U B U T A B E R A (Part 2)

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Independent newsletter on the International Criminal Tribunal for

Rwanda

Arusha - February 16, 1998 - No. 30

[All editions of Ubutabera can be found on our web site:]

http://persoweb.francenet.fr/~intermed

In this edition:

The Kayishema/Ruzindana case: Amical Divorce

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The good relationship between the parties present at the trial seems to

be a thing of the past. Several times, the President of the second

chamber had to remind the protagonists of the spirit of co-operation

which had marked the beginning of the trial. Lack of preparation for the

resumption of the hearing created more confrontation.

Holiday surprises

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Official Court holidays disturbed by two unexpected events: the release

of Elizaphan Ntakirutimana and the attempted suicide of Hassan Ngeze.

In Brief... In Brief

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Automatic commission; First court appearances; The Nahimana case;

Dallaire; Adad.

The Kayishema/Ruzindana case:

Amical Divorce

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Two monthsÆ holiday as the courts were closed had obviously not been

enough to create the conditions for a good start. This week only the

witness QQ was able to give evidence uninterrupted, with the

cross-examination of a Guardian journalist postponed for personal family

reasons. On Monday February 9th, at the opening of the hearing, the

deputy Prosecutor, Brenda Sue Thornton, presented several requests to

the court. She first asked that transcripts of the hearings be available

to both sides more quickly, stipulating that she had not been able to

obtain the transcripts for the most recent part of trial, form October

27th to November 28th. Invited by the president to explain her request,

Prisca Nyambe, of the clerk of courtÆs department, stated that with a

lack of staff, her department had been forced to use the services of

companies based in Canada, North America and France, but for the time

being the latter deserved to be appropriately corrected. One last touch

to the canvas : the defence then protested over the delay in receiving

the latest testimonies from the Prosecutor. The written evidence from

witness VV, which is supposed to be heard this week, had indeed only

been passed on to the defence when he arrived in Arusha, in the first

week in February. The Prosecutor had not wanted to fax the documents,

although the testimony had been ready since January 30th. Pascal

Besnier, Obed RuzindanaÆs lawyer, reminded the judges that the ruling

made in February 1997 on the protection of defence witnesses obliged

the Prosecutor to make the testimonies available to the defence ôat

least two weeksö before the hearing. Again referred to by Mr.Moriceau,

Cl ment Kayishemaæs counsel, this ruling provoked the following question

from president Sekule : ôWhich article of the ruling are you talking

about ?ö

A private hearing for a private hearing

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MondayÆs hearing was eventually suspended to allow the defence to

prepare this last-minute testimony.

However, the case of witness VV continued to shock the court. the next

day, Brenda Sue Thornton asked for an in camera hearing to defend a

request for an in camera hearing of witness VV. She explained : ôThis

witness is very worried about his testimony. The Prosecutor spoke to the

witness and asked for an in camera hearing to demand extra protection

measuresö. Ruling on the demand for such a private hearing the judges

rejected the ProsecutorÆs demand. Seemingly marked with confusion, the

witnessesÆ evidence took more than an hour. VV did not wish to explain

the reasons for his demand to the judges, arguing that his explanations

would represent a testimony in themselves, and that he would only agree

to explain himself if the accused were not there. When the public

hearing resumed, Brenda Sue Thornton explained to the Court that the

Prosecutor was giving up this new witness, who was ôas important as the

othersö, making it clear in her address to the court that : ôThe

Prosecutor met VV and decided to respect the wishes of the witness and

not to summon him before the courtö. The next witness, Christopher Mac

Greal, is a British journalist. The Sub-Saharan Africa correspondent

for the Guardian for six years, he was unable to stay and finish giving

evidence for family reasons, which obliged him to leave for South

Africa. Only his statement could be heard. Although present in Arusha

for ten days on business, Christopher Mac Greal was only asked to give

evidence on Friday February 6th. M.Moriceau protested again, as he had

only received the written statement of the new witness and that very

morning, had received ôfour articles in English, of which only three had

been translated into Frenchö.

These articles had been written by the journalist in Rwanda, in 1994.

