Amsterdam Centre for International Law

Research Project ‘International Criminal Procedure: In Search of General Rules and Principles’

Funded by the Dutch Organization for Scientific Research (NWO)

Supervised by Professor Dr. G.K. Sluiter

Field Research, ICTR, Arusha, Tanzania, May-June 2008

Interviewers: Karel De Meester and Sergey Vasiliev, Researchers, University of Amsterdam

Date of the interview: 21 May 2008

Interview Transcript

Dr. Alex Obote Odora, Chief of ALAD

Introduction

1.         Concerning your self-perception, is your function as a member of the OTP primarily shaped by your national background, or by your view of this Tribunal as a sui generis procedural system?

A.        I think it is a little bit of both. Before joining the Tribunal, I practised law in different jurisdictions. I practiced law in Zambia where I was a state advocate. I practised before the High Court and the Supreme Court (1977-1980). I also practiced law in Uganda, before the High Court and all courts subordinate thereto as a private legal practitioner (1981-1987). I was earlier called to the Uganda Bar in 1977. After successfully completing my Bar Course taught law at the Law Development Centre (1975-1977) before leaving the country and moved to Zambia. With respect to teaching at law schools, After 1987 I moved to Sweden where I studied for an LLM and LLD degrees in International Criminal Law & International Humanitarian Law. Later I conducted a post-doctoral studies in the United States based at the United Nations Office of Legal Affairs, New York as a visiting research scholar. My research focused on Terrorism and the Law of Armed Conflict. I taught at the University of Stockholm and at the University of Swaziland.  I was a visiting scholar at a number of other universities.  I was conversant with both Common Law and Civil Law systems. When I joined the ICTR, I noticed  that lawyers who have the advantage of knowing both the common law system and the civil law system really do not  focus on the finer distinctions between civil and common law systems, because the two legal systems complement one another. In certain aspects, civil law proceedings are better than the common law. In some aspects, the common law is better. I think that my teaching of comparative and international criminal law has helped me to view the systems as complementary.

Q.        So for you it was not difficult to adjust yourself to this new system?

A.        It was not difficult at all. When you recognize the different role of an Investigating Judge as it might be in France, Italy or Venezuela, then you compare that with the role of a Judge in the United Kingdom or the United States, for example, you find that their roles are very different. The role of a Prosecutor in the common law system is different from the role of the Prosecutor in the civil law system. Here in the OTP, we have lawyers from both jurisdictions. What does not emerge from your question is that we also have lawyers here from the Islamic countries, who know Islamic jurisprudence. When they join the OTP, we conduct induction course to ease the transition from their jurisprudence to the civil/common law systems. When you visit a courtroom, you will notice that the defence lawyers from the continental system really have difficulties handling cross-examination of the witnesses. We also find that lawyers on the prosecution side from the continental legal system have difficulties leading witnesses and conducting cross-examination. So what we have done is to blend our prosecution teams. Each trial team has common law and continental lawyers.

Q.        When you referred to Islamic law and jurisprudence and the law of Sharia, to what extent has it had an impact on the procedural law and practice at this Tribunal?

A.        It has not, actually. What has happened is that, in formal discussions, you will find a lawyer from Malaysia or Pakistan for example, who is working here, and then in the group discussion, they will bring their ideas. Then we say okay, this is the process. It has not really impacted on our work. It has been almost like an informal preparatory discussion, where they want to learn about what other systems are. I just mentioned it generally. We get people from all over the UN system and member states. Some of those countries are Islamic states. When they come here, they want to learn the process.

2.         To what extent does having so many people from so many legal backgrounds working together create problems, tensions or misunderstandings? Have there been any problems in terms of efficiency?

A.        Surprisingly, we have done much better. I would have expected worse. We have done much better, because we do not only have people from different countries, but also from different legal backgrounds, and people who have been taught differently. In some universities, criminal law courses are not compulsory, so there is a possibility of a law graduate being admitted to practise law, and coming here, when that person has not actually studied criminal law. But in a number of universities in the Commonwealth countries, criminal law is compulsory for the basic law degree. In many of the US universities, criminal law course is not compulsory. It is an optional course. When you meet here, you should first ensure that you are all on the same page. Otherwise you are going to have difficulties. Then, in the context of legal principles and principles of legality, different jurisdictions understand things differently. So the style of drafting an indictment differs from jurisdiction to jurisdiction. As a result, when we come here, we have to agree on the modalities of drafting an indictment. There are positions that we must take in respect to each of these different things, because of our different legal backgrounds.

Q.        In terms of continuity and personnel turnover at this Tribunal, has the situation changed, compared to the early years?

A.        The turnover has been generally high. However, I think that the situation has changed and qualitatively improved, in the sense that we are now getting people who have worked with other international tribunals, like the Tribunal for the former Yugoslavia or people from Sierra Leone, who come and work here. We have also been sending people elsewhere. Also, in the last seven years or so, there has been wider jurisprudence on the subject. So those who are willing to read, even if they are not here or with any reasonable experience from other international courts or tribunals, they may, within a short span of time, get the general picture of how the system works. At the earlier time it was difficult, because there was no jurisprudence to guide the staff from seeing the big picture. People came with their own views criminal investigations collection of evidence, drafting indictments and prosecutions. That partly explains why we have these interesting multi-person indictments, which had 29 accused persons. Even if you do not look at the legal problems, look at the practical problems. How do you find a courtroom for 29 accused persons with probably 40 defence lawyers (assuming one accused is represented by two defence attorneys) and 20 prosecuting counsels (assuming one prosecution attorney focuses on one or two accused persons), not addressing the numbers of Judges’ support staff and additional personnel, such as interpreters/translators and security personnel inside the court room. It was simply not practicable. But people come with different ideas – earnest ideas. Some of them want to do it in the way of Nuremberg, using one big indictment with conspiracy, connecting all members of the government/military in the planning and execution of the criminal offence and that is what the early prosecution team did. Over the years, we have also gone through trial and error. And as a process, there are some areas where we have improved, and others that still need improvement. But I think we have moved forward in the right positive way.

 

3.         Many commentators claim that the procedural style of this Tribunal is largely adversarial. Would you consider that suitable to the special purposes and nature of this trial, and for the purposes of improving procedure, would you consider it overly or insufficiently adversarial?

 

