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

On May 19, 2001, Samuel Imanishimwe's Investigator, Mr. Nshamihigo Simon (Sammy Bahati) was arrested in an incredible manner, without an indictment or arrest warrant, at the instigation and with the active participation of "Representative From the Kigali regime to the ICTR, Mr. Martin Ngoga. The Defense for Samuel Imanishimwe was shocked by the sudden arrest of the Investigator who had just worked for the accused for a period of two and a half years. What decision will the people he contacted and who agreed to testify before the ICTR on behalf of Samuel Imanishimwe make? Will they not feel intimidated by the presence within the team of the Prosecutor in charge of the trial of the one who is perceived in the corridors of the Tribunal as the agent of Kigali and who would be at the origin of the arrest of Simon? Nshamihigo? In any event, Samuel Imanishimwe's defense was irreparably disturbed, and this, it seems, is the primary objective of Mr. Karegyesa's action in the Cyangugu trial. And two. On June 6, 2001, Andrй Ntagerura's Defense Team, in turn, began to be subjected to outright destabilization. Indeed, during the interrogation of Witness MF who testified against Andrй Ntagerura, Mr. Karegyesa led him to accuse Mr. Malien Habyarimana of being Ntagerura's accomplice6. Malien Habyarimana happens to be an investigator in the Andrй Ntagerura Defense Team. Following the strong reaction of the Defense of Andrй Ntagerura who considered that this accusation against the investigator of the accused was not part of the indictment being the subject of the trial and that it was intended rather to destabilize Defense, the Chamber instructed the Prosecutor to change his line of questioning. However, the latter did not cease his maneuvers to destabilize the Defense of Ntagerura. He changed his tactic by bringing a written request based on section 77 (C) relating to witness intimidation.

According to Mr. Karegyesa, Mr. Malien would have attacked the safety of a protected witness and thus committed himself in contempt of the Tribunal. After having taken cognizance of the request, the Chamber considered that it was not founded either in law or in fact. According to her, nothing in the documents provided by the Prosecutor, inter alia, an affidavit by a registrar and a statement by Witness MF, showed the existence of any intimidation. The request was dismissed without debate7. The Defense remained frustrated at not having been able to publicly denounce the unacceptable maneuvers of the Representative of the Prosecutor, Mr. Karegyesa, who clearly aimed to destroy the Defense Team of Andrй Ntagerura as he had succeeded in doing with the Defense Teams. of his co-defendants. Counsel for Andrй Ntagerura was nevertheless able to draw the attention of the Chamber to the fact that the unfounded allegations made against Mr. Malien Habyarimana, Investigator of Andrй Ntagerura, were very serious and would have serious repercussions on his case customer.

We have focused on the three cases to illustrate the maneuvers of destabilization of the Defense Teams which the Prosecutor has often engaged in to hide his difficulties in finding tangible evidence against the accused. These three successive incidents in the same case against all the co-defendants, added to other incidents which took place in other cases, notably in the trial of the Butare group1 and in the so-called "Media Trial''2, reveal the existence of an alternative strategy devised by the Prosecutor to cope with the skill of the Defense Teams. He tried to subjugate them with the force argument, because he could not beat them with the force of the argument.

Cooperation with States to the Prejudice of the Accused

The Prosecutor has, like all other organs of the Tribunal, an obligation to respect the Statute and the Rules of Procedure and Evidence. However, several cases of violation of these legal instruments, in the framework of its cooperation in particular with States, are to be blamed (illegal and arbitrary arrests, irregular transfers, inhuman or degrading treatment). Some states cooperate honestly with the Tribunal's Prosecutor, even agreeing to violate their own laws and procedures or violate the fundamental rights of suspects. They are misled by Prosecutors who do not respect the rights of suspects into the idea that until these suspects are transferred, the Tribunal bears no responsibility for them3. And yet, humanitarian law and human rights must be respected everywhere and by everyone. Sometimes the Prosecutor conspires with states to challenge the rights of the accused. The most glaring case is the Barayagwiza case in which the Prosecutor's complicity with the Kigali regime to pressure the Appeals Chamber to reverse its decision to severely sanction the systematic violation by the Prosecutor of fundamental rights of the accused. This case caused the scandal which called into question the credibility of this Tribunal. The close relations that the Prosecutor maintains with states can also lead to a certain detrimental dependence on his investigative mission in the interest of the truth and not according to the interests of the state concerned.

