful circumstances that were taking place all around him. They supported this with evidence from eyewitness reports, radio transmissions, and his presence at key sites, such as the barricades in Kigali (10). His claims of ignorance were dismissed by the Chamber, which held that someone in his high-ranking position could not have remained ignorant given the scope and systematicity of the killings.
Informal Power Networks and Ethnic Manipulation in Post-Independence Rwanda
The court’s findings failed to mention how Rwanda’s post-independence authorities deliberately deepened ethnic divides in order to acquire power. Presidents Grégoire Kayibanda (1962–1973) and Juvénal Habyarimana (1973–1994) utilised the Hutu-Tutsi divide to gain support among the Hutus following independence. They created a legal and social structure that privileged Hutus and marginalised Tutsis, rather than repairing the harm caused by colonial control. Although the official language shifted from discussing race to discussing ethnicity, theprofound exclusion of Tutsis persisted, concealed behind claims of unity and patriotic slogans (11).
Colonel Théoneste Bagosora’s proximity to the centres of power demonstrates how the genocide was planned and executed with the aid of unauthorised networks. He was able to enter and access the Akazu, a small, exclusive group that functioned as a shadow state, due to his family’s connections to President Habyarimana’s wife (12). Bagosora was able to communicate with influential people outside of his official position as cabinet director in the Defence Ministry owing to that relationship. These connections enabled him to command soldiers and make important decisions outside of the established channels, demonstrating how competing control networks undermined the nation’s constitutional system. The extent to which these clandestine networks had infiltrated the government was apparent in the genocide. Orders proceeded by covert routes based on personal connections and devotion rather than the customary paper trails (13). Instead of following instructions from the official line of state power, local chiefs in prefectures and towns followed orders to murder that came from unofficial command circles frequently associated with the Akazu. This illicit network allowed militia groups to get firearms without going through the army’s usual supply routes. Even the placement of roadblocks and identity card inspections followed plans created by these associations rather than the official security agencies (14).
Bagosora had a profoundly ideological influence that extended beyond logistics. He was instrumental in creating a concealed military organisation dedicated to upholding Hutu supremacy as one of the founding members of AMASASU (Alliance des Militaires Agacés par les Séculaires Actes Sournois des Unaristes). This group actively promoted radical ideologies among military personnel, planned acts of violence against political opponents, and sought to thwart democratic reforms (15). But the efficacy of legal interpretations about superior responsibility was ultimately hampered by the ICTR’s inability to properly understand how these informal groupings functioned both alongside and inside state institutions. Despite having no formal authority, Bagosora quickly assumed power after President Habyarimana’s jet was shot down on April 6, 1994 (16). Although having no legal status, the crisis committee he established was approved by both foreign ambassadors and military authorities. The world community’s prompt acknowledgement of the committee’s authority revealed how far informal networks had infiltrated the official recognition procedures. Despite having no formal mandate, foreign diplomats began to regard committee members as though they had legal standing (17).
There were several significant analytical and legal gaps as a result of the ICTR’s failure to investigate the intricacies and effects of informal networks. The tribunal missed the true dynamics of power and decision-making in Rwanda by focusing excessively on formal hierarchies. In addition to eluding constitutional authority, these covert structures were essential in the genocide’s preparation and execution while presenting a picture of official legality. Recognising these unofficial government structures that allowed individuals like Bagosora to wield considerable authority behind the scenes is essential to comprehending the genocide. Although the terms used to describe these groups changed from “racial” to “ethnic,” the underlying prejudice that remained in public perceptions and governmental regulations was not eliminated by this linguistic shift.
The Construction of the Hutu Race Theory And Security Dilemma
The transformation of Hutu intellectual discourse represents one of the most striking examples of how colonised individuals can appropriate and subvert the ideological frameworks once used to oppress them. According to the Hamitic theory, Hutus were deemed inferior Bantu farmers during Belgian colonial rule, while Tutsis were considered the racially superior descendants of Hamitic peoples (18). A rigid social order that favoured Tutsis in politics and the economy was established by this racial hierarchy, which was ingrained in education, government, and policy. The colonial racial narrative was turned upside down when Hutu intellectuals developed what became known as the “Hutu race theory” in reaction. They reinterpreted racial ideology as a tool for self-defence and emancipation rather than rejecting racial disparities. By portraying the Tutsi claim to superiority as baseless, this new viewpoint turned the idea of Hutu inferiority into justification for Hutu political dominance. Tutsis were reframed as alien invaders who had unlawfully taken over the Hutu land and power, rather than as indigenous elites (19).
Michael Mann’s concept of the security dilemma serves to explain the widening racial divide. Similar to nations, ethnic groups in this situation strengthen their own identities and defences in response to perceived threats, thus increasing tensions unintentionally. Hutu identity was defensively strengthened as a result of Tutsi identity being shaped as politically dominant by Belgian colonial policy (20). Tutsis used this forced ethnic differentiation as a means of surviving. The terrible outbreak of genocidal violence was made possible by this cycle of response and counter-reaction, which fostered escalating polarisation as each side saw the other as a threat.