A.        Yes, much aspect of adversarial procedural applies here. However, that in itself, is not really too much of my problem. My primary concern is our Rule 89(C), which allows the admission of any statement the Judges consider relevant. As a result, the Chamber admits almost everything presented either by the prosecution or the defence, and then, at a later stage, assesses the probative value of it and thereafter determines whether to admit or reject the statements in whole or in part as evidence is to determine the case. I think that this practice would offend many legal systems because of inherent bias – that is, admission of hearsay statements that are then put on record incriminating or exculpating – yet such evidence may eventually be found by the court not to be admissible. Even if later rejected, it is already on the record, unless it is expressly expunged. This practice offends some procedural principles in common law. With the continental legal system, because the Judges themselves have conducted investigations, there is an inbuilt procedure for protecting the quality of evidence admitted. In the common law system, there are rules against hearsay. The admissibility rules have been collapsed into Rule 89(C) where the party to the proceedings do not enjoy the protective measures that an accused or a prosecutor enjoys from evidence collected by an Investigating Judge in a continental system, and accused or prosecutor does not enjoy the benefit of exclusion of hearsay evidence that one would normally benefit from in the common law system. Even irrelevant information, once deemed relevant, will be admitted even if it is hearsay. As a result, for example, we have had a lot of discussion before different Trial Chambers about the shooting down of the plane in which the Presidents of Rwanda and Burundi died on 6 April 1994, and why it was not being investigated by the Prosecutor. But anybody who seriously looks at the law of war would discover that even if the RPF did shoot down the plane, and I do not suggest that they did, that conduct would not necessarily constitute a war crime. So there is no need to bring that issue as part of a serious discourse before a Trial Chamber. Let me elaborate on the role of combatants in armed conflicts and their responsibility under the laws of war. If a Rwandan government soldier shot and killed the President, who is an army general and commander-in-chief of the Rwanda army, that act of shooting the president, depending on the context and circumstances, may  not necessarily be a war crime without additional proof as to whether or not he was horse de combat.  The issue to consider is whether he was a legitimate military target or a collateral damage, that is, it was an act of unintentional killing, the so-called fog-of-war. Similarly, a mere allegation that the RPF shot down the plane carrying the  President and he died, even if it lacks the elements for proving a war crime, it would be admissible under Rule 89(C). In other words, all information about the death of the Presidents of Rwanda and Burundi must then be discussed in court, becomes part of the trial transcript, long before the Judges decide whether the evidence are credible and admissible. The same analysis applies to the Bruguière report and the Spanish indictment. Those allegations are not within the ambit of this Court. They have not been served on the Prosecutor, they are not evidence at the ICTR trials and the documents are not formally before any Judge of the ICTR. But the narrative in the public press and to some NGOs is to present it as it were part of the Defence case and it is the prosecutor who is not cooperating. Yet, the defence (or the NGO who claim to attest to the truthfulness of the reports) are not even trying to call the Spanish Judge, or Bruguière to come and testify before the Judges of the ICTR. This is something that borders on abuse of Rule 89(C). I do not even want to call it an adversarial system. I think it is simply something where the crafting of Rule 89(C) does not look as closely at the processes that an Investigating Judge of the continental legal system does and the admissibility of evidence under the common law system. So that gap has been created, and that gap is what we need to address, rather than whether we have too much or too little of the adversarial system. I think that the adversarial system helps, in a sense. With serious cases like genocide, you really need to cross-examine the witnesses closely, to find out what was happening. I do not think that cross-examination of the defence witnesses is anything that we should limit. I think we should push the limit as far as possible so we actually get to know what took place. The other area where I find it uncomfortable is where the Courts begin to focus on the time of a particular act. That bothers me because the victims in Rwanda were struggling to survive in 1994, running from place to place. Many of them do not have watches. Many of them did not eat for days. And in court the witnesses are being asked what time something happened? The witness simply cannot remember. They did not even think about it. They were thinking about survival. As a result, I think we should focus more on the pattern and sequence of events, actions, responses and demeanour of the witnesses, rather than on the specificity of time when a particular act was committed. These mass crimes are extremely complicated, and also different from what takes place in the national system. In national legal systems where there is one rape (however grave it is) maybe once in six months, where everybody knows about it and talks about it, one can control the time factor.

Q.        Looking at the soft evidentiary standards (Rule 89(C)), that is an element of civil law procedure integrated into the adversarial setting of the Tribunal. Would you agree that there are serious reasons to be critical of the hybridization of procedures?

A.        I have generally liked improvement of the law. As time changes and new circumstances arise, we need to let the law keep pace with development. But we need to be very careful. When we make those changes, and then we have lawyers who understand interpretation of statutes differently, I think part of our problem is how people from different schools of thought feel and understand the rule for interpreting statutes, whether we are talking about interpreting rules, what the rule means and the scope of the rule. We have spent a lot of time before the Trial Chambers, discussing different aspects of the rules. Not because the rules themselves are difficult, but because those who discuss it come from different schools of thought and understand rules of interpretation differently. This is also true for the Judges – if you have three Judges, one from Turkey, one from France, and one from Australia. Then you have defence counsel and prosecuting counsel seeing things differently. We have this problem of agreeing on things. I do not think we have an easy way of solving this problem, other than having an introduction course for everybody. Otherwise, as decisions come, as we go to appeal, we argue these cases, things begin to crystallize. I think there has been great improvement in that context. On a personal level, I have found some of the dissenting opinions from the Appeals Chamber Judges extremely helpful, because they try to address these issues and articulate minority views. You may find it strange, but each time I get a judgement, I start reading the dissenting opinion first, before I go to the main body, because the dissenting opinion will have crystallized the major disagreements or issues. They look at it, and they are helpful in that context.

 

4.         Do you think that the Appeals Chamber and Trial Chambers have used their competence to issue separate or dissenting opinions excessively or insufficiently?

A.        Not necessarily. Is it not possible that the Courts are being overwhelmed by the work that we do and as a result they tend to disagree both on the facts and the law? Indeed, the Prosecution and the Defence, like the Judges, deal with massive evidence of conflicting even contradictory facts and see the statements from their individual perspectives. Disagreement or dissenting opinions become almost the norm under these circumstances.  Besides the facts and the law, there is room for mental fatigue because the subject matter of what we deal with. Sometimes I wonder why we do not have a lot of psychiatrists here to treat people. It brings a lot of trauma. Everyday you are reading very bad things. Then when you go to Court, you have got the witnesses – people who were there. You can see the body language of witnesses when they confront accused persons in the court rooms. All these things generate a separate level of tension for witnesses, accused persons, counsels and the Judges. And, in all these situations, the Judges are managing these factual surroundings; they are also managing the law and the legal process. I think it is a heavy workload and exceptional burden. I do not know whether we have uniformly appreciated the importance on the dissenting opinions. Those dissenting opinions reflect our ability to seek to understand the depth and scope of the atrocity that happened and now being reviewed in a comfortable court house. It’s hard to go back in time and watch those atrocities.  I try to encourage my staff here to look very critically at dissenting opinions, because in most of the cases, because we have huge crimes in Rwanda, many of the cases, if one can call it winning, it has been in our favour. So when we have the Appeals Chamber confirming a conviction of someone and giving a life sentence, and another Judge is dissenting, we have got to look at that very carefully.

5.         Would you describe the role of the Prosecutor here as that of a partisan actor, solely seeking a conviction, or rather an independent impartial organ of international criminal justice, under an obligation to search for exonerating and inculpatory evidence, with an objective truth-finding mandate?

A.        Based on public perception, I think the role of the Prosecutor, notwithstanding the provisions of the ICTR Statute, is in the eyes of the beholder. To some, we are bias, to others we are just UN civil servants going through the motions. The perception of the Prosecution is not so much with what we do, but with the expectation of others. The victims in Rwanda expect us, the Prosecution, to be on their side, and to pursue a conviction at any price. On the other hand, we have also seen defence counsels who have developed some form of relationship with accused persons, and they have become fairly emotional about it, and they also take that side. My personal view is that, as Prosecution, we should not go for conviction at all costs. I think that it is our duty to provide exculpatory materials to the Defence whenever we find them. As Rule 68 says, that is an ongoing obligation of the Prosecutor. I am also uncomfortable with the idea of truth-finding. We are not a truth commission. What I see is that, in an indictment, I have a specific count, and a specific allegation. I should confine myself to the serious allegation I am making against that individual. I should find sufficient evidence to prove that this person is guilty. Other evidence that may not be relevant but very important to provide to the defence and the Judges is factual background. Generally providing a background to the conflict in Rwanda is helpful to all parties. However, in the body of the Indictment, if given information is not relevant to this particular count, I should be able to leave it out. Let the historians write about the genocide. I believe that a Prosecutor should not take the role of trying to rewrite the history of any given conflict. The Judges have looked at the facts, reviewed the evidence, and the evidence suggests that this person has committed a crime on a particular date. I collect evidence for this narrow purpose, and confine myself there. There are others who would disagree with me. There are others who feel that it is important to get the history of Rwanda straight. I think we are going beyond our mandate to try and write the history of Rwanda. Our concern is merely to prove whether the allegations we have made against a specific individual are right or wrong.  To answer your question; the Prosecutor is neutral and independent.

Q.        Are the investigative or prosecutorial activities by the OTP aimed at seeking exculpatory evidence, specifically? Of course there is an ongoing obligation to disclose exculpatory evidence, but from the outset, is there an aspiration to look for exculpatory evidence?

A.        It is my understanding that we have always done that, even if not directly. From the beginning, the nature of the investigation was that a lot of people were arrested, and then the investigation began. They took the leadership. So at the initial stage, the investigators collected whatever information was available. Then, in house, it was analyzed. At the same time, soon after October 1994, a lot of NGOs went into Rwanda and interviewed a lot of people, not necessarily with a view to prosecution. Human Rights Watch, African Rights and others collected a lot of information. Some of this information was inaccurate, some was accurate, some was exculpatory and some was not. The duty of the Prosecution was to look at all of those materials, and find out which of these are exculpatory and disclose them. So, from the process of drafting the indictment, the Prosecution has at their disposal the statements of different witnesses, and you know which witnesses are contradicting one another. You form an opinion as to whether a particular set of facts is true or false. Under those circumstances you really have to disclose. But should the Prosecutor specifically go and look for exculpatory materials? I do not recall any policy like that. In the course of our work, as you work on a particular file and you get exculpatory material, you disclose.

