Consecration of the Inequality of the Parties and Arms before the International Criminal Tribunal For Rwanda (ICTR)

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Consecration of the Inequality of the Parties and Arms before the International Criminal Tribunal For Rwanda (ICTR)

Pierre Claver Mupendana

The article is dedicated to the criticizing of some aspects of the International Criminal Tribunal for Rwanda's activities. Therefore statutes and rules of pro-cedures on the issue of inequity of the parties there are considered. Attention is drawn to the structural inequality between the parties to the trial, which en-shrines the equality of the parties before the International Criminal Tribunal for Rwanda, making any trial held on this basis unfair.

Keywords: the International Criminal Tribunal for Rwanda, Rules of Proce-dure and Evidence, prejudices the Defense, International Criminal Law

Стаття присвячена критиці деяких аспектів діяльності Міжнародного кримінального трибуналу по Руанді. Зокрема, розглядаються питання несправедливого розподілу повноважень сторін, закріплених в статутах та процедурних правилах. Звертається увага на порушення принципу рів-ності між сторонами процесу перед Міжнародним кримінальним трибуна-лом по Руанді, що робить будь-який судовий розгляд, що проводиться на цій основі, несправедливим.

Ключові слова: Міжнародний кримінальний трибунал по Руанді, упереджене ставлення до сторони захисту, звід правил з проведення процедур та надання доказів, головний обвинувачувач, міжнародне кримінальне право

Summary

arms international criminal tribunal

The article is dedicated to the criticizing of some aspects of the International Criminal Tribunal for Rwanda's activities. Therefore statutes and rules of procedures on the issue of inequity of the parties there are considered. Attention is drawn to the structural inequality between the parties to the trial, which enshrines the equality of the parties before the International Criminal Tribunal for Rwanda, making any trial held on this basis unfair.

Starting from the very beginning, the Security Council, by creating the International Criminal Tribunal for Rwanda, endowed it with statutes and rules of procedure which were to enshrine the inequality of the parties before the Tribunal and the inequality of arms. These legal instruments have reserved for the Prosecutor ex-orbitant powers, which have made the latter the central organ of the Tribunal, despite the usual precedence of the Judges: throughout the proceedings, the Prosecutor always saw himself as an actor who rose above the judges. Therefore, there are considered these two founding texts to discover this consecration of the inequality of parties and arms before this international jurisdiction.

After analysis taken on the Rules of Procedure and Evidence, it became obvious, that the Prosecutor acts, as the case may be, as an organ of the Tribunal or as an accuser, with these two roles often being confused and giving the Prosecution a distinct advantage over the Defense. The conclusion is that such mix of roles results in a structural inequality between the parties to the trial contrary to the prescriptions of the Statute, which enshrines the equality of the parties before the International Criminal Tribunal for Rwanda. This makes any trial held on this basis unfair, in violation of several articles of the Statute.

As an organ of the Tribunal, the Prosecutor works closely with the Judges of the Tribunal. It is important to note that, as such, he actively participates in creating the rules of procedure, in particular through amendments, a large part of which is initiated by his Office, a prerogative not recognized by the Defense. This legislative function allows the Prosecutor to influence the direction of the law governing the conduct of proceedings, which puts him in a position of strength in relation to the Defense. This inequality is all the more prejudicial to the Defense as the Prosecutor does not have an express obligation to give evidence for both prosecution and defense.

In the article there is quite a long list of potential and current misapplications of the Prosecutor's status and roles: The Prosecutor considers himself to be above the law (i.e. The Prosecutor wears two hats, that of an organ of the Tribunal and that of a party to the trial); Refusal to respond in writing to written defense requests; Discrimination in the procedure for hearing applications; Frequent violation of time limits for submitting requests; Systematic violation of the rules of disclosure of evidence; Structural inequality of the Parties; Cookie tampering policy; Unlimited surveys strategy; The undue prolongation of the pre-trial detention of the accused concerned; the distortion of the principle of the presumption of innocence; Fatigue which induces the complacency of judges; the negative effects on the production of Defense witnesses; The difficulty of adequately preparing the defense; The use of low maneuvers to weaken the Defense and strengthen the Prosecution; Cooperation with States to the Prejudice of the Accused; Discriminatory use of the media; Dehumanization of the accused and lack of a policy of reparation and rehabilitation.

With all these irregularities, it is become questionable - whether it is possible to believe in the fair and im-partial nature of the trials organized and the judgments handed down by the International Criminal Tribunal for Rwanda, if it is possible to confirm the independence of this Tribunal? This is therefore the type of justice that the Security Council and the United Nations system have offered to the Rwandan people, to Great Lakes Africa and especially to the new discipline of International Law: International Criminal Law.

The Security Council, by creating the International Criminal Tribunal for Rwanda, endowed it with statutes and rules of procedure which were to enshrine the inequality of the parties before the Tribunal and the inequality of arms. These legal instruments have reserved for the Prosecutor exorbitant powers, which have made the latter the central organ of the Tribunal, despite the usual precedence of the Judges. Throughout the proceedings, he always saw himself as an actor who rose above the judges. I, therefore, invite the reader to decipher with me these two founding texts to discover this consecration of the inequality of parties and arms before this international jurisdiction.

