Drafting of Indictments for the International Criminal Tribunal for Rwanda
International criminal law is a product of the convergence of two different legal disciplines: the criminal aspects of international law and the international aspects of national criminal law. The two disciplines, while complementary, are also co-extensive and separate. Further, the blending of the different legal systems, and particularly, of continental and common law, on the one hand, and the international and national criminal prosecution practices, on the other hand, have influenced the drafting of indictments by the Office of the Prosecutor (OTP) of the International Criminal Tribunal for Rwanda (ICTR). The OTP is also influenced by a combination of principles drawn from Roman-Dutch, continental and common law. These are the systems in which the first three Prosecutors of the ICTR derived their experiences in national criminal prosecutions.
Under continental legal models, an examining magistrate has access to all documents relating to a criminal trial, including witness statements and other documentary or expert testimonies that are often inadmissible according to common law rules of procedures and evidence. Under common law, only witness statements and other documentary or expert testimonies that have passed strict rules are admissible before trial courts. Hearsay evidence, for example, is only admitted under very exceptional circumstances. Further, in common law systems, the prosecutor often has no automatic right of appeal against an acquittal. This is viewed as an infringement of the prohibition of double jeopardy. On the other hand, under continental systems, as a general rule, prosecutors may appeal an acquittal. These and other differences have limited the policy options available to the OTP. Indeed, the various lawyers within the OTP, coming from different legal systems, view problems of drafting indictments as well as the process of conducting a criminal trial differently.
The drafting of indictments by the OTP is an ongoing process, and with time, a distinct philosophical approach, or policy, will emerge. From the establishment of the ICTR in 1995 up to 1999, the OTP tended to draft long and complex indictments. The longest indictment was, for instance, 108 pages. Gradually, the OTP began to draft shorter and less complex indictments. It is now readily acknowledged that shorter indictments are often precise, clear and unambiguous, and this has the effect of limiting the number of preliminary motions filed by defence counsel after confirmation of indictments. It is not suggested that long indictments per se are necessarily defective or bad in law. On the contrary, some long indictments are necessary, depending on the facts of each case and the number of persons suspected to have participated in the commission of crime or crimes for which they are jointly or separately indicted. This is particularly true of crimes committed as a result of complex ethnic conflicts.
Some crimes, by their very nature, and by the circumstances under which they were committed, create special difficulties in the drafting of indictments. The crime of genocide, for example, results from government planning, financing and organisation of all structures of state power. Its execution involves participation of persons who occupy positions of responsibility at the highest level of government, military or political leadership. In some instances, the utterances, acts or omissions of senior individuals are regarded by their subordinates, including many junior government officials, military officers and party functionaries, as law, regardless of whether these directives are written, formal or informal orders; and whether they are lawful or unlawful. Under these circumstances, it is probably necessary that background information relating to the historical and cultural background should be provided in an indictment for the purpose of explaining circumstances under which these horrendous crimes were committed. This background information does not only disclose the theory of the Prosecutor, but also offers assistance to judges and defence counsel.
In drafting indictments on counts as serious as genocide, crimes against humanity or war crimes, the Prosecutor is always faced with the question of who of the many suspected perpetrators are to be indicted. The organisational structure of the party, military or state machinery that plans, organises and executes a plan that results in the killing or extermination of a people, in whole or in part, is so immense that any prosecutor in any court would find it difficult to ascertain, search for, arrest, indict and prosecute every single person suspected of involvement. Even if the OTP were to adopt a policy of prosecuting only “major criminals”, and to leave suspects it considers “minor criminals” for prosecution by the Rwanda national courts, the problem of determining who is, and who is not, a “major criminal” would still be difficult to resolve. Consequently, only a tiny fraction of persons responsible for the commission of such horrendous crimes are eventually arrested, indicted and ultimately prosecuted.
It is not enough just to arrest and charge a suspected war criminal. The indictment itself must be sufficient to sustain the allegations made against an accused person. A defective indictment leads to a miscarriage of justice. It is therefore in the interest of all parties, including the victims, survivors and the accused that indictments provide, as far as possible, the allegations made again an accused, and simultaneously disclose the crime or crimes the accused is alleged to have committed. Defects in indictments should not be permitted to derail the quest for justice, nor should the drafting of defective indictments be condoned. The paper recognizes these difficulties while examining the process of drafting indictments by the OTP and, accordingly, reflects on the decisions of the trial chambers on preliminary motions relating to forms, contents and defects in indictments.
I. The Indictment: a Definition
Article 17(1) of the Statute of the International Criminal Tribunal for Rwanda authorises the Prosecutor to initiate investigations ex officio or on the basis of information obtained from any source, to assess the information received or obtained and to decide whether there is sufficient basis to proceed. Article 17(2) authorises the Prosecutor to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. Upon a determination that a prima facie case exists, and pursuant to article 17(4), the Prosecutor prepares an indictment. The indictment prepared by the Prosecutor contains a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute.
An indictment is therefore a document used to provide a concise statement of facts with regards to crimes that an accused is alleged to have committed, alone or in concert with others, who may or may not be known, and present or not present before the court. The facts giving rise to the alleged crime or crimes must be brief, precise and sufficient to establish a prima facie case against an accused. It is during trial that all allegations specified in an indictment are expanded on by the Prosecutor through use of witness statements, documents or exhibits, for the purpose of proving a case beyond a reasonable doubt. Under the Statute, preparation of an indictment commences with an investigation of the activities of a suspect as provided for in article 17(1). Following such an investigation, the Prosecutor makes an independent assessment of the relevant information and determines whether the facts constitute a prima facie case in accordance with article 17(4).
1.1 Prima facie Case and Use of Supporting Materials
When the Prosecutor determines that the evidence, as collected by the investigators, discloses a prima facie case, then the drafting process commences. However, neither the Statute nor the Rules of Procedure and Evidence define the term prima facie. According to Rule 47(B), a prima facie standard for determining when to commence the process of drafting an indictment is when the investigator produces “sufficient evidence to provide reasonable ground for believing that a suspect has committed a crime within the jurisdiction of the Tribunal”.