6.         It is frequently said that the OTP represents the victims by investigating and prosecuting. To what extent would you agree that there is such a role?

A.        I think that when you look at the Statute and the Rules more closely, that really is a misnomer.  The Prosecutor represents society, let’s say humanity. On the other hand, the idea of victims, in a legal sense, is complex. You see, even in Rwanda today, it is difficult to say who is a victim. When you look at our Statute and the Rules, there are no express definitions of victims, or procedures for their participation in any trial before the court. They are therefore excluded except when they testify as witnesses. Even if the Prosecutor wanted to protect the interests of victims, where is the legal basis? What is the modality? What has happened is that the ICTR, through the Registry, has arranged certain support for victims and witnesses. Within the OTP, we can only provide support to victims who also happen to be witnesses, if they are also listed as witnesses. We have had a long argument with the Registry whether the OTP witnesses on the provisional list can be considered witnesses for the purpose of providing support or to look out for their interests. The Registry has taken the view that only witnesses that are listed to testify at trial are witnesses or victims within the Rules. How is the Prosecutor expected to protect the interests of victims outside the Statute and the Rules?  This is problematic The Prosecutor may wish to do something, but basically, within the law itself, his hands are tied. Even when the victims are called to testify as witnesses, they are not given a free hand to tell their entire story or paid a fee for their testimony. They are limited by the Rules of Procedure and Evidence as applied before the Court. The ICTR Statute, the Rules, and the practice, has generally excluded the victims. The Statutes and the Rules do not provide for victims. If the Prosecutor is to spend some money on victims who are not listed as witnesses, or to protect their interests, where would the money come from in the absence of a budget line for that purpose? The Prosecutor cannot account for the money that he does not legally have, and there is no money to spend on the witnesses because there is no funding for it. If the Prosecutor were to raise money from any source to pay victims, in any event, the Prosecutor may be accused of trying to influence or bribe the witness if money not budgeted for and approved is paid to a witness whether or not the witness is also a victim. And the special fund that the Registry uses is the minimum used to protect the witnesses. In short, I think that the victims and the witnesses are helpful to the Prosecutor to the extent that they come and testify. Beyond that, I do not know what else the Prosecutor can do to protect them. I know that there are a lot of people who wish that something more can be done. When the Prosecution is preparing his case, he is more focused on whether there is sufficient evidence to sustain a conviction, to support the indictment, rather than whether the particular witness coming to testify will later be looked after. However, protection of interests of victims and witnesses is important and is an omission in the ICTR Statute that needs to be addressed.

Q.        So would you approve of the model of the ICC?

A.        Absolutely. My personal view is that the ICC provision is good, but it has not gone far enough. It allows witnesses and victims to have representation through their lawyers, but it does not clearly indicate how these victims can identify their problems, whether these individuals, without going through these groups, can proceed. When you go through a group, there is a tendency to get the common denominator. As a result, you compromise a lot of interests. So, if an individual was to go alone, and that individual does not have the resources, maybe that individual should be allowed legal representation either pro bono or paid for by the Registry. The level of victim-ness also differs. To put all victims as if they have the same problem and that therefore, under the ICC, they have one big legal representation, as they are for the group in northern Uganda – this group of NGOs tries to talk to this group of victims, they are being told that they are victims in a certain context. I would rather let the victim start by telling why he or she is a victim. Rather than letting the ICC come up with a definition of who is a victim and who should be heard. Let the legal process determines who qualifies as a victim on an individual basis and not as a collective.  On the principle side, I would support the ICC approach. I would look forward to seeing it being developed to be more responsive to the majority of victims.

7.         Is there formal interaction between victims’ organizations in Rwanda and the OTP? Does that happen on a regular basis? What form does it take?

A.        Yes, there are low and informal levels of connection between the victims’ organisations and the OTP. However, it is the Registry that, I believe, has formal contacts with victims’ organisations. As an office, the OTP has no policy on contacts with victims’ organisation, if there is, I have not seen it. Therefore it is a difficult one for me to explain, but at a personal level, I think that the victims’ organizations that we have in Rwanda should be taken more seriously, although some of their members make some highly inflammatory statements. I think that this idea of these organizations for victims is important enough to be taken seriously. This is a new phenomenon. We have not had this type of organizations which are intended to look after the interest of the victims. Also, there is a need for this to be separated from the government, so that we can see that there is no manipulation by the state. Dealing with victims, as the OTP, is problematic in the sense that they expect you to be on their side. When you are talking with victims and trying to verify the veracity of their statement, some would think that you do not believe them. There are some members of victims’ organizations who actively go out to coach witnesses. So you get what we call professional witnesses, who can go out and testify in every other case. That makes relations between the OTP and these groups difficult. You must not antagonize them, you must appreciate what they are doing, but at the same time you must distance yourself and retain the independence of the Prosecution. The Prosecutor is not to be influenced by any individual, organization, or state. If we work closely with this group, to the extent where they will begin to influence decisions, to me it is not advisable. It is necessary that we work closely with them, but we should be aware and alive to the dangers of being seen as one. They have a completely different motive for trying to develop this relationship and the OTP has a different approach to further prosecution.

8.         Would you please comment on the ‘laughing incident’ that occurred during a witness’ testimony some time ago, when the witness was giving testimony on a sexual crime charge and a number of Judges laughed at this witness? What happened? Why?

A.        That was a very unfortunate incident that has taken on a life of its own. I know the incident. The defence counsel was, as accepted by most lawyers from both the defence and prosecution sides, incompetent. He was asking questions that were basically incriminating his client. The Judges tried to discourage him from pursuing that line of questioning. Apparently he was not following, and he did not understand the clue from the Judges. Later on the Judges laughed, but they were laughing at the defence counsel, not at the witness. Not that that is okay, because in a serious matter like that, nobody should have laughed for any reason. But it has been presented as if the laughter was directed at the witness, but in this particular instance, the laughter was directed at the defence counsel, not at the witness. But that has now taken on a life of its own, and it is difficult to explain, the fact that the Judges were not laughing at the witness. Even if they were not laughing at the witness, the factual conditions within the courtroom were not conducive to laughter. I would blame them for a different thing, for a poor sense of judgement, rather than laughing at the witness. They did not laugh at the witness. But perhaps you could try and interview the actual Judges. I think two are still alive, although one died. I think one has now gone back to his country. I think they could provide the particulars. I think it is an unfortunate expression that arose. It is clear from those who were in Court; I followed the proceedings from my TV screen, and concluded that the Judges were not laughing at the witness.

Pre-Trial Stage

9.         What, in your opinion, are the main obstacles for the OTP in conducting investigations, given the procedural framework of the Tribunal?

A.        The problem in investigations is historical. When the ICTR was established, the Judges were appointed first. Then the staffs of the Registry were appointed, and of course the Prosecutor was already there in the sense that the ICTY prosecutor became also the Prosecutor for the ICTR, but the staffs for the Prosecution, including the investigators, were not there. So the work of the OTP started with a slow process, and a top-down approach. The Judges and the Courts were ready but there were no investigators and therefore no cases to present to the Judges. The second part is that, because of the political situation in Rwanda at the time, the Rwandan government had asked the Human Rights Commission to close their office in Rwanda. The bulk of the staff of the Human Rights Commission who were in Rwanda, were redeployed into the ICTR, some of whom had no investigative skills, while others were not lawyers or had not practiced law at all. Then, a number of the UNAMIR force staff in Rwanda was also employed in the OTP, when UNAMIR was being phased out. In other words, at the beginning, the OTP had individuals with very little or no knowledge in conducting investigation. That was the beginning of the problem. The second phase of the problem was that when proper investigators were being recruited from national jurisdictions, many of them were not conversant with the law of war, genocide or crimes against humanity. Many of the investigators recruited did not know the elements of the crimes under the ICTR Statute and no induction course was conducted to prepare them for investigations. So the investigators simply went to the field, interviewed whoever they chose to, and collected whatever information they could collect, without linking the facts to the elements of the crimes being investigated. And then you have the third tier of the investigators that we had, who were given some brief training before they started investigating. By that time, the early investigators had collected huge documents, some of which were completely useless. To me, I trace the difficulties of the investigation from that era.