Indeed, according to the Rules of Procedure and Evidence, the Prosecutor acts, as the case may be, as an organ of the Tribunal (art. 10 of the Statute) or as an accuser (art. 15-18 of the Statute and art. 37 of the Rules of Procedure and Evidence). These roles are often confused and give the Prosecution a distinct advantage over the Defense. This results in a structural inequality between the parties to the trial contrary to the prescriptions of Article 20.1 of the Statute, which enshrines the equality of the parties before the International Criminal Tribunal for Rwanda. This makes any trial held on this basis unfair, in violation of Article 19.1 and Article 20.2.

As an organ of the Tribunal, the Prosecutor works closely with the Judges of the Tribunal. It is important to note that, as such, he actively participates in creating the rules of procedure, in particular through amendments (art. 6 of the Rules), a large part of which are initiated by his Office, a prerogative not recognized by the Defense. This legislative function allows the Prosecutor to influence the direction of the law governing the conduct of proceedings, which puts him in a position of strength in relation to the Defense. This inequality is all the more prejudicial to the Defense as the Prosecutor does not have an express obligation to give evidence for both prosecution and defense. It should be noted that he even refuses, in practice, to fulfill the obligation to return the material in his possession of interest to the Defense, in accordance with Article 68 of the Rules of Procedure and Evidence. It always requires that the accused concerned first prove the existence of such material or establish the link between it and his trial. The Judges always give him their support on this subject. Thus, Chamber III, seized by Kabiligi, refused to order the Prosecutor to carry out additional investigations into the attack on President Habyarimana's plane on the pretext that the Defense had not established the link between this attack and the trial of Mr. GratienKabiligi1.

The Prosecutor refused with impunity to comply with certain rules of procedure or practice of the Tribunal while the Defense is still severely sanctioned for this. The inequalities between the parties are found in particular in the following procedures: 1) the practice of written responses to Defense requests; 2) order of hearing of requests according to the order of filing and urgency or according to the principle "first came, first served"; 3) time limits for presenting applications at first instance or on appeal; 4) provision of documents or disclosure of evidence; 5) compliance with the time limits for the disclosure of witnesses; 6) compliance with the agreements agreed between the parties; 7) collaboration with the Registry Services; 8) provision of human and financial resources; 9) privileged cooperation between the Prosecutor and States, inter-governmental organizations, NGOs, political figures or human rights activists, as well as with the media. All this is done to the detriment of the rights of the accused, subject ex officio by his detractors and even by all the organs of the Tribunal, to the regime of the presumption of guilt and, in their understanding, not deserving any consideration or ease.

The Prosecutor considers himself to be above the law

The Prosecutor wears two hats, that of an organ of the Tribunal and that of a party to the trial. He takes advantage of this privilege to believe himself above the law. This is how he constantly violates, with impunity, the Statute and the Rules or that he often offers erroneous interpretations of them that the Judges find it difficult to refuse. Otherwise, he refuses to implement the decisions of the Judges which are unfavorable to him without being sanctioned in any way.

Several cases of violations have gone unpunished, including those linked to irregular arrest procedures. The most glaring case is that of Mr. Esdras Twagirimana arrested in Nairobi on July 18, 1997, during the so-called NAKI operation. He was mistaken for Shalom Ntahobari, but was illegally detained for two months after his arrest. The Prosecutor has never been blamed for this. And for a good reason, the right to defense was denied to Mr. Esdras Twagirimana, who was also arrested be Kenyan police, his country of asylum, as soon as the ICTR Prosecutor released him. Amnesty International mentioned this case in one of its reports. Other violations were the subject of complaints to the Tribunal but without the Prosecutor suffering the slightest reproach even though the Judges admitted his responsibility. In the particular case of Jean-Bosco Barayagwiza, the Prosecutor was severely sanctioned by the judgment of November 3, 1999, but the Appeals Chamber was forced to reverse its decision in its judgment of March 31, 2000, following enormous political pressure. Although violations of his fundamental rights were recognized in both judgments, the Prosecutor was able to obtain his continued detention despite his blatant responsibility for these violations. The monetary compensation or the reduction of sentence decided by the Appeals Chamber could in no way constitute an adequate remedy for the unlawful and arbitrary deprivation of liberty and do not constitute sanctions directed against the Prosecutor. Finally, the Prosecutor was able, once again, to avoid a probable sanction following the refusal of the Appeals Chamber to examine, on the merits, the Defense request for revision of its judgment of March 31, 2000, based, according to the results of the investigations of the principal counsel of Jean-Bosco Barayagwiza, on falsified documents or obtained fraudulently by the Prosecutor.