Brenda Sue Thornton indicated : ôI spoke to the Clerk of CourtÆs Office

just now, and they told me that the missing article was too long and

that it would take two more days to doö. The Tanzanian Judge, William

Sekule, then tried to convince the defence to admit the witnessesÆ

statement but Philippe Moriceau protested : ôThere is a principle of

loyalty necessary in this court. (...) I think reasonable deadlines are

not being respected when today is Tuesday , and we only found out about

this witness a few days agoö. Clearly disappointed by the succession of

disagreements between the two sides, the president again intervened :

ôThere are a lot of things going on in this trial. Although weÆre from

different courts originally we are going to try to maintain the spirit

of co-operation that we have always had, in order to make some progress

in this caseö. Responding to the presidentÆs plea for co-operation,

Philippe Moriceau added : ôUntil now we have demonstrated our readiness

to co-operate, understand and accept that the ProsecutorÆs department is

experiencing some difficulties [linked to security conditions in

Rwanda]. The defence is experiencing even greater difficulties (...) But

this is a particular case, and we have never had a witness who has been

giving evidence for days on end. (...) Our co-operation, in the name of

the defence, has its limits. We must be given sufficient timeö. Brenda

Sue Thornton furiously replied : ôI must remind the court that in the

past the ProsecutorÆs department has tried to send all the documents as

quickly as possible. At present we have not received a single document

from Mr.Besnier and Mr.Moriceö. After this exchange, Christopher Mac

GrealÆs cross-examination was postponed.

ôFeel free to talk amongst yourselvesö

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Jonah Rahetlah introduced the next three defence witnesses, who had

arrived at Arusha airport the same day and asked for a postponement of

the hearing in order to prepare witness QQ. Again, president Sekule

appealed for the necessary co-operation, refusing to become embroiled in

their argument. : ôWe hope that the two parties will ensure that some

progress will be made from tomorrow. Feel free to talk amongst

yourselves, and resolve the problems together ô. Jonah Rahetlah then

went on to say that :

ôFor reasons outside the ProsecutorÆs control, but matters relating to

another department, the witnesses have only arrived todayö. ThursdayÆs

much quieter hearing opened with a request for witness protection handed

in by Cl ment Kayishemaæs defence. Mr. Moriceau asked the court to

extend protection measures already granted in the Ruzindana case in a

ruling on 6th October, to witnesses present in Zambia. Making another

remark intended for the defence, Jonah Rahetlah had added that the

lawyers had not passed any document to the Prosecutor, with the

exception of ôMr.Besnier who sent us a list of witnesses with addresses

a few days agoö. In full flow, the Prosecutor wanted the lawyers to

reveal to his department the argument for the defence of their client,

in accordance with article 67 of the procedural and evidence regulation.

Stoically, the president merely stated : ôWe have noted this

information, although they are not absolutely central to this morningÆs

debates. We will have the opportunity to deal with this laterö. The

confusion reigning at the resumption of the trial has brought about this

lack of co-operation, for which the judges are a little nostalgic. The

defence witnessesÆ evidence is supposed to close around the 19th of

March, according to Ren Degni-Segui, the special representative of the

Secretary-General of the United Nations in Rwanda in 1994. In the near

future, the indictment proceedings will be amended. The tenor of the

debate will perhaps allow the kind of co-operation that the two sides

will be able to exploit.

Holiday surprises

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Official Court holidays disturbed by two unexpected events

Release of Elizaphan Ntakirutimana

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A sudden turn of events in Texas on December 17th, when Judge Marcel C.