According to the Trial Chamber, the word “reasonable” in Rule 47(B) is to be associated with “fairness, moderation, sensibility and sound judgment.” Further, a Trial Chamber has stated:
The term reasonable grounds can be interpreted as facts and circumstances, which could justify a reasonable or ordinary prudent person in believing that a suspect has committed a crime. There must be facts, which raise a clear suspicion that the suspect is guilty of committing the offence, for reasonable grounds to exist. The facts must address the essential elements of the offence with which the suspect is charged. Furthermore, the Prosecutor must possess sufficient evidence to legally justify her actions in preparing and forwarding an indictment. It is clear that the term sufficient evidence in Rule 47(B) could be deemed to require conclusive evidence or evidence beyond a reasonable doubt for the presentation of an indictment… Consequently, the Tribunal reaffirms the Trial Chamber’s interpretation of the term prima facie in Article 17(4) of the Statute to signify a sufficient amount of evidence, justifying a reasonable suspicion that the inductee did in fact commit the crime for which he is charged.
According to the Trial Chamber, the term “prima facie” and “sufficient evidence” do not mean conclusive evidence or evidence beyond reasonable doubt.
In Ntakirutimana, the Trial Chamber sets a higher threshold. It states: “It is clear that the term sufficient evidence in Rule 47(B) could be deemed to require conclusive evidence or evidence beyond a reasonable doubt for the presentation of an indictment…” On the other hand, in Ruggiu, in concluding that: the term ‘prima facie’ and ‘sufficient evidence’ do not mean conclusive evidence or evidence beyond a reasonable doubt”, the Trial Chamber sets a lower threshold. These inconsistencies as to the required level of burden of proof the Prosecutor must discharge are yet to be authoritatively resolved.
At the confirmation hearing, neither supporting material nor witness statements made available to an accused may be used to fill any gaps in the indictment in order to establish a prima facie case. This is considered to be prejudicial to the accused. The indictment alone must provide a prima facie case. The Prosecutor is therefore not permitted to introduce material facts by, for example, calling of additional witnesses. If an indictment does not establish a prima facie case, the Prosecutor’s option is to apply for leave to amend the indictment. The rule on use of supporting materials or the calling of witness at trial to fill gaps in indictments must be seen against the rights of an accused as stipulated in article 20 of the Statute. Article 20(4)(a) guarantees the right of an accused to be informed promptly and in detail, in a language which he or she understands, of the nature and cause of the charge against him or her. This provision is construed to mean that an indictment at the time of confirmation must set out a prima facie case against the accused. The allegations therein must constitute an offence within the jurisdiction of the Tribunal.
On the use of supporting material during an Indictment confirmation hearing The Trial Chambers appear to concur. In Prosecutor v. Ruggiu, a Trial Chamber opined that it is prudent to read the indictment together with the supporting material, which will assist in the amplification of the allegations and charges against the accused. However, the Trial Chamber also reaffirmed the legal requirement that an indictment, when read on its own, must be able to inform the accused, with sufficient clarity, of the nature and cause of the charge or charges against him or her, without the need to refer to supporting material.
In Prosecutor v. Nyiramashuko & Ntahobali, the Trial Chamber pointed out that the supporting materials that accompany the indictment and copies of witness statements made available to the accused are basically the evidence that amplifies and supports the various counts in the indictments. It is through the indictment and the supporting material that the accused must be able to recognise the circumstances and the actions of which he or she is accused. On the other hand, the Trial Chamber also added that while it is important to read the indictment with the supporting material, the indictment must, on its own, be able to present clear and concise charges against the accused to enable him or her to understand the charges.
However, Nyiramashuko did not address the inconsistencies noted in Ruggiu and Ntakirutimana with respect to the prima facie burden of proof the Prosecutor must discharge at the confirmation hearing. It does, on the other hand, clarify the position on use of supporting material during confirmation hearing for the purpose of establishing a prima facie case. Rule 47(B) and (E) support the position adopted by Nyiramashuko. The Rule suggests that supporting materials may be used at the confirmation of an indictment for the purpose of establishing a prima facie case. It states:
The Prosecutor, if satisfied in the course of an investigation that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal, shall prepare and forward to the Registrar an indictment for confirmation by a Judge, together with supporting materials. [Emphasis added]
Further, Rule 47(E) provides:
The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the suspect.” [Emphasis added]
While it is important that the Prosecutor draft each count in a manner that will disclose a prima facie case for every charge in an indictment without necessarily resorting to supporting materials, it is submitted that reliance on supporting materials at the confirmation of the indictment is within the legal rights of the Prosecutor. This conclusion results from Rules 47(B) and (E) of the Rules of Procedure and Evidence. In practice, the Prosecutor may not need to rely on supporting materials at the confirmation proceedings, although legally entitled to under the Rules. However, during the trial, supporting materials provide essential assistance to all parties.
1.2 Confirmation of an Indictment
The Prosecutor is mandated to transmit the indictment and supporting material to the Registrar for submission to one of the judges of the Trial Chamber assigned to consider the indictment. The Prosecutor is to be notified by the Registrar of the date set for confirmation hearing of the indictment. Once a date is fixed and communicated to the Prosecutor, the confirmation hearing is then conducted on the specified date and time. In Prosecutor v. Ntakirutimana, the Trial Chamber stated that the legal process of confirming an indictment serves two purposes:
First … to ensure that the allegations against the suspect do constitute an offence within the jurisdiction of the Tribunal, and the second … to inform the suspect in a clear and concise manner the nature of the charges against him. At that stage of the proceedings the purpose of the indictment is not to put the accused in a position to prepare his defence, since the Prosecutor’s investigation against the accused may not be complete, but rather to ensure that the accused has full knowledge and understanding of the charges against him and is able to plead to these charges at his initial appearance, in accordance with Rule 62 of the Rules. The accused will have ample opportunity and adequate means to prepare his defence once he has received supporting documentation in accordance with Rule 66(A)(i) and disclosure of witness statements in terms of Rule 66(A)(ii) of the Rules.