The question relating to the arbitrary and abusive interpretation of the Statute and the Rules of Procedure will be examined below. As a rule, the Judges only adopt the position stated by the Prosecutor. They dare not contradict him, except in very rare cases. Judge Taffazzal Hossain Khan was the first, in an important case, to oppose the Prosecutor's interpretation of certain articles of the Statute and Rules of the Tribunal. By his decision of March 31, 1998, he refused to accept the views of the Prosecutor on the interpretation of Articles 15, 18.1, 19.1, 20.4 (c) of the Statute; 47, 50 and 62, of the Rules of Procedure and Evidence concerning the junction of Bagosora and 28 other detainees1. The Appeals Chamber upheld Judge Khan's ruling . However, sometime later, Judge Khan's mandate was not renewed, as he wanted to continue his mission. Some Tribunal officials suggest that there is a link between his forced departure and his decision-making against the Prosecutor's strategy based on what he called the "Mega Trials". After Judge Khan left, the Prosecutor's requests for joint trials based on the "Cartel” or "Conspiracy” began to rain. They were received without the judges requiring the Prosecutor to provide a prima facie case for the existence of this "Agreement”. The second important case in which the Judges have dared to oppose the Prosecutor's erroneous interpretation of certain articles of the Statute and the Rules is the Barayagwiza case. Indeed, by its Judgment of November 3, 1999, the Appeals Chamber thwarted the Prosecutor's vision in particular of Articles 8, 17, 19, 20, and 28 of the Statute, as well as that of Articles 40, 40 bis, 47, 50 and 62 of the Tribunal's Rules of Procedure and Evidence. However, following political pressure and blackmail from the Government of Rwanda, firmly supported by the Prosecutor, the Judgment of November 3, 1999, was revised on the basis of incorrect or false information provided by the Prosecutor and following an incorrect interpretation of these facts in relation to the Statute (Article 25) and the Rules of Procedure and Evidence (Articles 120 and 121).

On several occasions, the Prosecutor refused to execute the decisions of the Chambers, but no sanction was imposed. In rare and insignificant cases where the Judges have taken decisions favorable to the Defense and upset the Prosecutor, the latter has always managed not to put them into practice, either by ignoring them superbly or by asking the stay of execution until he finds a way to make them obsolete, in particular by timely amendments.

Thus, for example, in the case of the Prosecutor against Ferdinand Nahimana - ICTR-96-11-I, - the Prosecutor refused to execute the decisions of Chamber I imposing on him the modifications of the indictment until what he asks for the modification of this indictment which rendered null and void the decisions ren- dered. The same scenario has been reproduced in other cases, notably in the case of the Prosecutor against Aloys Ntabakuze relating to the return of seized items which were no longer necessary for the Prosecutor's investigations.

The case of Eliezer Niyitegeka is the most illustrative of the contempt the Prosecutor holds for the decisions of judges and for the rights of the Defense. In this case, the Prosecutor did not hesitate to ask the judges to stick a sanction to the Defense who dared to file a request highlighting its persistent refusal to comply with the decisions of the Chamber and requesting the rejection of the act charge and the release of the accused. Oddly, Chamber II came close to sanctioning the Defense for filing a motion similar to a previous motion, although this was due to the Prosecutor's continued refusal to abide by the decisions of the Chamber. She warned the Defense that if she filed a similar motion in the future, she would be sanctioned. Against the Prosecutor, the Chamber issued only a simple warning which is not, in itself, a sanction. It then adopted yet another decision asking it to respect previous decisions.

In the case of Joseph Kanyabashi and Elie Ndayambaje, who joined as part of the "Butare Group”, Chamber II never wanted to sanction the Prosecutor for his refusal to execute his decisions despite complaints from the Defense1. It was only following serious and unfounded accusations of contempt of court against the Defense of Joseph Kanyabashi and Sylvain Nsabimana, still in the context of the "Groupe de Butare" trial, that Chamber II, this time, issued a warning to the Prosecutor under Rule 46, A) of the Rules , but without going so far as to impose sanctions against the magistrate concerned. Yet sanctions were imposed, without prior warning, and in a discriminatory manner, on Defense Counsel, not for violation of the law or refusal to comply with the decisions of the judges, but on the pretext that they had filed inadmissible or frivolous applications. In reality, it is to intimidate them and to prevent them from making full defense of their clients.

In the case of the Prosecutor against Georges Rutaganda - ICTR-96-3-T, the Chamber ruled that the costs incurred “in the context of the preparation and elaboration of a manifestly inadmissible request are neither necessary nor reasonable". The judges drew the attention of the Registry to this so that it could take appropriate action. Later, to legalize this form of intimidation to the Defense, the Judges adopted, during their VII Plenary Meeting, a rule sanctioning a Defense counsel for a request deemed "fanciful" by the Chamber or constituting, according to it, "An abuse of process''.

Thus, Me Clйment Monteroso, Counsel for Aloys Ntabakuze (ICTR-97-30-I), was himself punished on several occasions, without prior warning, for requests deemed to be fanciful on the basis of retroactive decisions in violation of the Article 6 (C) of the Rules.

One of Barayagwiza's counsel was sanctioned, without prior warning, for a request deemed inappropriate by the Judges of Chamber I. At the request of the Prosecutor, the Judges admitted that the motion for incompetence presented by the Defense of Barayagwiza was coming back, without reason, on decisions already taken by the Trial Chamber and the Appeals Chamber. Their decision ignored the new elements presented by the defense relating, among other things, to jurisdiction rationae personae which had not been the subject of any decision. Yet the Trial Chamber rejected the questioning of the honesty of Prosecutor Bernard Muna, whom the Barayagwiza Defense accuses of having provided the Appeals Chamber with documents forged or obtained under fraudulent conditions. For its part, the Appeals Chamber refused to consider these accusations against Mr. Bernard Muna and his collaborators by rejecting, without examination on the merits, the Request for revision and / or re-examination of the Judgment of March 31, 2000 presented by the Defense of Barayagwiza. She did not even care whether the allegations that the Prosecutor had misled the Judges were really founded. It was limited to the procedural aspect at the risk of a denial of justice to the Appellant.