Later on, the situation vastly improved when some lawyers were included with the investigators. When investigators went into the field, they would go with a legal advisor. That person would be able to interject and stop a line of questioning, telling them where to focus. Later on, of course, there were guidelines that were provided, telling investigators how to focus their investigation. Gradually, it has improved. As in all cases, the initial mistakes that were made come back to haunt people. You get statements that were collected in 1995, popping up either as exculpatory materials or with additional evidence, or new materials, that we continue recycling. We are going to continue having a problem as a result of that initial period that the ICTR faced organizing the investigators.

Q.        Related to that, were there any problems with the Prosecutor being based in The Hague and the distance between Kigali and Arusha?

A.        That was a huge problem. There was a period when the Prosecutor was in The Hague, and there was no Deputy Prosecutor here. There was no Chief of Prosecutions here, and the Chief of Investigations, who was not a lawyer, was dealing directly with the Prosecutor, handling both investigative work and legal work. I think that was a very low point for the Tribunal. The distance between Kigali and Arusha, although there is an office in Kigali, also gave the perception that maybe the investigation was not being taken seriously. To many Rwandans and other human rights organisations and activists, the argument was that if investigating genocide was being taken seriously, why were the Prosecutor and all the senior staff not in Rwanda? The working conditions in Rwanda were very difficult. Quite a lot of people wanted to leave the investigation and come over here to Arusha, where it was relatively better. Soon after the war in Rwanda, the situation was extremely bad. Administrative actions that were taken in Kigali had to be approved by Arusha, for example when the staffs were going out into the field; it was the RPF soldiers responsible for their security. Sometimes a request from Kigali to Arusha for investigators to go to the field had to wait two or three days before the approval was granted and investigators could go to the field. Then when you make an appointment with the witnesses, they do not have a diary or a clock, so you make an appointment for a particular day, it could be morning, afternoon, or it could be evening. The road was poor, so there were practical difficulties there. With RPF soldiers present within hearing distance, some witnesses were not keen to talk to investigators or freely suggest names of other witnesses who could be interviewed.

10.       The investigative powers of the Prosecutor under Article 17 and Rule 39 are formulated in a broad manner, for example the power to collect evidence. Do you consider that the powers of the Prosecutor are effective and sufficient?

A.        The Prosecutor has sufficient power. If the powers are used positively and creatively, I do not see any problem with that. The only problem is, whenever a Prosecutor is conducting an investigation, he needs the cooperation of the state. He needs to liaise with the local policemen and investigators, so if the relationship between the Prosecutor and the ICTR and that state is poor, it impacts on the investigation on the ground. Sometimes the OTP faces the problem as to how much information they should give to local police investigators, because you do not know how they will use that information, whether it would allow the accused person to influence witnesses. You have got to balance this. I think that is part of the difficulty the Prosecution has. Not so much in the law itself, but in the practical relationship between the Prosecutor and other sovereign states – how they can assist or liaise with the Prosecutor.

Q.        Do you agree that this broad formulation of powers is necessary then, given the need to rely on state cooperation?

A.        I think it is necessary at two levels. One is to give the Prosecutor a broader prospect of getting reasonable access with member states. The second aspect is that international crimes demand a different level of investigation compared with ordinary armed robbery. So what we are dealing with are genocide, war crimes, and crimes against humanity, where you have participation at the highest level of the state, for example like in Rwanda and you might wish to get copies of the cabinet minutes, for example I think the Prosecutor needs certain powers to make sure that some of this information can be easily obtained. In that context, or because of the complex nature of the investigation, the interstate relationships and the fact that the ICTR is not a state, we underpin all our authority on the Security Council Resolutions.

Q.        From the point of view of the rights of the accused person or third persons, might there not be a need for a more detailed regulation of investigative powers, as is the case mostly at the national level, where you have clearly defined investigative powers at the disposal of the Prosecutor?

A.        I would rather confine myself to the factual situation in Rwanda as I understand it. I think that from the stage when the accused is arrested, the rights of the accused should be closely respected. But the initial investigation, which leads the Prosecutor to form an opinion whether or not to draft an indictment, should remain unfettered. I think you have stages that you go through, first, a general investigation, where you zero down on suspect ‘x’. Having reviewed the evidence and having formed an opinion that the suspect should be arrested, from the moment of the arrest, the accused should be advised of his rights and should enjoy those rights throughout the entire process. I do not think the Prosecutor’s authority should be limited prior to that stage. I would rather separate the process.

11.       When the prosecutor relies on coercive measures, they need to be conducted at the national level, as the Prosecutor cannot conduct these measures himself. A search and seizure operation in an apartment in Kigali, for example, must be carried out by national authorities. In your opinion, prior to going to the national authorities in order to have the coercive measures carried out, should the Prosecutor turn to a Judge at this Tribunal to get judicial authorization for coercive measures?

A.        Instead of using the Rwandan example, let us use the Kenyan example because the government there, with or without authorization from the court, would normally cooperate. In principle, I agree we should have judicial authorization. My problem is the practicality of it. Take the Kabuga case for example. When the Prosecution makes a public application in Court for authorization for a warrant of arrest of the suspect, the information often leaks out. When we meet the Kenyan authority, our investigators believe that the same individuals that we are talking to are the same individuals that are going to advise Kabuga to run away. How do we address these issues without in any way undermining the legal process? I personally believe the problems should be handled on a case-by-case-basis, with sometimes, the exercise of exceptional rule. As a general rule, the Prosecutor should get authorization from the pre-trial chamber. But where there are serious concerns, the Prosecutor should be able to file a motion confidentially, under seal, to the Judge, explaining why he would like to proceed. That would allow the Judges to supervise the work of the Prosecutor, to protect the integrity of the process, and to protect the suspect. But, it should not always be an application in open court. Where the Prosecutor has no worry about any difficulties and where the Prosecution is satisfied that the suspect is living in Canada and the Canadian government is going to cooperate anyway, then they can go public. On the other hand, if the suspect is in country ‘x’, for example Cameroon and you suspect that the Cameroon authorities may influence the process, and then the Prosecutor should be allowed to file the motion confidentially so that the information does not leak out. Either way, I think the participation of the judiciary is important.

12.       Some defence counsel argue that states do not feel compelled to cooperate with defence counsel in the same way that they feel compelled to cooperate with the Office of the Prosecutor. Would you agree with that statement?

A.        Yes, to a certain degree. However, I think there is a flaw in that comparison. Let us take the national system. Whether it is a civil court or a criminal court, the Defence will always talk to witnesses, and witnesses have a variety of reasons why they do not want to go to Court at all. Many of the defence witnesses do not want their role, or their participation, to be the subject of discussion. When the Defence is calling a witness, we, as the Prosecution, are entitled to investigate the backgrounds of particular witnesses. And when you go deep into the background, knowing that there was in Rwanda what we call mass criminality, every person somehow participated in it, and you are going to find something. So the defence witnesses, most of the time, do not want to participate in the proceedings because they want to protect their background, and not because the state or the country they reside do not wish to cooperate with the defence counsel. Not because of anything else that the defence counsel might have said or done. That is why even when some of the defence witnesses are being subpoenaed to come, they would rather go underground than come. On the other hand, the prosecution witnesses, most of who are either victims or consider themselves victims, are keen to come and participate. So getting an order from the Court to force individuals to come as defence witnesses would be problematic, as I see it. It is not that the Defence is being denied their rights, but the context of the crime in Rwanda makes it very difficult for anybody, even some defence lawyers. For moral or principled reasons, they refuse to come as a defence counsel. They say, “My client may be innocent, but I really don’t like what took place there, and I don’t want to get mixed up in it.” – This is a paraphrase of what some Rwandan lawyers have told me. There are a variety of reasons, but we are trying to focus on the legal aspect of it, as if that is the core problem. I think the legal issue is not the problem. I think the perception of witnesses and the attitude of people and the press itself has given it a role where one has to think twice before being willing to be a witness for Milosevic, if he was still alive. People would think twice to come and be his witness. And we have the same thing here. People will think twice before they will come here and be a witness for Bagosora for example. I think that really is the crux of the matter. I could be wrong.