Further, the Trial Chamber stated that:
A charge is not an accusation in the abstract but a concrete accusation of an offence alleged to have been committed by the accused. This accusation must have arisen as a result of certain facts that the Prosecutor has in her possession. The Prosecutor must be precise when formulating the counts in the indictment.
The purpose of a confirmation, or review of an indictment by a judge of the Trial Chamber, is to provide judicial review of the Prosecutor’s initial determination of a prima facie case before deciding to formally charge the suspect. In the review of an indictment, but prior to confirmation or rejection thereof, the judge of the Trial Chamber is required to hear the Prosecutor. At this stage, the Prosecutor has a duty to satisfy the judge of the Trial Chamber that the indictment discloses a prima facie case. This requirement is important because there are actually two levels of a prima facie standard of proof. In the first, based on the witness statements, the Prosecutor must be satisfied that the witness statements disclose a prima facie case. Once this burden is discharged, the drafting process is set in motion. In the second, at the confirmation hearing, the Prosecutor must satisfy the judge responsible for reviewing the indictment that the indictment discloses a prima facie case.
In support of submissions before the confirming judge, the Prosecutor may present additional supporting material. However, there is no requirement for a formal hearing or extensive oral proceedings to confirm an indictment. The judge may confirm or reject an indictment based primarily on the information contained therein and on the supporting materials submitted at the time of confirmation hearing, or earlier, when the Prosecutor has transmitted the indictment to the Registrar for onward submission to the Judge. The Prosecutor must provide the judge responsible for reviewing the indictment with such evidence that is sufficient to satisfy the Judge that a prima facie case exists against the accused. This requirement is particularly important because the indictment confirmation hearing is ex parte. The accused is not physically present nor does does counsel represent him or her. Prior to confirmation, the status of a person or persons whom the Prosecutor seeks indictment is that of a suspect and not an accused.
During the indictment confirmation hearing, the judge has a number of options. The judge may request the Prosecutor to present additional material in support of any or all counts, or to take any further measures which appear appropriate. The judge may confirm or dismiss each count or charge contained in an indictment. Further, the judge may adjourn the confirmation hearing so as to give the Prosecutor the opportunity to modify the indictment, or adjourn the hearing without prejudice to a future determination of the matter. If the judge dismisses a charge contained in an indictment, the Prosecutor may re-submit the charge for confirmation based on additional supporting material.
The decision to adjourn may be taken at the initiative of the judge or at the request of the Prosecutor. This is an appropriate measure in particular when it is intended to enable the Prosecutor to clarify the information contained in the indictment or to submit additional supporting material. The Prosecutor may amend or add to the charges contained in the indictment prior to its confirmation without seeking judicial authorisation. Prior to confirmation of an indictment, a decision to amend or add charges is within the discretion of the Prosecutor. After confirmation, the Prosecutor may amend or add charges only with the approval of the judge who initially confirmed the indictment or of a judge of a Trial Chamber if the trial proceeding has been instituted.
Once an indictment is confirmed, and subject to Rule 53, it shall be made public. Service of the indictment shall be effected personally on the accused at the time the accused is taken into custody of the ICTR or as soon as possible thereafter, by giving the accused a copy of a certified indictment effects personal service of an indictment on the accused. Upon confirmation of an indictment, the judge may also proceed to consider various pre-trial orders that may be requested by the Prosecutor. The orders sought by the Prosecutor include warrants for an arrest, detention, surrender or transfer of persons and any other orders as may be required for the speedy conduct of the trial.
II. Drafting of an Indictment
As a rule, all facts of a given crime attributed to an accused person are set out in an indictment against him or her. Further, for an indictment to be sustainable in law, facts alleging a crime must demonstrate the specific conduct of the accused constituting the offence. Consequently, statements made by witnesses to investigators are the primary sources of materials the Prosecutor relies on in initiating the drafting of an indictment. The statements used individually or collectively, provide the Prosecutor with the elements necessary to establish a prima facie case proving whether a suspect committed a crime or crimes as stipulated in articles 2, 3, or 4 of the Statute.
Based on statements of credible witnesses, the Prosecutor must be satisfied that the legal requirements stipulated in article 17(4) and Rule 47 are met. These requirements may be summarised as follows: (a) that a prima facie case exists against a suspect; (b) that the crimes committed are within the jurisdiction of the Tribunal; (c) that the indictment contains a concise statement of facts; and (d) that the indictment discloses a crime or crimes as stipulated in articles 2, 3 or 4 of the Statute.
Because the crimes that were committed in Rwanda were the product of a complex social, political and military situations dating back to before 1959, a historical and political section has been routinely included in indictments. This practice is new, and had not been used by prosecutors during the trials conducted by the International Military Tribunals at Nuremberg and Tokyo. The International Criminal Tribunal for the former Yugoslavia (ICTY) includes in its indictments a section on historical and political context. The ICTR, sharing the same Prosecutor with the ICTY, appears to have adopted the practice as a matter of course. There are two conflicting views as regards the inclusion of historical and political section in indictments. Some argue that it is pertinent to provide background information to events that preceded the commission of genocide and other crimes in Rwanda. According to this view, many foreign lawyers who serve the ICTR in various capacities, for instance, as judges, defence lawyers, trial attorneys and legal advisors, may not be well versed in the background to the conflict in Rwanda, particularly the origin and impact of the ethnic conflict that led to the commission of these horrendous crimes. On the other hand, it is clear that foreign lawyers, be they judges, defence lawyers, trial attorneys or legal advisors, by the very nature of their legal training and academic background, are in a position to read these historical, political or cultural backgrounds on their own, as part of their preparation for the trial. If the historical, political or cultural background to events preceding the genocide in Rwanda is deemed relevant to the criminal proceedings, either party may lead expert evidence in this area.
Although opinions on the use of historical and political section in indictments differ, the trial chambers of the ICTR have held that inclusion of such materials in the indictment does not violate Rule 47(C). In Prosecutor v. Nyiramashuko & Ntahobali, the Chamber concurred with the Prosecutor’s submission that the historical and political section provides a foundation of the Prosecutor’s case against the accused. Further, in Prosecutor v Niyitegeki, the Chamber observed that an indictment that includes historical background of the offences, and other useful information in connection to the crimes charged, could provide a greater degree of specificity and clarity to the allegations against the accused.