Refusal to respond in writing to written defense requests

While the practice in the Tribunal is that a party to the trial must respond as soon as possible, in writing, to the requests presented by the other party, the Prosecutor often takes months to respond to the Defense requests or does not give not even bother to answer it. This attitude is never sanctioned by the Judges while it prejudices the Defense. Indeed, such delays prevent Chambers from considering, within a reasonable time frame, Defense requests and this translates into corresponding delays in trials. Virtually all cases before this Tribunal have suffered such delays without any sanction being reserved for the Prosecutor. Worse still, these delays in the Prosecutor's responses may lead Chambers to decide to deem theDefense requests to be null and void to the detriment of the interests of the accused when the fault lies with the Prosecutor.

The fate of the applications presented by the Defense in the case "the Prosecutor against Jean-Bosco Baray- agwiza" may serve as an illustration of such unequal treatment of the parties. The following motions were presented by the Barayagwiza Defense:

* Defense request in extreme urgency for an order for the immediate release of Jean Bosco Barayagwiza (Request in HABEAS CORPUS), filed on September 29, 1997.

* Urgent Defense Motion for Orders directing the review and / or set aside of the suspect's arrest and pre-trial detention, filed on 23 February 1998.

* Urgent Defense Motion to quash the indictment for procedural errors, filed February 23, 1998.

* Defense motion to order the Prosecutor to disclose relevant evidence and material as well as the identity of prosecution witnesses, filed on March 16, 1998.

* Request for a guarantee of the right to defense, filed on May 18, 1998.

* Motion for clarification of terms and expressions used in the indictment filed on May 22, 1998.

The HABEAS CORPUS request never received a response from the Prosecutor. Consequently, no Chamber of the Tribunal took an interest in it. A month after the Defense filed the motion, the Registry removed it from the list and no longer thought about rescheduling it. This was appealed by the Defense. The Appeals Chamber recognized, in its judgment of November 3, 1999, that the rights of the Appellant were violated and sanctioned the Prosecutor for this, while the Trial Chamber had done nothing despite the grievances of defense. However, the judgment of March 31, 2000 nullified the sanction imposed on November 3, 1999. The Prosecutor did not submit a response to the extremely urgent request for an order requiring the review and / or annulment of the arrest and provisional detention of the suspect, filed by the Defense on February 23, 1998, until his examination by the Trial Chamber on September 11, 1998, approximately 7 months later! This attitude of the Prosecutor was noted by the Trial Chamber itself, but without any sanction. Rather, it was the Appeals Chamber which, after noting the breach by the Prosecutor in the practice of the Tribunal, considered it to be negligence on his part and sanctioned it within the framework of the judgment of 3 November 1999. Unfortunately, this sanction imposed on November 3, 1999 was also reduced to nothing by the judgment of March 31, 2000.

The refusal of the Prosecutor to answer the request on the guarantee of the right to defense, introduced for urgent examination, rendered the request without object, the reasons which motivated its filing having ceased to exist! The Defense was forced to withdraw this request on October 18, 1999 before the Prosecutor deigned to react 20 months after the filing of the request by the Defense! As a result, the accused suffered irreparable harm which was never sanctioned.

Following the authorization to amend the indictment granted to the Prosecutor on April 11, 2000, Trial Chamber I, on April 14, 2000, declared null and void the other three requests listed above, in the occurrence, the request on formal defects, on the disclosure and on the precision of the terms and expressions, while ac-knowledging that the Prosecutor had not filed any response several months after their filing by the Defense. It is not clear why she chooses to punish the accused rather than punish the one who violated the practice of the Tribunal and thus contributed to the undue delays in the proceedings.

Discrimination in the procedure for hearing applications

The Tribunal practices unnecessary discrimination in respect of the order of hearing of motions according to the order of filing or the urgency of necessity. Thus, by its decision of April 14, 2000, Chamber I rejected the three requests mentioned above, considering them to be moot - they related to an indictment which had just been amended three days before, April 11, 2000, - following excessive delays in their examination. Indeed, the same Chamber had examined on October 19, 1999, in the oral hearing, then in the briefs submitted by the two parties, the amendment of the indictment of October 23, 1997 proposed by the Prosecutor. The motion for amendment was filed by the Prosecutor on June 28, 1999, more than a year after the last of the three Defense motions was filed! The Chamber thus, through incomprehensible discrimination, gave priority to the Prosecutor's request filed more than a year after those of the Defense. While the Prosecutor should be sanctioned for refusing to comply with the practice of responding to the opposing party's requests, he was instead rewarded by the unsolicited rejection of the Defense requests!