Notzon rejected the request for Elizaphan Ntakirutimana to be

transferred to the TPIR, and announced the immediate release of the 73

year-old Rwandan former Adventist pastor. He had been president of the

7th Day Adventist Church at the Kibuye municipal council, and pastor of

the Mugonero church in Gishyita. Indicted by the TPIR Prosecutor, he was

arrested on September 26th 1996. The request for his extradition by the

TPIR had been heard on January 9th 1997, beginning many months of legal

proceedings. On December 17th, Judge Notzon deemed that the request did

not fulfil two of the three requisite criteria : the TribunalÆs

jurisdiction over the matter, and the validity of evidence supporting

the accusations. On the first point, the Court considered the

extradition agreement between the government and the Tribunal as

unconstitutional, since it was not based on any treaty. On the second

point the court considered that the American government had not

ôfulfilled its dutyö, and stipulated that the accusation is based on

twelve unidentified witnesses, whose credibility is not supported, and

whose testimony was taken by an investigator who could not speak the

kinyarwanda language, in unspecified conditions and without them knowing

that they were testifying on oath. Consequently, Notzon judged that the

witnesses only attested ôvaguelyö to the fact that the defendant ôwas

among those who had attackedö the church, and that this was insufficient

for the presumption that the pastor had taken part in it. Ditto for the

accusations concerning Bisesero. The magistrate then reviewed the

witnessesÆ written statements and concluded that the accusations did not

pertain to a principal instigator of genocide. The report, published in

a 25-page affidavit, is in his opinion, ômore revealing in what it

doesnÆt say than it what it really does sayö.

Because of what will now be called the ôLoredo Judgementö, the American

government finds itself in a sensitive position. The government

immediately announced that it would take steps to ensure that Elisaphan

Ntakirutimana would be extradited in order to ôfulfil its international

obligationsö. The Rwandan pastor is defended by Ramsey Clark, former US

Attorney-General under President Johnson, and fierce critic of the

legality of international penal jurisdiction.

Attempted suicide of Hassan Ngeze

-----------------------------------

On the morning of January 24th, Hassan Ngeze was found unconscious in

his cell in the UN penitentiary centre in Arusha, where he had been held

since July 18th 1997.

According to a Tribunal press release, the defendant ôadmitted having

taken a mixture of chemicals, especially the detergent generally

distributed to inmates in daily portions for cleaning their own cellsö.

The former editor of the newspaper, Kangura, quickly regained

consciousness after receiving medical treatment. Although investigations

immediately announced by the TPIR, it is doubtful whether Hassan Ngeze

really intended to kill himself. Such were the circumstances surrounding

this incident that the ex-journalistÆs taste for provocation support

this interpretation.

In Brief... In Brief

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Automatic commission.

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Andr Gagnier, a Canadian, has been automatically commissioned to defend

Hassan Ngeze, while his compatriot Michel Boyer has been appointed as

co-counsel in the Kanyabashi case. Jean-Louis Gilissen, a Belgian, has

been appointed Georges Ruggiuæs deputy counsel.

First court appearances

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Four prisoners from the Arusha Penitentiary Centre had still not given

evidence when the Court closed for official holidays. After several

trial dates were announced and not respected, Laurent Semanza æs took

place on 16 February, in the second magistrates court. The defendant

pleaded not guilty to seven charges brought against him. Gratien

Kabiligi and Jean-Bosco Barayagwiza are to appear in court on February

17th and 23rd respectively. Only Jean KambandaÆs date is not yet known.

The latter, whose defence is being kept secret by authorities, has not

requested the help of a solicitor and has been held separately since

July 18th 1997.

The Nahimana case

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After the Tribunalæs ruling on November 24th, the indictment against

Ferdinand Nahimana has been changed. One particularly long-awaited point

lay in the ProsecutorÆs clarification of the names of those with whom

the former director of the RTLM had made arrangements regarding the

murders of which he is accused. The new indictment goes into little

detail on this point. Two individuals, Jean-Bosco Barayagwiza and

F licien Kabuga, are named, but the Prosecutor clearly implied that the

list is not exhaustive. The first is held in Arusha prison, while the

second has not yet been officially indicted. Formerly a successful

businessman during the Habyarimana r gime, F licien Kabuga seems to have

escaped from the trap laid for him in Kenya in July 1997.

Dallaire

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The date for General Dallaire to give evidence in the Akayezu case has

been set for February 23rd. On 13th January, the UN secretary-general

officially agreed to lift the immunity of the former Minuar

Commander-in-Chief, specifying that the move was ôonly applicable to

General DallaireÆs evidence as a witness for Tribunal (in the Akayezu

case) and to matters arising directly from the charges levelled against

the defendant. This lifting of immunity does not apply to the

publication of confidential UN documents, which are subject to the

secretary-generalÆs authorisationö.

Adad

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A meeting of the Association of TPIR Defence Counsels (Adad) was held in

Arusha on February 7th. Since its foundation in August 1997, Adad has

faced obvious problems in the running and internal organisation of the

Tribunal, which seem to have paralysed its actions.

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