Q.        But in terms of cooperation of states, not just willingness of witnesses…

A.        I am sorry I did not address that part, because I linked witnesses with the state. If I am living in Canada, and I tell the Canadian authorities that I do not want to go to Arusha and testify, are you suggesting that they should arrest me and bring me here? The Canadian authority will respect my rights whenever I exercise it within the law. I do not think a reluctant defence witness would be forced by Canadian authority to testify against his wishes. The state can only provide assistance when the witnesses are willing, ready, and able. Forcing the state is a different matter.  In the Netherlands, for example, suppose that there is a law which provides that people with criminal records should not be admitted in the Netherlands, or génocidaires should not be admitted in the Netherlands. It is my view that it is up to the authorities in the Netherlands to waiver that provision and permits a person convicted of Genocide to enter the country whether as a witness, a tourist or a person seeking residence status.  Then there is the question of persons who were acquitted of genocide or crimes against humanity. What should a state do?  The evidence shows he is a very bad individual, but he may have been acquitted based on a legal technicality. On the facts, you know that he was acquitted because the allegations were defective. The experts know that he actually did it, but there was not a proper indictment. While legally he is innocent, at a practical level, the immigration officer sitting in the Netherlands will not want the individual there. If he comes, where will he be placed? Who will accept this person as his neighbour? Should we get an order from the Tribunal saying that you must accept him? How do we deal with state sovereignty? The state has a right to formulate its own immigration rules, as long as those rules do not conflict with international law. And Dutch immigration law will not be in breach by providing that genocide suspects, including those tried and acquitted will not be allowed to enter Holland. How would we, for example, force the state to cooperate to receive a person who has been acquitted? And when the lawyers for the state have analyzed the judgement, they say that they know the man was acquitted, but he is a bad guy. What should we do? Should we impose cooperation on the state? I think the matter lies with the UN Security Council by amending the ICTR Statute to address this particular mischief.

Q.        No, but the national Judge is empowered to compel the appearance of a witness.  Why may not the Tribunal order the state, since the powers of the Tribunal are based on Chapter 7 of the UN Charter? It seems to us that there is a possibility to subpoena the witness.

A.        At the level of abstract reasoning, I would agree with you. But put you in the place of a Court; a court with no enforcement mechanism; a court that relies on the support or lack of it, of member states of the United Nations.  Would a Court issue an order that would, in effect, ridicule itself? If a Court was to issue an order to the United States to deliver a witness by a certain date, and they do not do it, are you going to make another order or pass the issue to the Security Council? There, at the Security Council, the Court’s order may be vetoed or ignored and therefore not enforceable. What does a diligent and responsible Court do about a Prosecutor’s request directed at a non-cooperating State with veto, or friends with veto rights in the Security Council? I think, to preserve the integrity of the Tribunal, we should also try to do those things that are permissible. From the very beginning, we should recognize the limitations of this Tribunal. I think we should also recognize that this ad hoc Tribunal, created for a limited purpose with limited rights and limited mandate, cannot do everything that a national court can do. Over and above that, there are multi-layered relationships with a number of states. If we look at this thing in isolation, we might say that this is not sufficient. On the other hand, if we look at the big picture, you may discover that pushing certain issues too hard and too far may be counterproductive. If a witness does not want to come at all, and you charge him with contempt, he serves his days, he gets out, and you bring him again, what are you going to get out of this?

13.       How far, in your opinion, can a Judge go, based on the material evidence before the Court, to suggest to the Prosecutor that other charges be brought against the accused?

A.        My personal view is that the Prosecutor should be deemed to know his case. The Judge is not acting for the Prosecution or for the Defence. If the Prosecutor files a useless or a silly indictment, that could go to trial and the accused would be acquitted. I do not like the idea of judges trying to prop up the Prosecution’s case. If the Prosecutor, who is supposed to have all the facts of his own case and decides what is important about it, presents an indictment and the Judge sees that the indictment is defective, he will be told to amend it. I think that is problematic for me because, if and when the Judge confirms the indictment, you go to trial and a separate Trial Chamber may find the indictment defective. If we want the Trial Judge to get a proper indictment, once the indictment is confirmed and we know that the indictment is not defective, so all the arguments about defect are out, because it has been confirmed by the Judge. Then we go on to see whether the evidence supports the cause of indictment. If it does, convict. If it does not, acquit. Sometimes it seems as if the Judges comment on the indictment, asking the Prosecutor to amend it, maybe that goes against the interest of the accused. If we get a very weak indictment, and the Judge says, “You know, on these things we really cannot convict. Please go and make it a little bit tougher, so that we are able to convict.” I am uncomfortable with that. I know a lot of people would disagree with my point of view and state that it is fine.  A similar incident happened in Akayesu where based on the evidence, Judge Pillay directed the Prosecutor to amend the charge and include sexual violence. Eventually the accused was convicted of rape as a crime against humanity – the first time ever. The result was good for the prosecution and the general public. However, if one views the legal process from the point of view of the accused, indeed any accused, at a stage when the indictment did not charge a particular account and the defence counsel did not address his mind to defending that particular charge, it would appear as if the prosecutor is trying to work together with the Judge to make sure there is a solid indictment. It looks, or has the appearance of cooperation between the Judge and the Prosecution to make sure that there is a water-tight indictment. I am uncomfortable with that.

14.       The ICTY amended its rules following the completion strategy. One amendment is Rule 73 bis (E), allowing the number of charges to be reduced, and there is a rule requiring a look at the indictment by the Bureau to see whether it is focused on the persons bearing the greatest responsibility (Rule 28 (A)). Would you consider these amendments problematic from the point of view of prosecutorial discretion?

Q.        Yes, I think so, because we are getting a completion strategy that undermines the entire legal process. When the Prosecutor is drafting charges, there are certain underlying decisions that he would like to make. I can, for example, want to make several counts in a particular indictment, because I want the entire record to reflect how bad this particular accused is, and the role he has played, and there may not be as many grounds as I want. I may also want to focus on certain crimes that have generally been neglected in other indictments. This may be the only accused that has all of the elements of this particular crime. Like in the OTP here, we have generally not charged pillage. If we want to show that in the course of fighting in Rwanda, pillage also took place, and in all the other cases we did not charge it, we should be free to include that. At the same time, I cannot drop out genocide, because we had a series of convictions on genocide, when we know that we have enough evidence to convict this accused for genocide. The Judges do not clearly know the criteria the Prosecutor uses in getting many of these counts. What the Judges do is to reduce the count, because of completion strategy. Not because the Prosecutor is trying to capture the different levels of criminality that took place at the crime scene. So I am a bit uncomfortable with that.

15.       Perhaps a related question is that of the plea-bargaining practice. What are the usual channels for the parties to communicate to the Judge their preliminary agreement, and how does that usually proceed?

A.        You are asking the wrong person because I am a strong critic of plea bargaining in the OTP here. I think part of the difficulty is that we have revised facts, or minimized the gravity of the conduct of the accused to allow the accused to plead guilty. So that reducing the extent of the criminality of the accused – that part I do not like. Secondly, there are certain counts that the accused would never plead guilty to, like rape, for example. Even if there is strong evidence of rape, if you want the accused to plead guilty, you have to drop that count, and pick something else. Something else I do not like very much. And then, there are certain pleadings, in the cases of Rugambarara and Rutaganira, I think that they are very distressful, in that they barely pass the principle of legality. When you are going to ask the accused to plead guilty to complicity by omission, then you begin to figure out what crime we are talking about. That worries me. So we have had the participation of the Judges in the guilty plea. It is okay in the context of the completion strategy, but in the ideal situation, it should be between the Prosecution and the accused. Whatever they agree on, they should then take it to the Judge, and the Judge can either accept it or throw it out. But they should not be allowed to informally, whether through status conferences or other ways, be consulted and become part of the negotiating process. That looks like negotiating justice. “We know you are a very bad guy, but because you are going to do this, we can give you this little one. I think we can live with that.” It is no longer a question of whether it is just or not. In some countries, they do not accept plea bargaining. You have to go through the process. I think that is a good idea. Here, you get some really bad people. The system comes from the United States, where you have organized crime, but here you have for example a guy who killed several hundred people. I think that is an abuse of the legal process. Maybe I am going too far but I am uncomfortable with it. It is not my style.

Q.        Your opinion does not coincide with that of your colleagues?

A.        There are some people who agree with me, but this is not the official position. There are quite a number of people, in appeals for example, who have very strong views about plea bargaining. At this point, we should prosecute them instead of allowing a plea bargain. You do not ordinarily underplay the gravity of the crimes committed. To me, they unduly benefit from the very extreme of criminality that they participated in.