Frequent violation of time limits for submitting requests

The presentation of certain requests is subject to time limits. This is the case in particular for preliminary rulings which, according to article 72, A), "must be raised within thirty days following the communication by the Prosecutor to the defense of all the documents provided for in article 66 A) i) ". The time limit for appealing an exception to jurisdiction is 7 days (art. 72, E). Experience has shown that the Prosecutor almost fails to meet his obligations with regard to disclosure deadlines. But he is never sanctioned. On the other hand, when the accused does not respect the deadlines, sometimes for reasons beyond his control, he is often punished. His requests are dismissed outright and the benefit of presenting preliminary objections is automatically withdrawn1. Sometimes even the Prosecutor intervenes by giving false information to the Chambers to influence the decision of the Judges. Thus, the Appeals Chamber dismissed the appeals of Joseph Kanyabashi and Samuel Imanishimwe on the basis of inaccurate dates provided by the Prosecutor. This inequality of the parties is unfortunately enshrined in Article 72, F which only provides for the sanction against the accused alone.

Systematic violation of the rules of disclosure of evidence

Disclosure of documents or evidence by the Prosecutor is governed by time limits (arts. 66, 67, 68 and 73 bis). However, the Prosecutor rarely respects his obligations. But he never suffers a sanction even when the Defense experiences prejudice that the Chamber often refuses to take into consideration. Chambers are sometimes content to draw the attention of the Prosecutor to his obligations or to postpone the examination of scheduled cases.

In addition, the Prosecutor, relying on the prejudicial opinion of the accused, according to which his investigations are permanent, allows himself to violate the duties of communication of witnesses or testimonies according to the modalities provided for by article 66, ii to the Rules. For him, the 60-day deadline provided for communication of the list of witnesses and their statements before the start of the trial does not seem imperative. According to his interpretation, this delay may be compensated by calling witnesses provided late at a later date. The result is an extension of the trial, the prejudice of which he does not recognize for the accused. The conflict that arose, in this regard, in the case of the Prosecutor against Ignace Bagilishema (ICTR-95-1A-T), is very instructive. The same scenario has been repeated on several occasions in other cases, but the Prosecutor gets away with the complacency of the judges who often satisfy his late disclosures by alleging the merits of such requests in accordance with article 66, ii. In most cases, the prejudice suffered by the accused is not taken into account. Sometimes the Judges cut the pear in half even when the merits of the Prosecutor's requests are not obvious, or the delays arise from his lack of diligence. This is particularly the case in the so-called "Media Trial", where the Prosecutor presented statements from new witnesses more than 8 months after the start of the trial with the sole motive of "balancing the trial''. The issue of late disclosure of evidence by the Prosecutor had, however, been the subject of heated discussion for several days before the start of the so-called "Media Trial". However, the Judges refused to sanction the Prosecutor when the delays in the disclosure of the prosecution documents were obvious. And now he allowed himself to re-offend, always counting on the complacency of the judges. It is obvious that delays in the disclosure of evidence by the Prosecutor seriously prejudice the accused who are sometimes deprived of their right to have sufficient time to prepare their defense (art. 20.4, b).

The Prosecutor has enormous human and financial resources which the Defense cannot access. The accused of the ICTR are all considered indigent. The expenses required to ensure their defense are therefore borne by the Tribunal. It goes without saying that the accused cannot obtain the same means as those made available to the Prosecutor. But the Defense must at least have the time necessary to prepare its cases in proportion to the means made available to it. He must not, in this case, at the risk of being unfair, be subjected to the same constraints as the Prosecutor as if they had equivalent means. Conversely, the Prosecutor should be required to make available, within the required time limits, all the documents that counsel need to defend their client. Unfortunately, this is far from the case. Rather, the Prosecutor enjoys suspicious complacency on the part of the other organs of the Tribunal to the detriment of the defense.

Structural inequality of the Parties

Sometimes the Office of the Prosecutor agrees with the Registry Services and the Judges, as part of the col-laboration between the organs of the Tribunal, to undertake actions that do not necessarily take into account the interests of the accused. This is the case, for example, with the setting of the Tribunal's Calendar where the advice of Defense counsel is rarely taken into consideration. The latter are even often informed at the last minute of the holding of hearings where their presence is essential. Defense requests for postponement are almost always rejected, while those of the Prosecutor are always honored. Thus, at the insistence of the Prosecutor, the Registry failed the request for postponement of the appearance of Jean-Bosco Barayagwiza on April 18, 2000, with a view to pleading on the new charges, by refusing to recognize that the French text of the amended indictment had not yet been delivered to the accused. And yet, at the same time, he refused to meet the accused with his counsel for a defense coordination meeting. Trial Chamber I represented by its President, Madam Navanethem Pillay, refused this postponement despite the absence of counsel for the accused.

It should also be noted that press releases from the Registry of the Tribunal are always biased in favor of the Prosecution. Sometimes even, the spokespersons of the Tribunal take up the case for the Prosecutor against the Accused who are considered guilty before the judgment1. In addition, the Registry does not hesitate sometimes to violate the rules and practice of the Tribunal to satisfy the Prosecution, in particular by widely publicizing decisions of the Tribunal favorable to the Prosecutor while those favorable to the Accused are the subject of little attention .