The Judges themselves, in the name of the Tribunal's good cooperation with Rwanda, among others, undertake actions which undermine their independence and their credibility. Thus the visit carried out in August 2000 by the Judges of the Tribunal under the leadership of Madam Navanethem Pillay, President of the ICTR, was considered by the accused as an illustration of the partiality of the Judges of this Tribunal and a undermining their independence and credibility4. The defense of Jean-Bosco Barayagwiza deemed it necessary to ask the Judges who made the trip and who were to sit in his case, to desist. In the letter sent to Judge Navanethem Pillay and Judge Eric Mose, Mr. David Danielson, Co-Counsel in the Barayagwiza Case wrote the following, among others:

* "... we are very concerned about your visit to a memorial highlighting the events of 1994. What exists at the memorial is absolutely central to the very issues you will be deciding in the trial of our client. In effect, you have conducted what is regarded as a "view" under French, American and Canadian law. (We assume UK law is the same but cannot formally represent as such.) A "view" is sometimes ordered by the court to assist it understand the case but is only done with the full attendance and involvement of the parties after the commencement of the trial. This visit violated that commonly accepted approach".

[...]. "With respect, we urge you to recuse yourself from hearing Mr. Barayagwiza's case pursuant to Rule 15 of the Rules of Procedure and Evidence. Meetings with Messrs. Kagame and Gahima in a non-judicial setting, when the very conspiracy to commit genocide and crimes against humanity which are alleged against our client are the reason for the meeting, are highly inappropriate. The appearance of impropriety is exacerbated by the fact it comes within three weeks of the scheduled start of this trial. But most importantly, it was explicitly designed to improve relations and cure the 2 3 4 damage to relations between the Tribunal and the government of Rwanda caused by the "Barayagwizacase." That is a political, and not judicial, function ".

Knowing that there are many accusations against Paul Kagame and his RPF comrades, now leaders with him of the new Rwandan regime; informed of the fact that the leaders of Kigali are putting pressure on the Tribunal to influence its decisions in the ongoing legal proceedings against the Hutu leaders; fully aware of the position of the Kigali regime with regard to the Barayagwiza file; Trial Chamber I should have avoided meeting with the Rwandan leadership in Kigali on the eve of the trial of Jean-Bosco Barayagwiza to avoid being suspected of being influenced by the Rwandan regime. Judge Antonio Cassese, President of the ICTY had, in his time, a cautious reaction, in a situation which could have caused public debate. Solicited by Radovan Karadzic who wanted to speak with him, he refused to meet even his lawyer in Pale, to avoid pressure from the leaders of the Republic Srpska, about the Karadzic affair, or to be accused of suffering their affecting. He preferred to have discussions with this lawyer at a NATO base. Unlike the ICTR judges, President Cassese thus had more maneuvering to reject Radovan Karadzic's requests which might have appeared contrary to the integrity of the Tribunal for the former Yugoslavia1.

Discriminatory use of the media

The Prosecutor has enormous means and opportunities to harness the suggestive power of the media to advance his case to the detriment of the accused. The latter does not have equal means to cope. Rather, he suffers from logistical and administrative limitations that prevent him from using the same methods as the prosecution.We are witnessing a serious enthronement of manifest inequality between the parties to the trial by the Tribunal, which should be the guarantor of equality between the parties. The accused does not have any facilities to reply to statements made to the press by the Prosecutor and to refute allegations which would possibly be prejudicial to his defense.