Details relating to names and particulars of the suspect on the one hand, and the description of, or reference to, victims of the alleged crimes are provided in the concise statement of facts. Rule 47(B) provides: “The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.” Thus, pursuant to Rule 47(B), the contents of an indictment include the full names and other particulars of the accused, such as the last known address. This requirement is important for the purpose of facilitating an arrest and transfers of the accused to the Tribunal’s Detention Facility at Arusha, Tanzania, the seat of the ICTR.
In describing the particulars of the accused, the word “names” is used in a narrow sense, and is intended to provide a clear and specific description of the accused so as to avoid confusing him of her with any other person who may have the same or similar names. As a matter of fact, it is not uncommon for two or more persons to have the same or similar first names and family names in Rwanda. This requirement therefore ensures certainty and guarantees, as far as it is practicably possible, that the right person is indicted and prosecuted.
Legal provision relating to “particulars” of a suspect is satisfied by a short explanation of the role of the suspect during the period that he or she is alleged to have committed the crime or crimes described in the concise statement of facts and specified in the charges.
2.1 Concise Statement of Facts
The inclusion of “a concise statement of facts” in an indictment is a legal requirement. While not defined in the Statute or the Rules, the Trial Chambers have defined the phrase “ concise statement of facts” to mean a brief statement of facts, which is comprehensive in expression. They have also suggested that the phrase demonstrates “the specific conduct of the accused constituting the offence.” In other words, a concise statement of facts must make clear to an accused the nature of the responsibility alleged against him or her, and the material facts by which his or her particular responsibility will be established by the Prosecutor. It is important for the Prosecutor to be specific on the nature of responsibility attributed to the accused since an accused may bear individual criminal responsibility for crime or crimes alleged to have been committed under paragraphs 6(1) or 6(3) or both of the Statute.
Consequently, where the Prosecutor alleges that the accused bears individual criminal responsibility under article 6(1) of the Statute, the specific acts or omissions that attribute direct criminal responsibility to the accused must be specified in the concise statement of facts with the responding article or articles which he or she is alleged to have violated stated in the charges. On the other hand, if individual criminal responsibility is alleged under article 6(3) of the Statute, the Prosecutor must provide in the concise statement of facts information that identifies the subordinate alleged to have acted under the instruction, direction or orders of the accused. Second, the information provided in the indictment must provide a statement that describes the nature of control or authority the accused exercised over the subordinate. Third, the information must describe the acts or omissions the subordinate did or did not do that make the accused, as a superior, bear individual criminal responsibility under the Statute.
However, there is no specific provision in the Statute or in the Rules precluding the Prosecutor from including facts not directly related to the accused, so long as they purport to clarify the larger picture and provide context to the commission of the alleged crimes. Consequently statements that are prima facie irrelevant have been retained in indictments and not ordered deleted from an indictment, despite serious objections from defence counsel. On the other hand, the trial chambers have ruled a number of phrases and words, when used by the Prosecutor in a concise statement of facts, as being too vague. Some of the phrases or words that the trial chambers have ruled to be too vague include: “in or around”; “during the time of events alleged in the indictment”; “from a date unknown to the Prosecutor”; “including but not limited to”; “or”; “among others”, or “inter alia”. The Prosecutor has been ordered to delete, remove or modify these phrases and words in the indictments because they are too vague and therefore lack clarity.
2.2 Specific Facts
The Trial Chambers have recommended, for inclusion in a concise statement of facts, an appropriate degree of precision to provide the necessary information to enable the accused to prepare his or her defence effectively and efficiently. Consequently, the Prosecutor has been urged to pay more attention to and focus on the special conduct of the accused and, particularly, to ensure that the facts contained in indictments specifically relate to the charges in the indictment. In this context, the Prosecutor must provide specific facts alleging violations of a specific provision of the Statute.
The phrase “specific facts” includes a description of the capacity under which an accused performed or omitted to perform the act or acts for which he or she is charged. For instance, the Prosecutor must indicate the position the accused held, in society, at the time set out in the indictment. Whether the accused was a soldier, and therefore a combatant, or whether the accused was a government minister, and therefore a civilian, must appear in the indictment. Furthermore, where an accused held two or more positions, for example, an army officer on active military duty who is simultaneously a cabinet minister, say Minister for Defence, this must also appear. All the positions held by an accused during the relevant period must be indicated in the indictment. Clear specification of the capacity of the accused helps in determining whether the accused is responsible under paragraphs 6(1) or 6(3) or both of the Statute.
Significantly, the indictment must leave no room for doubt as to what the accused is alleged to have done, or failed to have done, at a particular venue on a particular date, during a particular period and in what capacity. It is, for instance, not sufficient for the Prosecutor merely to allege that the accused planned, instigated, or participated in the commission of crimes against humanity (murder) or crimes against humanity (extermination), pursuant to paragraphs 3(a) or 3(b) of the Statute, without identifying the specific acts or omissions alleged to have been committed. Mere allegations, without mention of acts or omissions, are insufficient.
For example, in charging an accused with crimes against humanity (murder) and crimes against humanity (extermination), the count on murder as a crime against humanity must indicate that the victim is dead and identify the victim by name. If the victim was killed on orders of the accused, the indictment must specify the name or functional title of the subordinate who was so ordered. The indictment must also indicate the type and manner in which the order was issued and whether the accused was present when the victim was killed. In the absence of the specific names, and proper identification of persons alleged to have been killed by the accused, and the proper identification of the accused as the person who committed the crime, and if a superior, the person who issued the order to kill the victim, the count of murder under article 3(a) of the Statute cannot be sustained. Similarly, without a specific description, either by name or functional title, of the subordinate ordered by the accused to commit the crime of murder, the charge will be dismissed.