The Prosecutor derives a lot of benefits, to the detriment of the Defense, from his proximity and from his collaboration with the Judges as an organ of the Tribunal. Thus, the latter tend to reject requests from the Defense which are unfavorable to them, while they accept without much rigor almost all requests from the Prosecutor. When the latter experiences difficulties in having unfounded claims admitted, he resorts to blackmail by accusing the judges of preventing him from fulfilling his mandate. If in the Bagosora case and the 28 others, the Appeals Chamber did not yield to the blackmail of the Prosecutor, in the Barayagwiza case, the Appeals Chamber was sensitive to the warnings contained in its request for review of the judgment of 3 November 1999. In order to supposedly enable the Prosecutor to accomplish his "mission", the Chamber, by its decision of 31 March 2000, granted the request to keep Barayagwiza in detention despite the recognized systematic violation of his fundamental rights through the fault of the Prosecutor.

Cookie tampering policy

The Prosecutor has enormous powers as well as significant human and financial resources to carry out his mission, as we have already stressed. But all these means cannot substitute for the reality of the facts, which still does not respond to his designs tending to convict all the Hutu defendants. He is sometimes forced to abuse it to strengthen his position against fairly enterprising and skillful Defense Teams. This is how he does not hesitate to carry out acts of tampering with witnesses to induce them to give often false statements against the accused. He began by using the accused detained at the ICTR, sometimes using threats, sometimes promises. Some defendants resisted his sirens (EliezerNiyitegeka, Sylvain Nsabimana, TharcisseMuvunyi, Augustin Ndindiliyimana ...) and refused to falsely accuse their comrades or to make extorted and unfounded confessions. Others, more fragile, more naive or even greedy and selfish, have yielded to his promises and lies (Jean Kambanda; Omar Serushago; Georges Ruggiu). The latter were led to sign confessions that did not correspond to the reality of the facts. Mr. Jean Kambanda realized the deception too late and tried, in vain, to rectify his confession. The Judges of the Appeals Chamber denied him this possibility on the basis of a simple procedural matter. Yet the same Appeals Chamber refused to fully apply the rules of procedure in the Barayagwiza case on the pretext of avoiding a "possible miscarriage of justice." At the ICTR, a miscarriage of justice is therefore tolerable and acceptable when it is prejudicial to the cause of an accused.

Following the resistance of ICTR detainees to respond to the Prosecutor's requests, the latter, in collaboration with the Kigali regime, decided to use the same carrot and stick tactic to force Hutu detained in dying prisons in Rwanda, to come and give false testimonies against the detainees of the ICTR. Rwandan prisons have thus become the largest sources of prosecution witnesses. The authorities in Kigali promise them reduced sentences or the non-application of the death penalty or its commutation for those who have been sentenced to death. Those who refuse are subjected to the worst abuses and are tortured or executed. Their families are the subject of threats or attacks. Thus, to save their lives and that of their family members, the Hutu prisoners agree to subscribe to the false accusations made by the Prosecutor and the RPF regime with the active assistance of the IBUKA organization.

The Registrar crossed the limit of the tolerable by promising material advantages - house building and monetary assistance - to the "victims" who would agree to come and testify for the Prosecutor against the accused in Arusha. He made a statement to this effect during his recent visit to Rwanda where he inaugurated, on September 26, 2000, in Taba Commune, Gitarama prefecture, a "program of reparation for victims''. The Communiquй issued on this subject by the Tribunal specifies that this program will be extended "to other prefectures where the Tribunal has identified witnesses or potential witnesses1". As we know that only the Tutsi are considered "victims"2 and that only the Prosecutor's witnesses come from Rwanda, we understand that this program is only intended for Tutsis who will come to testify against the Hutus in Arusha. This victim assistance program has nothing to do with the administration of justice by the ICTR.Onthe contrary, it reinforces its partial and ethnic character. Neither can it be said that it is part of the framework of national reconciliation as claimed in the press release from the Registry, since it is addressed only to Tutsis. Rather, it will help to widen the existing gap between the two ethnic communities. Moreover, such a program constitutes, in itself, an act of witness tampering. This program will surely encourage associations of informers who train and enlist people intended to give false testimony and whose harmful action is denounced in the report of the Rwandan League for the Promotion of the Defense of Human Rights (LIPRODHOR ) released in July 20003. The Tutsi organization IBUKA, which has set itself up as an advocate for "victims', is the leading trainer and supplier of false witnesses. She came up against violently, during one of her actions known to be false testimonies, against the RPF leaders who were defending one of their members of the Hutu ethnic group that the IBUKA organization had accused of "Genocidal" by its "false witnesses". In a very harsh press release clearly targeting associations of informers, and especially IBUKA, the RPF stigmatized the nuisance of such enterprises and threatened those guilty of such acts, to suffer the appropriate punishments4.

It is incomprehensible and unacceptable that the ICTR is guilty of encouraging associations of informers and of complicity in the tampering of witnesses to the detriment of the defense of the accused at a time when Rwandan political leaders themselves denounce the phenomenon of false witness fabrication. It emerges from this, in any case, that the Prosecutor's witnesses from Rwanda cannot be reliable for an impartial observer. Unfortunately, the Judges of this Tribunal do not bother to take the Defense complaints seriously. It suffices to refer, among other things, to the rejection of the accusations of false testimony against certain witnesses who had appeared in the trials of Jean Paul Akayesu5 and Georges Rutaganda6.