This is all the more true as most of the Counsel for the accused are generally more than 10,000 km away and are therefore not in a position to react quickly to statements by the Prosecutor to the press. In addition, the meetings of the Councils with their clients were reduced to a minimum for budgetary reasons. According to the Registrar's circular of 13 September 2000, the Council can only meet its client, outside the hearings, three times before the start of the trial on the merits. He can only hold a maximum of two meetings with all of his defense team. He can only stay in Arusha with his co-counsel twice during the coordination meetings before the trial on the merits. This means that meetings between the accused and his counsel are reduced to a minimum while telephone communications are also limited and they do not lend themselves to confidential talks. Because of these constraints, the defendants experience insurmountable difficulties in responding to accusations formulated against them through the media and which sometimes cause irreparable damage to their rights and interests.

The administration of the Tribunal denies them, without reason, the right to reply themselves to the al-legations disseminated by the media. Thus, despite the media coverage of his case, and the publication of inaccurate or false information about him, Jean-Bosco Barayagwiza did not obtain permission to speak to the press himself. His requests, renewed on several occasions, were dismissed . The Registrar of the Tribunal to whom he addressed his requests did not even deign to reply to his correspondence, if only to indicate to him the reasons for his refusal. It seems that the Registrar has been unable to find a plausible answer to a request which is entirely legitimate and in accordance with the right guaranteed to all persons, to be able to defend themselves or to reply to allegations made against them.

The ICTR Prosecutor, Ms. Carla Del Ponte, obviously takes advantage of this weak side of the Defense to promote the cause of the Prosecution. She has become accustomed to publicizing cases pending before the Tribunal, often in a manner prejudicial to the cause of the Defense. Thus, in violation of the presumption of innocence, she declared on several occasions before the international press and before the public, that the accused of the ICTR are criminals and that they are guilty, and this, before their trials do not take place. The Judges of the Tribunal did not want to sanction this attitude despite the protests of certain Defense counsel. Without being able to use the same methods to respond in time to the statements of the Prosecutor, the lead counsel for Jean-Bosco Barayagwiza, Me CarmelleMarchessault, in particular drew the attention of the Appeals Chamber to this inequality of the parties, during the hearing of February 22, 2000. On the contrary, certain Judges seemed to encourage the Prosecutor in his position by their silence.

The accused should therefore benefit from all the facilities required to reply themselves to the statements of the Prosecutor concerning them and to the statements of any other authority of the Tribunal which may prejudice their case. Such a facility is a right which derives from the obligation of the Tribunal to guarantee the equality of the parties in accordance with Article 20.1 of the Statute of the Tribunal and with general principles of law, especially the principle of equality of arms.

It is, in this regard, regrettable that the Registrar of the ICTR has waged an unjust war against Websites opened by friends on behalf of certain detainees, including Jean-Bosco Barayagwiza. He seeks to obtain the closure of these sites under the pretext that they disseminate information inciting to hatred between Rwandans or which would be defamatory towards the judges of the ICTR. Jean-Bosco Barayagwiza's response to these allegations remained without reaction from the Registrar of the ICTR. In his letter dated March 5, 2001, Jean-Bosco Barayagwiza wrote the following:

"I learned from the international media and, mainly from the Voice of America (English broadcast) of March 1, 2001 (~ 8:15 p.m. GMT), that the WEBSITE opened in my name by Friends (http://www .multimania.com/barayagwiza) which aim to widely disseminate the information on my judicial file, would incite hatred and indulge in defamation against the Judges of the ICTR... This emerges from the statements made to the press by your predecessor, Mr. AgwuO- kali, in his capacity as the current Registrar. But this question was also the subject of interviews that you had, on this subject, yourself and Mr. Okali, with the Minister of Justice of Rwanda, Mr. Jean de Dieu Mucyo. The latter claimed that the said Site would disseminate slander against the Kigali regime.