When an accused is charged with a count of the crime against humanity of extermination, the Prosecutor must provide facts to show the circumstances under which the victims were killed, an estimate of the number of persons killed by the accused or on his or her orders, and that the acts or omissions rise to the level of extermination. Under the charge of extermination, it is not a requirement that the persons alleged to have been killed by the accused, or on his or her orders, be individually identified. However, where the subordinate, on the orders of the accused, commits the crime, the name or functional title of the subordinate must be specified in the charge. Proof of the numbers of persons killed is sufficient. Whether killing five, ten or twenty persons amounts to extermination is a matter for the court to decide after considering all the circumstances. There are no hard and fast rules about numbers of persons who must have been killed before a crime is deemed to constitute extermination under article 3(b) of the Statute.
A count in an indictment alleging “other inhumane acts” pursuant to article 3(i) of the Statute may be held to be insufficiently precise where the acts as indicated above are not clearly spelled out in an indictment. The Trial Chamber directed the Prosecutor “to specify the act or acts which the accused is alleged to be responsible for, constituting inhumane acts under Article 3(i) of the Statute”. Similarly, in a charge of conspiracy to commit genocide under article 2(3)(b) of the Statute, the Tribunal has stated that the “Prosecutor must be precise when formulating the counts in the indictment” and has “directed the Prosecutor to mention the names or other identifying information of the person or persons the accused is alleged to have conspired with, to commit genocide”.
Where a count in an indictment alleges that the accused was responsible for the killing or causing of serious bodily or mental harm to members of the Tutsi population, a Trial Chamber held that the word “or” used in the indictment suggests that the acts alleged in the count are in the alternative. It said the phrase alleging “killing or causing serious bodily or mental harm” in the count is vague and lacks legal precision because the word “or” is used in the indictment. The Trial Chamber ordered the Prosecutor to specify in the count whether the accused is alleged to have committed acts of genocide under sub-paragraphs 2(2)(a) or 2(2)(b) of the Statute, or whether it is alleged that the accused committed acts of genocide under both articles.
On the other hand, a Trial Chamber appeared to accept the Prosecutor’s argument that the rule against duplicity does not prevent different means of committing the same offence from being described in the one count. The Prosecutor argued, and the Trial Chamber agreed, that the rule against duplicity is aimed at preventing more than one offence from being charged in the same count. The effect of this decision seems to suggest that a single count in an indictment can allege more than one of the acts enumerated in the Statute as constituting genocide, but the wording of the count must indicate whether these acts are relied upon cumulatively or in the alternative.
For the requirement of “specific facts” to be met, it is necessary for an indictment to identify whether the accused carried out such act or acts alone or in concert with others. For instance, if a crime of conspiracy to commit genocide is alleged in an indictment, the details regarding which person or persons the accused is alleged to have acted with must be provided. The Prosecutor must provide a clear identity of person or persons the accused is alleged to have conspired with, the place were the conspiracy was carried out and against whom the conspiracy was directed. Consequently, the Prosecutor must specify the identity of other participants, if known. If the Prosecutor is unable to identify those directly participating in the alleged criminal acts, then it may be sufficient for the Prosecutor to provide their identity at least by reference to their category, functional title, or their official position as a group. The identity of the co-conspirators is important for the accused to appreciate the nature of the charge. Similarly, it is necessary to specify the identity of the subordinates alleged in the indictment. Consequently, the phrase or words such as “and others” and “or” should not be included in a conspiracy indictment.
An indictment must also provide information as to the victims of the acts the accused is charged with. The Tribunal has taken judicial notice of the difficulty in describing the victims with as much precision and detail as possible, because the victims involve masses of people. However, this requirement is met when the Prosecutor provides as much precision as is possible under the circumstances.
2.3 Legal Elements of Crimes under the Statute
One of the objectives of a concise statement of facts is to establish a nexus between the acts or omissions of which the accused is charged, and elements of crimes that meet the requirements of the article under which the accused is charged. However, there is no requirement in the Statute or the Rules that an indictment must prove the existence of the legal elements of a particular crime. This is a matter for the trial. It is sufficient for the Prosecutor to list the crimes of which the accused is charged although it is important for the Prosecutor to try to show, through statements of facts, that the element of the crime or crimes the accused is charged with exists. Although the Prosecutor need not explain in the indictment what is required at law to show that war crimes, for instance, have been committed, she still has the duty to establish that the acts alleged in the indictment constitute the crime or crimes charged.
In principle, it is possible for the Prosecutor to draft counts only in terms of the Statute and therefore in terms of absolute generality, in which case it is left to the material facts pleaded in respect of that count to reveal the specific details that are required. However, as a matter of practice, each count must include specific details so as to identify the victim, the place and approximate date of the alleged crime or crimes, and the means by which the crime or crimes was committed by the accused.
2.4 The Charges
In drafting the charges, the Prosecutor has a number of options. For instance, an accused person may be charged alone, or charged jointly with other persons alleged to have committed the same or different crimes in the course of the same transactions. Further, the Prosecutor may join confirmed indictments of persons accused of the same or different crimes committed in the course of the same transaction, for the purpose of a joint trial, but only with leave of the Trial Chamber. Finally, two or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the same accused committed the said crimes.
There are no limitations on the number of counts the Prosecutor may prefer. However, it is prudent to charge an accused with as few counts as is possible in order to avoid cumulative charges, unless many counts are strictly necessary.
In counts comprising the charges in an indictment, drafting commences by naming the accused and stipulating the provision of the Statute under which the accused is charged, specifying the date or dates on which the alleged crime or crimes were committed, and the place or places where the crimes were committed. In the count, the Prosecutor must indicate clearly whether the individual criminal responsibility of the accused is alleged under paragraphs 6(1) or 6(3) or both. Paragraphs in the concise statement of facts giving rise to these different aspects of individual criminal responsibilities may be identified and referred to in the count. Omission does not render an indictment defective.
Further, the particulars of the crime or crimes alleged to have been committed by the accused are spelled out and specific references to paragraphs in the concise statement of facts supporting the allegations identified and named in the count. The count in the charge concludes by asserting that acts or omissions the accused is alleged to have committed are punishable in reference to articles 22 and 23 of the Statute. The place and date of the drafting of the indictment must be provided and the Prosecutor must sign the indictment.