Even though these historical and theoretical insights are quite relevant, the ICTR’s judgment in Colonel Théoneste Bagosora’s case didn’t fully incorporate them into its legal reasoning. Bagosora, who was found guilty for not preventing or punishing the atrocities committed by his subordinates, operated in a context influenced by shared ethnic ideologies that went beyond just military hierarchies. His authority was bolstered by deeply ingrained beliefs that depicted Hutus as protectors against centuries of Tutsi aggression. A more comprehensive historical analysis would have shown how past massacres of Tutsis, which Bagosora justified as retaliation, created a long-standing pattern of rationalising violence in the name of ethnic self-defence. This atmosphere contributed to normalising impunity and allowed future crimes to occur without challenge.
These frameworks are still very much relevant today, especially in South Asia. For instance, the Bangladesh International Crimes Tribunalhas undergone a significant transformation, particularly after the August 2024 uprising that led to Prime Minister Sheikh Hasina’s exile. Originally set up in 2009 to address war crimes from the 1971 liberation war, the tribunal has now turned its attention to investigating allegations against Hasina herself for crimes against humanity during a harsh crackdown on protesters that resulted in several deaths (21). This twist wherein the architect of a justice system becomes the subject of its scrutiny mirrors the narrative and institutional shifts observed in Rwanda. The situation in Bangladesh highlights how ethnic and political identities in South Asia can be quite fluid, changing rapidly based on who’s in power (22). The security dilemma comes into play, considering the Awami League’s authoritarian tactics, which included enforced disappearances and extrajudicial killings—sparking widespread fear and resistance (23). This resulted in a heightened sense of mutual threat between the government and the opposition. As seen in Rwanda, the identity-based insecurity has led to a perilous cycle of violence (24). Understanding these dynamics is crucial for preventing similar tragedies. Ethnic conflict is not driven by age-old hatreds; rather, it’s shaped by group fears, political manipulation, and the weight of historical memory. Political entrepreneurs and ethnic elites often exploit collective trauma, myths, and grievances to deepen divisions and justify repression.
Analytical Inconsistencies in Contextual and Comparative Approaches at the ICTR
While many cases at the International Criminal Tribunal for Rwanda (ICTR) were primarily focused on pinpointing individual criminal responsibility, others, like the Media Case (Prosecutor v. Nahimana et al.) (25), took a wider lens by exploring how propaganda influenced Rwanda’s political landscape. This inconsistency in tackling political and contextual factors highlights a problem in the ICTR’s approach, as it failed to have a uniform system for weaving historical and ideological elements into the ambit of legal reasoning. A cohesive and thorough strategy would have boosted the Tribunal’s effectiveness, especially if it had utilised theoretical frameworks that shed light on how ethnic divisions were created and exploited in Rwandan society. On the flip side, the International Criminal Tribunal for the former Yugoslavia (ICTY) often displayed a better understanding of political dynamics in the manner of decisions taken and made. Cases like Prosecutor v. Tadić (26) and Prosecutor v. Milošević (27) delved deeply into Yugoslavia’s political fragmentation and the impact of nationalist rhetoric in sparking ethnic violence. These cases reflected an integrated legal approach that acknowledges the political roots of mass atrocities. The work of the ICTY, while diverse across its various chambers, made significant contributions to international law. The Tadić case, for example, played a crucial role in clarifying the legal differences between international and non-international armed conflicts, which is a key development in international humanitarian law. But unfortunately, ICTY’s decisions were occasionally compromised by miscommunication and manipulation in local media, which was heavily influenced by ongoing ethno-nationalist narratives. Additionally, the overall impact of international prosecutions was modest and gradual, in nature instead of being revolutionary (28).
Future tribunals need to consider how ethnic ideologies and historical contexts influenced command dynamics. This suggests that the methods for assessing effective control in complex conflict situations must be refined. By establishing dedicated research units within tribunals, judges could gain valuable insights into the socio-political dynamics that underpin various crimes. These units shall produce detailed reports on historical injustices, political frameworks, and societal tensions that lead to atrocities. The tribunals should increasingly lean on expert testimony from historians, sociologists, and political scientists during trials. Such insights can help link individual accountability with broader systemic issues, ensuring that decisions reflect a deeper understanding of how crimes are orchestrated and facilitated.
Another key step is to develop structured analytical frameworks. These would assist judges in evaluating command responsibility within larger aspects, like state-sponsored propaganda or institutional discrimination. By formalising these considerations, tribunals can more effectively analyse the relationship between individual actions and systemic factors while keeping judicial neutrality intact. Implementing these strategies would boost the ability of international tribunals to deliver justice in challenging cases like Bagosora’s. While it’s vital to hold individuals accountable, it’s just as important to tackle systemic issues to prevent future atrocities. By integrating historical and political elements into legal judgments, tribunals can ensure that justice goes beyond simply punishing offenders and addresses the root causes of crimes against humanity and genocide.
Conclusion
The significance of holding people responsible for major international crimes is well demonstrated by the Bagosora case. However, it is important to remember that genuine justice must also address the significant structural problems that enable these atrocities to occur in the first place. Legal rulings that include the political and historical context can provide a more comprehensive picture of what happened, assisting us in identifying and addressing the underlying causes of crimes against humanity and genocide. In addition to punishing the guilty, this all-encompassing strategy is essential for averting further tragedies and promoting peace. By recognising the underlying factors that lead to violence, tribunals can provide justice that is not only essential but transformative, ensuring that we learn from the past rather than just merely recording it.
References
3. Mathieu Blondeel, Beyond the Postcolony? Investigating the Possibility of Genocide Recurring in Contemporary Rwanda, Master’s Thesis, Universiteit Gent 2015.