Q.        Can the role of Judge be confined to giving an opinion about the sentence? In practice, they usually agree on facts, then on the applicable sentence. Is it not appropriate for the Judge to say: “this sentence is not possible, come up with something else?”

A.        What the Judges have done here, the Prosecution and Defence recommend a range of sentences. In one instance, the Judge rejected the range, and imposed a higher sentence. I think the Prosecutor had agreed, in one case, to 8-12 years, and the judge imposed 15 years. I think they should enjoy that discretion. What I do not like is at the early stage, to engage the Judge in it. They could for example talk with the Associate Legal Officers that work for the Judges, asking them if it seems reasonable. Even then, that is going a little bit too far. You should try and protect the integrity of the Judges, keeping them separate from this process. The moment they become part of the negotiation, we do not know how far it will go.

Trial Phase

16.       Which factors play a role in determining that opening statements and closing arguments will not be made? Under the rules it seems possible for the Prosecutor to waive this right.

A.        Our practice here is that we have taken advantage of the opening statement to spell out the theory of the prosecution’s case. This may sometimes not be entirely clear in the pre-trial brief, which is a huge document. In a few words, you should be able to tell the Judges that this is the view of the prosecution case, and this is how we propose to lead evidence to prove it. We are also concerned that this is not evidence. One or two decisions of the Chambers have indicated that the opening statement may be used to cure a defective indictment that would be notice. I do not agree with that, but that is what I think some decisions have stated. When the Prosecutor said ‘A, B, C, D, E,’ if there was a gap in the indictment, that would be notice to the accused. In that context, the opening statement has been used in every case to spell out our theory of the case.

17.       A bit earlier we were speaking about the OTP’s role in protecting the interests of victims. It seems that there is at least one avenue where the Prosecutor could contribute to the fulfilment of these expectations. Under Rule 105(A), there is an opportunity for the Prosecutor to ask for a hearing as to the restitution of property and proceeds of the crime in favour of the victims. To our knowledge, this has not been a very frequent practice, although the procedural model allows for it. Why has not this avenue been taken?

A.        While this has not been debated, discussed, and agreed on within the OTP as a policy, my personal understanding is that it was based on the history of Rwanda. In Rwanda, there are basically two types of property: land and animals. After every crisis in Rwanda since 1959s, the ownership of property changes, as the new rules take over the property of the defeated. The last war in 1994 was probably the most fundamental in the sense that there were many Rwandans who were exiled and born outside of Rwanda – those who formed the bulk of the RPF. When they came and took over the country, they actually took over those properties – just appropriated them. And some of those properties are now government properties. Like the Amahoro Hotel which is used as the ICTR office in Kigali. It belonged to one of the accused, Nzirorera. It is now government property. While on paper they may have some properties, in practice they no longer have them. The government has already confiscated them, or those who have lived in exile have come, have now taken over, and the government has recognized them as the new owners. So going through this process is really meaningless, because there is no property to take.  Unless the property is outside the territory of the Republic of Rwanda, then the ICTR may have a small window of opportunity to, through court orders, seize the property.

Q.        Were there many orders made for freezing the assets of the accused?

 

A.        We have done that. Kabuga’s assets have been frozen, in Belgium and France, and recently in Kenya, where I think his house was also frozen. But, it has not been in the context of compensating the victims. I do not know whether the process will reach that far. It has been difficult to ascertain many of these people with assets outside of Rwanda, with the exception of Kabuga. Before the Prosecution can seek Court through Rule 105(A), the Prosecutor must have clear evidence of those properties, and the ownerships and where the properties are situated. This information is not really available. I do not think that the office has conducted an intensive investigation on the matter.  However, anything property inside the territory of Rwanda, it is believed, has already been taken by the Rwandan government.

Q.        What will happen in Kenya or other countries with the frozen assets at the end of the process?

A.        I cannot give you a clear idea now.  The process is still under discussion within the OTP.

Q.        Would the victims be able to benefit, somehow?

A.        The possibility is there. In Rwanda, the government has set up a victims’ fund. So the proceeds of those properties could probably be transferred to that fund. That option is there.

18.       We were wondering whether the OTP applies any special examination or interrogation techniques during examination-in-chief, cross-examination and re-examination at trial to reduce the trauma to the victims, and to prevent secondary victimization. How does the OTP in Court deal with this special category of witnesses?

A.        We have had one case in particular, the Muhimana case, where the accused personally raped a number of women. Not like other accused that were responsible because they were superiors. This was a direct participant. Two of the victims came to testify, and our prosecuting counsel requested the Court to allow a counsellor to sit with the victim who was a witness in the courtroom. She had counselling before, even during the session the counsellor was there, and the Court had to adjourn sometimes to give her time for counselling. This was an extreme case. In Kigali we have four counsellors who regularly visit their homes and check on them. This is a process that is being managed by the Registry, including the staffs of the OTP in Kigali. But the funding is very limited. The Tribunal is closing down. This is a very difficult process. It is not only difficult for witnesses. It is also difficult for our women attorneys who interview them. It is not uncommon for them to cry together. It is difficult.

Q.        If the OTP needs a witness to pronounce something concerning that criminal incident in detail, but the witness understandably seems to be reluctant to speak, what does the OTP do?

A.        Many of these proceeding have been conducted in closed session. In closed sessions, after the break the counsellors talk to the witnesses, then the Court goes into closed session, where there are only defence counsels, the accused, the Prosecution, and the Judges. The crowd is not there, and quite often the witnesses talk freely. Some of the witnesses have surprised to Court with their frankness or demeanour. One of the victims refused when she was told that we would go to closed session, saying that she wanted the world to hear her story. She testified publicly. She also refused a pseudonym. These are exceptions. I want to underscore the fact that this is a very difficult area for the Tribunal to handle. I do not think a clear policy has emerged. Sometimes different prosecution trial teams have done it differently.

Q.        Do the OTP members get any training in conducting examination-in-chief of victim witnesses?

A.        Yes, we do have regular training here. There is a team coming here once a year, conducting training for prosecuting counsels to handle these issues, and also in relation to other issues training has taken place.

19.       How does the practice of witness proofing usually proceed and what is your attitude to this practice?

A.        In my jurisdiction, you do not even talk to the witness. The policemen talk to the witnesses, and you see the witness for the first time in the courtroom. Witness proofing happens, because of this tradition in Rwanda. However, you should draw a line between witness proofing and coaching. I think, in some instances, some individuals probably tipped the scale. In one or two instances this has also caused some embarrassment. This was before I joined the Tribunal. I heard this story about one witness who, when cross-examined, said, “this is what the lawyer told me to say.” I was not here, so I don’t really know what happened.  I have not had the benefit of reading the transcript. If it reaches that level, it can be really bad. Because the witnesses in Rwanda have actually been traumatized, many of them have not even appeared in any court at all. Some of them have not even seen so many lawyers with strange dresses in one place. Some of them are on a plane for the first time to come here. They are in a completely different world, and they need reassurance. They need to be told: “When you go to Court, you just go ahead and tell your story.” Sometimes you need to bring them into the courtroom to show them where they will be sitting. They will be told where the defence counsel will be sitting, and that if they need any help, someone will provide them with assistance. You can wear these earphones to hear the translator. These technical things, you must explain, and in that context, witness proofing is very helpful. You are going to explain the practical conditions that they must understand. “Don’t mind anyone else, just focus on the Judges, talk to the three Judges; do not focus on anyone else.” If you put it at that level, it is okay. When you go and tell them “you better say it like this, because another witness has said this, and we don’t like this contradiction.” I think that is no longer witness proofing.

Q.        Do you think that this function might be better implemented by the Registry, a neutral organ?

A.        I do not think so. The Registry is not going to lead the witnesses in Court. You have to develop a rapport with the witnesses. What we know in the Tribunal is that concerning a number of raped witnesses it sometimes took our female lawyers 10-15 times to talk with them before the witnesses told them they were raped. Sometimes the rape victims talk about other people, and they give certain details, and it is only then that you discover that they are describing what happened to them. I do not think the Registry should have to do that. I do not think the Registry should be in a position where they control all the prosecution witnesses and the defence witnesses, and put them together. The Registry can be useful in other aspects. When it comes to handling situations like these, I think they should be kept out of it. After they testify, then the Registry can take charge. I have no objection to that at all. Prior to testifying, I think that the rapport and the trust between the prosecuting counsel and the witnesses should be maintained.