Defence counsel routinely argues that an indictment is imprecise because it does not identify the victim, or state a specific time and specific place of commission of the crime or crimes. Rule 47 of the Rules is, as a matter of course, often cited to support defence submissions. The Trial Chambers have acknowledged the special difficulty of determining exact times and places of acts or omissions charged in the indictments. The Trial Chambers have upheld indictments alleging crimes committed over extended time periods. However, the Trial Chambers have, also simultaneously, attempted to place limits to the periods alleged in the indictments. The decisions of the Trial Chambers are emphatic that an accused may not be convicted of a crime that has not been specifically alleged in the indictment.
III. Reflections on the Drafting of Indictments
The ICTR Trial Chambers recognise that strict compliance with the rules requiring that indictment identify the suspect and inform him or her in a clear and concise manner of the nature of the charges and the facts on which they are based is an essential element of a fair trial. They acknowledge the special difficulty of identifying victims of mass and sustained killings, extending over 100 days period and, of determining exact times and places of acts or omissions charged in the indictment in respect of each killing. The Trial Chambers acknowledge that the Prosecutor cannot be expected to individually identify the more than 800,000 persons killed in Rwanda during the genocide and crimes against humanity that took place in 1994. In addition, facts attributing individual criminal responsibility must be specific on whether the Prosecutor alleges responsibility under paragraphs 6(1) or 6(3) or both paragraphs of the Statute. In Prosecutor v. Niyitegeka, for example, the Trial Chamber ordered the Prosecutor to identify the alleged acts of the accused engaging his individual criminal responsibility under paragraph 6(3) of the Statute from those acts engaging individual criminal responsibility under paragraph 6(1) of the Statute. The Prosecutor’s failure to make the distinction in the areas of individual criminal responsibility is fatal to the indictment.
Thus, the jurisprudence of the ICTR in respect to form, contents or defects of indictments deals with procedural law but affects the subsequent application of substantive law in a trial. Although the Appeals Chamber, so far, has not dealt directly with procedural issues that relate to the drafting of indictments, it has nonetheless considered issues that generally concern procedural law, particularly in Barayagwiza. In that case, the appellant argued that by requesting the courts in Cameroon to detain him, thereafter leaving him to languish in jail in violation of the Rules, the Prosecutor had forfeited her right to file an indictment and proceed with criminal prosecution. In granting the appellant’s prayer to dismiss the indictment, with prejudice to the Prosecutor, the Appeals Chamber stated:
The Tribunal – an institution whose primary purpose is to ensure that justice is done – must not place its imprimatur on such violations. To allow appellant to be tried on the charges for which he was belatedly indicted would be a travesty of justice. Nothing less than the integrity of the Tribunal is at stake in this case. Loss of public confidence in the Tribunal, as a court valuing human rights of all individuals – including those charged with unthinkable crimes – would be among the most serious consequences of allowing the Appellant to stand trial in the face of such violations of his rights. As difficult as this conclusion may be for some to accept, it is the proper role of an independent judiciary to halt this prosecution, so that no further injustice results.
Alleging the existence of new facts, the Prosecutor applied for a review of the judgment. The Prosecutor argued that she had never seen an instance of a Prosecutor being prohibited by a court from further prosecution. The Prosecutor further submitted that such a prohibition was at variance with her completely independent position and was contrary to her duty as a Prosecutor. Commenting specifically on the gravity of the crimes the appellant was charged with, the Prosecutor stated:
She had personally seen 500 skulls in Rwanda. She said that the appellant was responsible for the death of over … 800,000 people in Rwanda, and the evidence is there. Irrefutable, incontrovertible, he is guilty. Give us the opportunity to bring him to justice.
Objecting to the Prosecutor’s line of argument, counsel for the Appellant charged that “[t]he Prosecutor had expressed herself in a more aggressive manner than [she] should … and had talked as if she was a depository of justice before the Appeals Chamber”. The Appeals Chamber noted the existence of “new facts” submitted by the Prosecutor and observed:
[We] consider that this implies that the appellant himself recognises that the real reason for the decision to release him [the appellant] was the finding by the Appeals Chamber that the Prosecutor (and, through her, the Tribunal) was responsible for the delay in Cameroon. It follows that if, as is shown by the statements of Ambassador Scheffer and Judge Mballe, the Tribunal [was] not responsible, the Appeals Chamber would not have had occasion to consider whether the provisions applied and whether the appellant should be released in accordance with Rule 40 bis (H).
The Appeals Chamber ruled: “Without disturbing the previous holding, made on the facts then known to the Appeals Chamber, that Rule 40 bis was applicable to the Cameroon period … the conclusion is reached that, on the facts now known, the Appeals Chamber would not have held that the Rule applied to that period, with the consequence that the Rule would not have been regarded as yielding the results which the Appeals Chamber thought it did.”
The effect of the Appeals Chamber’s decision was to permit the Prosecutor to file new indictments against Jean-Bosco Barayagwiza. However, the Appeals Chamber took the opportunity to comment on the role of the Prosecutor based on an earlier exchange between the Prosecutor and counsel for the appellant. The Appeals Chamber observed that:
As to her functions, the Prosecutor appeared to be of a mind that the independence of her office was invaded by a judicial decision that an indictment was dismissed and should not be brought back. She stated that she had never seen an instance of a prosecutor being prohibited by a court from further prosecution… such a prohibition was at variance with her completely independent position and was contrary to her duty as a prosecutor. Different legal cultures are involved in the work of the Tribunal and it is right to try to understand those statements. It does not appear… that the framework provided by the Statute of the Tribunal can be interpreted to accommodate the view of some legal systems that the independence of a prosecutor does not go so far as to preclude a court from determining that, in proper circumstances, an indicted person may be released and may not be prosecuted again for the same crime. The independence with which a function is to be exercised can be separated from the question whether the function is itself exercisable in a particular situation. A judicial determination as to whether the function may be exercised in a given situation is part of the relief that the court orders for a breach of the person’s rights committed in the course of a previous exercise of those functions. This power of the courts has to be sparingly used; but it exists.