Unlimited surveys strategy

The ICTR Prosecutor has granted himself the powers to continue, indefinitely, his investigations against any accused and to modify at any time the indictment confirmed against him. In fact, no clause in the Statute or in the Rules gives it this prerogative. He misinterprets Article 50, which gives him the right to amend the indictment before or after its confirmation. This article in no way gives him the right to conduct unlimited investigations. When we analyze the Rules of Procedure and Evidence, we see that the legislator has provided for distinct phases of the course of the proceedings from the submission to the judge of the indictment: Indictment (V); the trial at first instance (VI); Appeal procedures (VII); Revision (VIII); Grace and Commutation (IX).

The investigation procedure predates all of these phases. This is how it appears in Chapter IV of the Rules of Procedure and Evidence. This means that the Prosecutor submits the indictment to the judge after completing his investigations carried out in accordance with Articles 17 and 18 of the Statute. The latter does not provide that the indictment is provisionally submitted subject to further investigation. In fact, the amend- ment provided for by Article 50 is an exceptional measure which should only be motivated by the knowledge by the Prosecutor of sufficiently important additional facts without which the administration of justice would be distorted in the case in question. This does not, however, give the Prosecutor the right to continue his investigations indefinitely or to propose changes at the twenty-fifth hour as he has become accustomed to doing with the complacency of the Judges.

It is true that the Prosecutor has the right and the permanent duty to investigate all crimes brought to his attention. But it must also take into account the interests and rights of the accused, especially if the latter is in pre-trial detention. He has a duty to quickly conclude his investigations to avoid prolonging the detention. The situation was the result of the lack of effective oversight of the action of the Prosecutor by the judges in the investigation phase and the detention procedure. The judges agreed too easily to allow the Prosecutor to arrest people on the basis of mere suspicion and to keep them in detention for too long a period before producing indictments against them made up as a result of serious investigations (Articles 40 and 40bis of the Rules of Procedure and Evidence). Detention orders are signed with some complacency as well as the confirmation of indictments. The consequence of this is that the Prosecutor is often obliged to review his indictments, sometimes repeatedly, before the start of the trials or even during the trials, to avoid a fiasco given the weakness of his evidence.

The Chambers favor the frequent recourse of the Prosecutor to the argument of the permanent continuation of the investigations to multiply the amendments of the indictments. Judges do not require a prima Jadeevidencebefore accepting any introduction of new charges or reversion to those rejected by the confirming judge. In the event that he considers that further investigations are necessary, the Prosecutor should refrain from arresting a suspect if the available facts are not sufficiently solid to support a charge against him (articles 17 and 18 of the Statute) or, otherwise , accept provisional releases (article 65 of the Rules) pending final indictments. But the Prosecutor has instead favored the procedure contrary to the fundamental rights of the persons concerned, namely, the arrest first, the investigation then. One can agree that the Prosecutor can hardly, at any given moment, establish that all the elements of a case have been assembled 100%. This is not possible. Would that mean delaying trials or constantly resuming them because it is believed that new evidence might be found?

Continued investigations lead to the production of new evidence at any stage of the proceedings and to amendments to indictments. This induces serious consequences prejudicial to the interests of the accused in detention, in particular by the following case situations (1.8.1. To 1.8.6).

The undue prolongation of the pre-trial detention of the accused concerned

The period of pre-trial detention for most of the accused detained at the Tribunal's Detention Center is more than 4 years and 5 years for some. The Prosecutor always tries to justify the long detention of the accused by the complexity of the cases when in reality it is mainly due to the lack of evidence. Instead of avoiding untimely arrests before gathering enough evidence, he argues that pre-trial detention cannot be too long as long as the alleged crimes include life sentences. This reasoning is obviously false since it starts from the presumption of guilt and not from the presumption of innocence guaranteed by the Statute (Article 20.3). It is illegal to anticipate an accused's sentence before trial. On the other hand, it is wrong to consider the heaviest sentence when even if all the accused were to be sentenced, they would not necessarily face the same sentences. The Prosecutor should therefore adhere to the universally recognized rules of criminal law, namely that the pre-trial detention of an accused person is an exception and, if necessary, it must be of short duration (Articles 9.3 and 14.3, c of the International Covenant on Civil and Political Rights and article 20.4, c of the ICTR Statute). We will come back to this subject.

The distortion of the principle of the presumption of innocence

The rule at the ICTR is that any person - of Hutu ethnicity, it should be noted - suspected of having com-mitted serious violations against international humanitarian law falling within the jurisdiction of the Tribunal, must be arrested and detained while waiting for the investigations are carried out and the trial begins. Yet the universal rule is that the detention of a suspect or an accused is an exception. The Belgian judicial authorities have decided to respect this principle of criminal law in the case of the four Rwandans whose trial took place in Brussels for serious crimes against international humanitarian law, the same which are accused of all the detainees in Arusha. Indeed, MM. Alphonse Higaniro, Vincent Ntezimana and Sisters Gertrude and Marie Kizito appeared from April 17 to June 7, 2001 as free defendants. And that did not in any way interfere with the proper administration of justice. On the contrary, it preserved the rights of those concerned to the presumption of innocence. This right is denied to all ICTR detainees without any substantiated reason being advanced by the Prosecutor.