Q.        As you mentioned earlier, there have been some embarrassing incidents of the OTP members coaching the witnesses. Are there any checks that are workable enough or controlling mechanisms against this practice?

A.        Yes. When you have lawyers who are members of their bar, who know their ethical responsibilities, they conduct themselves differently. When you have a lawyer who has never been called to a bar, who has never practiced anywhere else, then finds himself here and is allowed to practice, they make those types of mistakes. So the Prosecutor has implicitly insisted on it that people who go to the Court are people who have been called to the bar in their respective national jurisdictions. So after they go through their law studies, they go through the bar courses, they know their professional and ethical responsibilities, and know how to handle these cases. If you get somebody fresh from the university, he or she will not know this. Some of them are probably trying to win their first case. So they go all the way to make sure that they win a case. But when you are used to handling these cases, you know that you do the best that you can, and you leave it to the Judges to decide. In that context, people who fall into these categories have no problem with proofing witnesses.  Usually the less experience a lawyer has, the more zealous they are to ‘win’ their cases, and the more likely they are bound to make mistakes. Lawyers, who join the OTP with reasonable experience, are less likely to fall into such traps. They know that within their law society, there are acts that they could be disciplined for. So they know how to handle it.

 

Q.        What is your attitude towards the decisions of the ICC rejecting witness proofing? They distinguish between witness familiarization and witness proofing, which they refer to as coaching or substantive preparation.

A.        I think, with respect to the ICC, there are a lot of things that they are doing differently, and this is one of them. I think that the mistake we had at the ICTR is that we appointed the Judges first. That is what they did with the ICC. These Judges have been sitting there with basically not much to do, and they are now fighting with the Prosecution for work. That is an embarrassment actually. If you read that judgement, you do not find any clear legal reasoning and support, either in case law or in legal principles. You just do not see it anywhere. When you leave that alone, and you see the series of motions that the Prosecution filed and what the Judges say, out there fighting to control the investigation in the DRC, Uganda, etc. It is embarrassing. I think they have undermined the ICC. Even their choice of cases for the Prosecutor to bring before the Judges. There are a lot more serious individuals out there who should be indicted. Taking cases of minor accused that do not bear the greatest responsibility for the crimes allegedly committed makes one begin to wonder what the primary objective of the ICC is. The work that they have done now is not comparable to the funding that has gone in. It has completely undermined the international criminal justice system.

Q.        In these decisions about witness proofing, they reasoned in this way because they could not establish any legal basis for witness proofing in the Statute or the Rules of Procedure and Evidence nor in customary law nor in general principles of law. Many jurisdictions, even some common law jurisdictions, consider this practise unethical. Here at the ICTR, we have more or less the same picture with respect to applicable law, as this practice is not codified. Do you consider that it might be helpful to codify it? Would that be conducive to greater procedural certainty?

A.        If you look at that decision, it was cited in the Court here, in two separate cases, and it was rejected. Our courts overruled the ICC on this point, in Karemera. What you recognize is how we are trying to understand witness proofing. When you have a situation where you have to tell the witness certain basic things, I think that for lack of a better word they are calling it proofing, but that really is not proofing. Secondly, when you have a very high turnover of investigators, you are reading, as the prosecuting counsel, 5-6 different statements, they do not make sense to you and they have gaps. You want to understand what the witness is talking about. You are not going to tell the witness, “Say this.” You are going to say, “On these dates you said you were in Kigali at 10:00 in the morning. At 11:00 on the same day, you are talking about things that took place in Butare. Can you tell me how you travelled from Kigali to Butare?” You do not talk about the facts or the details. You want to know whether it is actually feasible. You know the distance, you know the transport problem, and you know the conditions at the time. The investigators who were writing these statements could very easily have made mistakes. There are, for example, two places in Kigali called Masaka, and when one is talking about this Masaka or that Masaka without explaining, you may discover that the witness is talking about two different places and two different things altogether. And you do not want to be surprised in Court at all, when the witness says that he was talking about the other Masaka. You are not trying to let them tell you the details about what happened, you are trying to find out about things like this. To me, that would be proofing, and I would not see anything wrong with it. You are not telling the witness to either change her story, or revise her story, or anything like that. You want it to be clear in your mind what you are talking about, and you want to be on the same page as the witness.

Q.        Imagine, for example, an investigator or Prosecutor says to the witness that it is not possible to be in those two places, and then the witness changes her story.

A.        You do not actually ask a question like that, because that would be a very bad way of doing it. That may be the borderline between proofing and coaching. You do not say it is not possible, you simply ask how they travelled from this place to this place. How long did it take? You are not going to read the statements to the witness, or summarize them for the witness. The witness made several statements about ten months ago and does not even remember. You are not going to go through and update the witness; you are just going for those specific points. The witness may not even know why you are trying to find out how he or she travelled from Kigali to Butare. That will not make the witness change the position. The nature of the questions being put to the witness must be as neutral as possible. You are not trying to get a yes or no answer or to seek an explanation that goes to the core of the statement. It is more or less logistics that you are trying to ascertain.

Q.        But imagine that the witness and the OTP member are alone together. What prevents the OTP member from asking such a question? Professional integrity?

A.        Professional integrity. What I told you, earlier, is that there are people who have not been called to the bar, who do not understand professional ethics. Who do not understand that, first and foremost they are officers of the court? They are not there to mislead anybody or to coach witnesses. A lawyer who recognizes that first and foremost, he is an officer of the court cannot and need not coach a witness. You do not have to have anyone chaperone you when you talk to a witness. If you have somebody who can abuse that process, surely you can get to the very extreme end where they are not even only asking those questions, they are saying, “No, you better change this one if you want us to convict so-and-so.” They can go that far.

Q.        I may not even ask this question and just make some gesture or move of an eyebrow and a smart, dishonest witness can perceive this signal and change his story afterwards. I am trying to figure out the thin line between coaching and proofing, it seems very evasive.

A.        To me, I do not talk about coaching and proofing in isolation. I start from the professional integrity of the lawyer. If the lawyer is unprofessional, it does not matter how you call it. The lawyer will abuse his position. We have found lawyers who have cheated their clients in national systems, who failed to file their tax returns. All these things happen. But I am talking about a responsible lawyer. In every situation you have those who fall short of the standard. When you discover that, either you fire them or you discipline them. But you must be able to accept that there are certain standards in which certain things must be done, and you must accept that standard. If we fall out of that then we can not get any threshold. That is my position. It may not be satisfactory, but it is the way I see the role of the lawyer here. First and foremost we are officers of the court. You do not tell lies. You respect your professional ethics. You have contact with those in Chambers, Defence, and you are all colleagues. You do not go discussing your cases outside, when they are sub judice. I have seen people who argue their cases in Court, and then they continue arguing in the press. The same issue that they argued in Court. You do not do that. Some people may ignore you, but others would understand the rule and say: “that one, leave him alone.” I think how your peers treat you is very important. For a lawyer who respects himself, and knows that as an officer of the court, he must also get the respect of his peers. Otherwise, he is in the wrong place.

20.       Concerning judicial activism at trial, Judges may order production of evidence or summon witnesses under Rule 98, and may control the mode and order of interrogation. How do you feel about those powers? Have they been invoked frequently, and if so, have they generated problems?

A.        I have no problem with that. I would even prefer that it was used more frequently by the Judges. For the simple reason, again, of the unique situation of Rwanda. You get a detained witness coming to give evidence. They know a lot. There are certain questions that, for whatever reason, the Prosecution does not wish to ask, and the Defence does not wish to ask. The Judges, by reading the statements that have been disclosed, they will know that both parties are avoiding this particular issue. Why? I think the Judge should go ahead and find out about it. Because the Judges are neutral, they want to know as much as possible to assist them to arrive at a correct decision. The Defence and the Prosecution are limited by the rules. There are certain things that, if they want to raise, the other party will object, quite vigorously. But they will not object when the Judges start grilling the witness. So, they should do this. There are certain witnesses who, when they come, they can tell that they want to say certain things to the Judges. When this information reaches the Judges, sometimes they decide to ask them in open court, publicly. And the Defence and the Prosecution may not be aware of this information. So there is certain information that the Judges have, that they have to put to the witnesses. They should not be limited.