The Appeals Chamber went to great lengths to explain that the Prosecutor of the ICTR is required to be neutral in a case and that she is a party, not a partisan, in the criminal proceedings. The Appeals Chamber stressed that because of this neutrality the Prosecutor is obliged to disclose all exculpatory material to the defence. The implication is that while a prosecution must be conducted vigorously, there is room for the injunction that prosecuting counsel “ought to bear themselves rather in the character of ministers of justice assisting in the administration of justice”. Further, the Appeals Chamber noted that the prosecution takes the position that it would not prosecute without itself believing in guilt. The point of importance is that an assertion by the prosecution of its belief in guilt is not relevant to proof. While judicial traditions vary, and the Tribunal must benefit from them, the Appeals Chamber is of the view that:
The system of the Statute under which the Tribunal is functioning will support a distinction between an affirmation of guilt and an affirmation of preparedness to prove guilt. In this case [the Appeals Chamber would interpret] what was said as intended to convey the latter meaning, but the strength with which the statements were made comes close to the former that [the Appeals Chamber] consider it right to say that the framework of the Statute is sufficiently balanced and sufficiently stable not to be upset by the spirit of the injunction referred to concerning the role of a prosecutor.
The Appeals Chamber, after balancing the conflicting positions argued by the Appellant and Prosecutor respectively, decided to permit the Prosecutor to prepare new indictment against the Appellant. Substantive law, for the moment at least, triumphed over strict adherence to procedural law. To that extent, the Bayagwriza decision positively, develops human rights, and humanitarian, legal principles.
A resolution of a clash between the demands of substantive justice, on the one hand, and strict compliance of procedural rules, on the other, may not always produce equitable justice. Where the applicable norms are substantially benign, the ideal of procedural justice carries moral weight that cannot be rightly disregarded. On the other hand, when the applicable legal norms are substantially unacceptable, neither procedural justice nor procedural injustice has any consistent moral weight.
The legal norms adopted in the ICTR Statute are substantially acceptable and therefore the Appeals Chamber, in my considered opinion, reached the proper conclusion in permitting the Prosecutor to proceed with indictment against Barayagwiza. Significantly, the Appeals Chamber’s review decision is a precedent that permits the Prosecutor to bring new charges by re-drafting an indictment whenever it is held by the confirming judge to be defective. A confirming judge may therefore dismiss an indictment when defective, but may not order the Prosecutor not to bring new charges against the suspect.
 Prosecutor v. Bizimana et al. (Case No. ICTR-48-44-I), Aug. 28, 1998 (consists of 108 pages).
 Prosecutor v. Musabyimana (Case No. ICTR-2001-62-I), May, 2001 (consists of 8 pages)
 With respect to preliminary motions, defence counsel often invoke Rule 72 of the Rules of Procedure and Evidence, as amended by the judges at the Seventh Plenary Meeting on February 21, 2000. Here are the relevant excerpts:
(B) Preliminary motions by the accused are:
- Objections based on jurisdiction;
- Objections based on defects in the form of the indictment;
- Applications for severance of crimes joined in one indictment under Rule 49, or for separate trials under Rule 82(B);
- Objection based on the denial of request for assignment of counsel.
(G) Objections to the form of the indictment, including an amended indictment, shall be raised by a party in one motion only, unless otherwise allowed/decided by a Trial Chamber.
(H) For the purposes of Rule 72(B)(i) and (D) an “objection based on lack of jurisdiction” refers exclusively to a motion which challenges an indictment on the ground that it does not relate to:
- any of the persons indicated in Articles 1, 5, 6 and 8 of the Statute;
- the territories indicated in Articles 1, 7 and 8 of the Statute; the period indicated in Articles 1, 7, and 8 of the Statute; or
- any of the violations indicated in Articles 2, 3, 4 and 6 of the Statute.
(I) An appeal brought under Rule 72(D) may not be proceeded with if a bench of three Judges, assigned by the Presiding Judge of the Appeals Chamber, decides that the appeal is not capable of satisfying the requirements of paragraph (H), in which case the appeal shall be dismissed.
 Specific sources mentioned in article 17(1) include governments, United Nations organs, inter-governmental and non-governmental organisations.
 In carrying out these tasks, article 17(2) authorises the Prosecutor, as appropriate, to seek the assistance of the State authorities concerned.
 Article 17(4) of the Statute provides: “Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of facts and the crime or crimes with which the accused is charged under the statute. The indictment shall be transmitted to a judge of the Trial Chamber.”
 Rule 47(B) provides: “The Prosecutor, if satisfied in the course of an investigation that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal, shall prepare and forward to the Registrar an indictment for confirmation by a Judge, together with supporting material.”
 Prosecutor v. Ntakirutimana (Case No.ICTR-96-10-T), Decision on a Preliminary Motion Filed by Defence Counsel for an Order to Quash Count 1, 2, 3, and 6 of the Indictment, June 30, 1998, para. 6.
 Ibid. paras 6-8 (emphasis added).
 Prosecutor v. Ruggiu ( Case No.ICTR-97-32-T), Decision, May 24, 1999, para. 7.
 Ibid., para. 13.
 Prosecutor v. Nyiramashuko & Ntahobali (Case No.ICTR-97-21-T), Decision on Nyiramashuko’s Preliminary Motion based on Defects in the Form and Substance of the Indictment, November 1, 2000, paras. 11-13.
 Article 18 of the Statute provides:
- The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
- Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.
 Rule 47 (A) and (C) provide:
- An indictment, submitted in accordance with the following procedure, shall be reviewed by a Judge designated with accordance with Rule 28 for this purpose.
(C) The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.
 Prosecutor v. Ntakirutimana, supra note 8, para. 10.
 Ibid., para. 21.
 Rule 47(D) and (E) provide:
(D) The Registrar shall forward the indictment and accompanying material to the designated Judge, who will inform the Prosecutor of the scheduled date for review of the indictment.
(E) The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the suspect.
 Rule (F) provides:
(F): The reviewing Judge may:
- Request the Prosecutor to present additional material in support of any or all counts, or to take any further measures which appear appropriate;
- Confirm each count;
- Dismiss each count; or
- Adjourn the review so as to give the Prosecutor the opportunity to modify the indictment.