The accusations made against this Site by the Registrar, Mr. AgwuOkali, in your presence, are very serious. I am convinced, however, that they are unfounded since Mr. Okali has not provided any evidence for his allegations. But given that they are prejudicial to the honor and dignity of my Friends and tend to support the thesis of all those who accuse me of having committed crimes of incitement to ethnic hatred in Rwanda, I would like to ask you please provide me with more details on the subject so that I can draw the attention of my Friends to it. They have the right to know what they are accused of so that they can respond appropriately. If any mistakes were made, I have no doubts that they will correct them and ask forgiveness from those unintentionally wronged. If, on the other hand, they discover that these accusations are part of the Kigali regime's attempt to muzzle any criticism against it or of its firm desire to divert the activities of this Tribunal to its service, my Friends will continue to avail themselves of the freedom of expression guaranteed by all democratic states and by universally recognized international standards. They will not hesitate to bring a defamation complaint against Mr. AgwuOkali or any other person who continues to make unfounded accusations against them, if necessary.

For my part, if it turns out that Mr. AgwuOkali's accusations are unfounded and that they were rather dictated by the desire to meet the demands of the Kigali regime or to respond to permanent blackmail relating to possible closure of this Tribunal in the event of a definitive refusal of cooperation from Rwanda, I will be entitled to take the following actions:

a) file a complaint, if any, against malicious innuendo directed against me;

b) vigorously denounce the new manifestation of this Tribunal's dependence on the Kigali regime;

c) draw the attention of human rights organizations to what I would consider as an attempt by the Tribunal to deprive me of any means of informing public opinion of the progress of my case and of the irregularities which accompany him."

Dehumanization of the accused and lack of a policy of reparation and rehabilitation

All Hutu detained by the ICTR are not considered as potentially innocent social beings, but automatically as criminals who have committed the most heinous crimes. No one thinks that the Prosecutor's allegations may turn out to be false or unfounded. There is an unhealthy impression conveyed by the Prosecutor's firm belief that all detainees are akin to wild beasts given the gravity of the crimes alleged against them. The ICTR Prosecutor seems to espouse, in this regard, the criticisms emanating from the military-ethnic regime in Kigali, which is scandalized by the fairly good conditions of detention of Hutus at the United Nations Detention Center in Arusha. He supports the authorities in Kigali and the anti-Hutu extremists who would like the Arusha detainees to be kept in the same scandalous and infra-human conditions in which the Hutu detainees in Rwanda are kept. Like the authorities in Kigali, he even wanted the death penalty to be applied to detainees in Arusha, in order to harmonize the sentences for those accused of the same serious crimes. For him, as for Kigali, the detainees of the ICTR should even suffer greater punishments since they are the designers and planners of the "Tutsi genocide". The Prosecutor tries to gain the opinion in his firm conviction - which is not based on convincing evidence - that all detainees will be sentenced to life imprisonment or, in any case, to sentences heavy enough to keep them forever away from the prison company. This is why, according to his wishes, they do not deserve the consideration that any other inmate awaiting his final judgment could claim.

This perception of the Hutu detainee assimilated to a wild beast and not as a man simply accused of serious crimes but liable to be declared innocent has prevented the legislator from providing, in the Statute of the ICTR or in its Rules, for measures of compensation for those declared innocent after several years of illegal or arbitrary detention. It was only in September 2000, following the Jean-Bosco Barayagwiza case against the Prosecutor that the President of the ICTR, Ms. Navanethem Pillay and the President of the ICTY, President of the Appeals Chamber of the two Tribunals, decided to proposals to the Security Council in this direction1. Likewise, no rehabilitation measure for convicted and released persons is provided for in the texts governing the ICTR. Nothing is planned on the way in which these people will be reintegrated into their home society as if this integration were automatically considered unlikely. This therefore confirms the impression that the initiators of the Tribunal as well as the Judges, just like the Prosecutor and the leaders of the Kigali regime, have, a priori, the firm conviction that the question of rehabilitation does not arise as long as all Hutu defendants will be sentenced to terms that will not allow them to get out of prison alive. And even if some do get away with it, these would be rare exceptions that no one needs to worry about . Either way, it is not expected that those who are declared innocent or those who are released alive will be reintegrated into Rwandan society. This deliberate gap, which betrays the deep feeling of the designers of this Tribunal and its officials with regard to the Hutu defendants, invites the following hypotheses:

1) rare will be the Hutu defendants who can be declared innocent;

2) most of the Hutu defendants will be sentenced to very heavy sentences and, mainly, to life imprisonment;

3) they will be kept in conditions of imprisonment such that they will not be able to benefit from measures of pardon or commutation of sentences provided for in the Statute (art. 27). The Regulation (124-126) was, in this regard, drafted in a very restrictive way and reduced to nothing the humanitarian openness attempted by the supreme legislator, the Security Council, to satisfy, in a way, the demands. of the Kigali regime concerning the harmonization of sentences and conditions of detention between detainees of the ICTR with those of the revenge regime of the RPF. For the RPF government, Hutu detainees wherever they are should not benefit from a pardon or commutation of sentence. During the adoption of resolution 955 establishing the ICTR, the Permanent Representative of Rwanda to the United Nations, Mr. Bakuramutsa protested against the idea retained in the Statute of the Tribunal of being able to imprison Rwandans in third countries who could make any decisions about this imprisonment. “...my delegation finds it hard to accept that the draft statute of the International Tribunal proposes that convicts be imprisoned outside Rwanda and that countries be given some sort of decision on detainees.“. Indeed, Article 27 of the Statute provides that a detainee may benefit from a pardon or commutation of sentence.

4) The conditions of detention in the prisons which the Hutu accused definitively convicted will join may be bad, given the tendency of the authorities of the Tribunal to satisfy all the requests of Kigali even those which the Security Council refused to him or not to him. A point explicitly granted during the negotiation on the establishment of the Tribunal. These include, among others, the following requirements: arresting Hutu leaders on the basis of mere suspicion without an indictment or arrest warrant; holding as guilty, a priori, any Hutu suspected by the RPF; harmonizing the sentences and conditions of detention of prisoners from Rwanda with those of the ICTR; exclude the social rehabilitation of Hutu prisoners; tolerate the interference of the Kigali regime in the conduct of trials, in the determination of sentences and sentences as well as in the definition of the conditions of imprisonment or possible release of ICTR prisoners.

With all these irregularities, is it possible to believe in the fair and impartial nature of the trials organized and the judgments handed down by the International Criminal Tribunal for Rwanda? Is it 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.

References

1. Amnesty International. International Criminal Tribunal for Rwanda. Trials and Tribulations. Al Index: IOR 40/03/98. APRIL 1998; P. 38

2. Appeals Chamber "Decision on admissibility of the Prosecutor's appeal from the Decision of a confirming judge dismissing an indictment against ThйonesteBagosora and 28 others".

3. le Juge Shahabudeen, dans son opinion sйparйe, dans l'arrкt du 31 mars 2000, dans l'affaire Jean-Bosco Barayagwiza contre le Procureur, ICTR-97-19-AR72, para 67 et 68.

4. International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, U.N. Doc. ITR/3/ REV.1 (1995), entered into force 29 June 1995 : http://hrlibrary.umn.edu/africa/RWANDA1.htm

5. Rwanda: des personnalitйs de l'ancien rйgime arrкtйes : Communiquй de presse du TPIR le 18/07/1997

6. UA 309/97 Fear of refoulement / Arbitrary arrest 30 September 1997; Dйclaration du Dr Agwu U. Okali, Greffier du TPIR concernant le cas de M. Esdras Twagirimana, 20 septembre 1997

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