Fatigue which induces the complacency of judges

With regard to the presentation of prima facie evidence by the Prosecutor on new charges and with regard to the latter's strict adherence to due process. During the various amendments proposed by the Prosecutor to the pace of his investigations, the ICTR Judges refuse to require him to provide proof of presumption for any new charges, especially since they refrain from examining basically the supporting documents accompanying the amendments to the indictments. Even in the event that the Prosecutor brings back charges rejected by the judge confirming the original indictment, the judges meeting in Chamber, do not require him to provide additional evidence despite the obligation imposed by article 47, I.

The negative effects on the production of Defense witnesses

The multiple amendments to the indictments oblige the Defense to adjust its defense strategy and, in the event the Prosecutor presents new facts or new charges, to carry out additional investigations or to seek new Defense witnesses. This puts on the shoulders of the Defense a sometimes unbearable weight given the insufficient human and financial resources made available to it sparingly and reluctantly by the Registry of the Tribunal, while the Prosecutor has enormous resources.

The difficulty of adequately preparing the defense.

The accused has the right to be given sufficient time to prepare his defense. However, if the Prosecutor has the right to conduct permanent investigations, at any stage of the proceedings, that is to say, the proceedings should stop at each amendment to allow the accused to adequately prepare his defense. Experience has shown that judges do not pay enough attention to the rights of the accused. Often the House will give it minimal or no time at all. The provisions of article 50.C which provides for a period of 30 days for preliminary objections and of article 66, ii which stipulate that the Prosecutor must have given to the defense, "at the latest 60 days before the date fixed for the start of the trial, copies of the depositions of all the witnesses whom the Prosecutor intends to call to the bar"are never respected. The Prosecutor abuses the option of the Chamber to possibly reduce this time limit for valid reasons. This exception has unfortunately become the rule, especially in the so-called Media trial where disclosure no longer takes into account the rights of the accused since it has been made permanent in line with the discovery by the Prosecutor of new information or new elements1.

Furthermore, the Prosecutor has introduced confusion in the interpretation of Articles 66 and 73bis by suggesting that the Chamber may authorize him to disclose the statements of witnesses appearing on his list outside the time limit provided for in Article 66. This deadline is actually imperative. It aims to allow the Defense to get a comprehensive idea of all the prosecution's elements in order to determine his defenses and, in particular, how to conduct the cross-examination. The exception to this deadline therefore seriously prejudices the Defense. On the other hand, articles 66 and 73bis give the power to the Chamber to authorize the modification of the original list of the witnesses of the Prosecutor by the addition of additional testimony or the withdrawal of witnesses, or by the change of the order of appearance witnesses, if the Chamber considers it justified and this does not affect the cause of the accused. The Defense of the accused Ntabakuze insisted on this issue to dispel this deliberate ambiguity which has become a privileged weapon of the Prosecutor to save the Prosecution, especially in the so-called Media Trial.

The use of low maneuvers to weaken the Defense and strengthen the Prosecution

It sometimes happens that, during the trial, the Prosecutor notices the weakness of his case. He does not hesitate, in this case, to resort to the right of permanent investigation which he has assumed to seek further evidence of the prosecution at any stage of the proceedings. It is under these conditions that witnesses are fabricated and that witness-prisoners are subjected to intimidation and threats from the Prosecutor and the Kigali government to force them to give false testimony against the accused. Defense witnesses are also being intimidated and threatened to refrain from testifying in favor of the accused. Sometimes these witnesses are questioned on behalf of the Prosecution in order to reveal the content of their testimony in order to enable the Prosecutor to seek out surprise accusations in advance or to modify the data which is the subject of the trial alibi defense of which he is informed.

In extreme cases, the Prosecutor threatens to arrest and even arrests members of the Defense Teams with the sole aim of weakening the Defense and strengthening its cause weakened by the poor performance of its witnesses, the incompetence of its agents or the skill of Defense Teams. In this connection, we can cite three serious incidents which took place in the so-called Cyangugu case and which affected the three accused concerned. On September 18, 2000, from the first day of the trial, the Prosecutor asked the question of the dismissal of Mr. Eric Vermeulen, Assistant in the defense team of Bagambiki Emmanuel for the simple reason that he had completed an internship at the ICTR before entering the defense team of the accused. This request was rejected by the Chamber which did not find it relevant. But the representative of the Prosecutor in the Cyangugu trial, Mr. Richard Karegyesa1 returned to the matter on September 20, 2000. This time, too, he could not convince the Chamber of the relevance of his request. The questions put by the Judges to the representative of the Prosecutor show that they were not convinced of the merits of this request or of the risks to justice of the presence of Mr. Vermeulen in the defense team. His failed maneuvers in the House did not deter Mr. Karegyesa. He put pressure on the Registry, which ultimately decided to terminate Mr. Vermeu- len's contract, unbeknownst to Emmanuel Bagambiki's Defense. Lead counsel for the latter was indignant and informed the Chamber in these terms: subsequently to elect another jurisdiction, namely that of the Registrar, who, in this Tribunal, is the guardian of the rules of ethics? For us, it is you, Honorable Judges ". [...]. "We simply wanted, Mr. President, Honorable Judges, to tell you that the consequences of this decision are not only in principle, but may affect the very conduct of this trial." Faced with the one-sided and one-sided decision of the Registrar, the judges of the Chamber could only advise Defense counsel to "contact the Registrar to see how this matter could be resolved''5.