 Rule 47(I) provides: “The dismissal of a count in an indictment shall not preclude the Prosecutor from subsequently bringing an amended indictment based on the acts underlying that count if supported by additional evidence.”
 Rule 50 provides:
(A) The Prosecutor may amend an indictment, without prior leave, at any time before its confirmation, but thereafter, until the initial appearance of the accused before a Trial Chamber pursuant to Rule 62, only with leave of the Judge who confirmed it but, in exceptional circumstances, by leave of a Judge assigned by the President. At or after such initial appearance, an amendment of an indictment may only be made by leave granted by a Trial Chamber pursuant to Rule 73. If leave to amend is granted, Rule 47(G) and Rule 53 bis apply mutatis mutandis to the amended indictment.
(B) If the amended indictment includes new charges and the accused has already appeared before a Trial Chamber in accordance with Rule 62, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges.
(C) The accused shall have a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of the new charges.
 Rule 53 on Non-disclosure provides:
- In exceptional circumstances, a Judge of a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order.
- When confirming an indictment the Judge may, in consultation with the Prosecutor, order that there be no public disclosure of the indictment until it is served on the accused, or, in the case of joint accused, on all the accused.
- A Judge or Trial Chamber may, in consultation with the Prosecutor, also order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice.
 Rule 52 of the Rules.
 Rule 53 bis of the Rules.
 Rule 47(G) provides: “The indictment as confirmed by the Judge shall be retained by the Registrar, who shall prepare certified copies bearing the seal of the Tribunal. If the accused does not understand either of the official languages of the Tribunal and if the language understood is not known to the Registrar, a translation of the indictment in that language shall also be prepared, and a copy of the translation attached to each certified copy of the indictment.”
 Prosecutor v. Nyiramashuko & Ntahobali, supra note 13, para. 54.
 Ibid., para. 10.
 Prosecutor v Niyitegeki (Case No. ICTR-96-14-T), Decision on Prosecutor’s Request for Leave to File an Amended Indictment, June 21, 2000, at para. 33(2)(c).
 Rule 47(C) of the Rules
 Prosecutor v. Nahimana (Case No.ICTR-96-11-T), Decision, November 24, 1997, para. 20; Prosecutor v. Ntabakuze & Kabigali (Case No. ICTR-97-34-T), Decision, October 5, 1998, para. 11.
 Prosecutor v. Nsengiyumuva (Case No.ICTR-96-12-I), Decision, May 12, 2000, paras. 1-4.
 Article 6(1) provides: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.”
 Article 6(3) provides: “The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
 Prosecutor v. Nyiramashuko & Ntahobali, supra note 13, paras. 53-54.
 See Prosecutor v. Nahimana, supra note 30, para. 26.
 Ibid., para. 30.
 Prosecutor v. Nsengiyumva, supra note 31, para. 15.
 Prosecutor v. Ntakirutimana, supra note 8, paras. 22-24.
 Ibid., para. 21.
 Ibid., para. 15.
 Ibid., paras. 12-14.
 Prosecutor v. Nyiramashuko & Ntahobali, supra note 13, para. 54.
 Prosecutor v. Nahimana, supra note 30, para. 26.
 Prosecutor v. Kanyabashi (Case No. ICTR-96-15-I), Decision, May 31, 2000, para. 5.21(c).
 Prosecutor v. Bagambiki et al. (Case No.ICTR-97-36-I), Decision, September 24, 1998, p. 2.
 Rule 47.
 Rule 48.
 Rule 48 bis.
 Prosecutor v. Nsengiyumuva (Case No.ICTR-96-12-I), Decision on the Defence Motion to Strike Out the Indictment, May 24, 1999, para. 10; Prosecutor v. Ntagerura (Case No. ICTR-96-19-I), Decision on the Preliminary Motion Filed by the Defence Based on Defects in the Form of the Indictment, November 26, 1997, para. 23.
 Prosecutor v. Nsengiyumuva, ibid. the Decision affirming charges spanning the months of April through June 1994; Prosecutor v. Nyiramashuko & Ntahobali, supra note 13, the Decision affirming charges spanning April through July 1994.
 Prosecutor v. Ntagerura (Case No. ICTR-96-19-I), Decision on the Preliminary Motion Filed by the Defence Based on Defects in the Form of the Indictment, November 28, 1997. At paragraph 23, the Chamber ordered the Prosecutor to make amendments where the indictment referred to a period between January 1 and July 31, 1994; Prosecutor v. Nahimana, supra note 30, at para. 30, the Chamber ordered amendments where the indictment referred to a period approximately between January 1 and July 31, 1994.
 Prosecutor v. Akayesu (Case No.ICTR-96-T), Judgment, September 2, 1998, para. 678.
 Prosecutor v. Ntabakuze & Kabigali (Case No. ICTR-97-34-T), Decision on the Defence Preliminary Motions Relating to Defects in the Form and Substance of the Indictments, October 5, 1998, para. 11; Prosecutor v. Nyiramashuko & Ntahobali (Case No.ICTR-97-21-T), Decision on the Preliminary Motion by Defence Counsel on Defects in the Form of the Indictment, September 4, 1998, paras. 5-8.
 Prosecutor v. Nsengiyumva, supra note 53, para. 10; Prosecutor v. Ntagerura (Case No.ICTR-96-19-I), Decision on the Preliminary Motion Filed by the Defence Based on Defects in the Form of the Indictment, November 28, 1997, para. 23.
 Prosecutor v. Niyitegeka (Case No. ICTR-96-14-T), Decision on Defence Motion on Matters Arising From Trial Chamber Decisions and Preliminary Motion Based on Defects in the Form of the Indictments and Lack of Jurisdiction, November 20, 2000, para. 13.
 Barayagwiza v. Prosecutor (Case No. ICTR-97-19-AR 72), Decision, November 3, 1999, para. 112.
 Article 25 provides: “Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chamber or Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Criminal Tribunal for Rwanda an application for review of the judgment.”
 Barayagwiza v. Prosecutor (Case No. ICTR-97-19-AR 72), March 31, 2000, para. 67.
 Ibid., para. 62.
 Ibid. para. 66.
 Ibid. para. 68.