Q.        But why has this power not been very frequently invoked by this Court?

A.        I think that a lot of things that may or may not go wrong also depend on the workload. When you have a panel of Judges, in the morning they are on one case, and in the afternoon they are on another case, again, because of the completion strategy. At one stage, we commented, almost jokingly, when, in Court, one Judge was asking a witness to clarify a certain fact. But that fact was not raised by that particular witness. It was raised in the morning, in another Court, by another witness. The first one and the second are overlapping. You have two trials running concurrently with the Judges sitting on both. Sometimes, it is this pressure of work that causes Judges not to ask the questions that they should ask. Sometimes they are simply physically exhausted. Again, I go back to the same thing. It is a practical court problem. I do not think it is a conscious legal decision that they take not to pursue a line of inquiry.

 

Q.        You think that they are not afraid of parties reproaching Judges, when they call additional evidence which could help or hurt one or the other party?

A.        I think some Judges in the past; the late Judge Kama for example, asked a lot of questions. Sometimes, people were afraid he would take over the case. He was a typical trained civil law Judge, who feels that he is in charge. So if you are not very careful, at least the advice some lawyers gave, do not let the Judge take over your witness. He asked lots of questions. And, he was a very good judge.

Q.        How can you stop a Judge?

A.        In order to stop him, you simply have to sit down and wait, until your turn comes. I think it is not a conscious decision that is taken. It is really the pressure of work. If you stay here longer, I think you will notice the pressure under which all of the Judges work.

21.       Is the power of the Court to prosecute contempt itself in your view problematic? In certain cases, there is a conflict of interests if the Prosecutor is allowed to investigate and prosecute an incident of contempt.  So the Chamber can either delegate this matter to amicus curiae or investigate and prosecute the matter itself. For us, it was quite surprising that the Judges can themselves prosecute and decide on the charge. Do you see any problem here?

A.        I think that there is a problem. I think that Prosecutors will recognize that problem. In one of the cases that we did, the Appeals Chamber ordered the Prosecutor to investigate. The Prosecutor decided to appoint a special Prosecutor outside of the Tribunal. You probably heard about it. This lady from the United States was appointed to come and help out. Even the appearance of conflict of interest should be avoided. On the other hand, when the Registry is ordered to investigate, you also know the limitations of the Registry. Their staff are not professional investigators, so when they go to investigate, they are fact-finding not with a view to conduct a prosecution. So much or all the investigations conducted by the Registry, they found nothing wrong. With investigations that the Prosecution had asked the special Prosecutor to investigate, they investigated, and the prosecution was such that at the end of the day, the accused pleaded guilty, that was GAA. Right now there is another case going on with the same issues. What we have to recognize is that where the Prosecutor is asked to investigate, the Prosecutor looks very closely at the conflict of interest. When the Prosecutor forms an opinion that there is a conflict of interest, he will appoint a special investigator. Where he thinks it can happen without compromising himself, he has done it. But we should all be alive to that issue of conflict of interest. It is there, and for the Prosecution in particular, where we are investigating defence witnesses for contempt of court, we must be extremely careful not to send a signal that any defence witnesses will be subjected to this because of their testimony. It also can be the wrong picture that if you go and testify for the Defence, and the Prosecutor does not like it, they will investigate you. That would be terrible if that impression was created. I think the Prosecutor is aware of that, and so far he has only been a part of two cases of contempt. There could have been a lot more. People have been constantly changing their stories. Recently there was a witness that escaped from here.

Q.        Would you consider vesting this power in the Court problematic, because the Court can also undertake prosecution itself? Is that not strange?

A.        On the face of it, it looks strange, but the Court is not getting its staff to investigate and prosecute. The Court, on the face of the record, says, “We think there is something wrong here, let it be investigated.” You will go before another bench altogether, which are not aware or conversant with this situation. So while it is your Court that orders the investigation, it will be tried in another Court, so we build a Chinese wall there. That brings some protective measures. At least you know that it is not the same Judge who orders the investigation who is the Judge who will hear the case and convict. The matter is before the Judges, and when it is so apparent that something has been done wrong, they should issue some orders. I do not see that as being a contradiction. The nature of the process is such that the Judges must initiate the process.

Q.        Are there any statistics available as to how many people from the prosecution side, including members of the OTP and witnesses have been held responsible for contempt, and on the other hand people from the defence side.  Are these numbers approximately equal?

A.        I cannot tell you offhand. On the other hand, it should be in our database, and it should not be difficult to find out. If you talk to the Chief of Prosecutions, he could provide these statistics to you.

Miscellaneous

22.       Our next question relates to the rules of conduct being followed by the Prosecutor. Are there such rules of conduct, and are there—we already have spoken earlier about affiliation with the national bar association—other rules of conduct that might apply?

A.        I think we have got two rules that were issued. One was by Prosecutor Louise Arbour; the other was by Prosecutor Carla Del Ponte. These are the rules of professional conduct for the Office of the Prosecutor.

Q.        Would you consider it useful to have a specific code of conduct for the Office of the Prosecutor, because there are so many people working together, with different backgrounds, coming from different countries?

A.        I think it is very important to have a code of conduct. What allows institutions and lawyers to be taken seriously and with respect is that you know what regulates their conduct. When you pick up a booklet and you see the line-up, then you know the type of people you are dealing with. Take proofing a witness, for example, where the code of conduct lays down that, in proofing, it is expected of counsel to do ‘A, B, C, and D,” then the Defence, the Judges, and other persons who look at it will not be alarmed, because they know what is taking place. So having a rule like that helps and it also provides a level of comparativeness. You know that a lawyer from the United States, from China, or from India, all working here, what are the professional standards in their particular countries, and how does it relate to these rules? What does it mean to compare them? If you are in Rwanda, and you are appointed a Prosecutor there, in another place you might be called an assistant counsel. The rule gives you some guidelines and comparativeness, it would be very helpful. The only problem is, I do not know why it has not been done. It should have been done a long time ago, to give them some guidelines.

23.       Does it occur that there are disagreements or conflicts within the OTP, either related to professional ethics or strategy, or how are these disagreements and conflicts resolved?

A.        It does occur. At a structural level, in the prosecution section, we have the Prosecutor, the Deputy Prosecutor, the Chief of Prosecutions, and the senior trial attorneys. The senior trial attorney is in charge of his case. The Chief of Prosecutions oversees all of these. When the Chief of Prosecutions sees any of these conflicts, he discusses it with the Prosecutor. Every week, there is the senior trial attorneys’ meeting, where all the different legal issues are discussed. In the context of coordinating the different legal issues that crop up, we know that when the issue is being raised in one case, we know that the same issue will probably be raised in another Court, so we discuss it and ensure that the response to these issues are similar, although the detailed facts of the cases may differ but the overall theory is applied the same. The primary responsibility of coordinating these falls to the Chief of Prosecutions, who has discussions with the Prosecutor, and also in the weekly meeting of the senior trial attorneys. If there is an urgent issue, then an urgent meeting is called.

24.       This Tribunal will close down soon. In your opinion, has this Tribunal and the OTP in particular, achieved the objectives that have been put before it by the Security Council, and in your opinion, what are the important lessons that could be learned by future international criminal jurisdictions?

A.        Assessing success is very difficult. Partly, there is the second part of the mandate of the Tribunal, which has not been emphasised, that of promoting reconciliation. You will see that that section and the prosecution of the accused persons, is very contradictory. You are going to call witnesses who come and say the worst possible things against these people in order to get them convicted. And then, soon after that, you want them to reconcile. I think it is demanding a bit too much from an individual who has been traumatized, to be subjected to this.

Secondly, the prosecution itself was limited, in the sense that, while unlike the Special Court for Sierra Leone, where it was very well expressed that you are taking those who are most responsible, we are taking those who are senior. However, we cannot take all those who are senior. We can only take a certain percentage of that. There are some more that are not going to be prosecuted, even if this Tribunal stayed longer, it is simply not possible to prosecute all of these. So some of them probably will be transferred to Rwanda, either in the context of transmission where the files are given to Rwanda without the indictment or through 11 bis if it succeeds. I think where the Tribunal has been very successful is through its jurisprudence. Also, if one listens to the speeches made by a number of African leaders now, they speak the language of human rights respect. Some of them even talk defensively. They start by saying, “no, we did not commit any crimes, we respect human rights.” Even when they are killing people, they tell you that they are respecting human rights. I think that is a fundamental success that we have not talked much about – the choice of language of the leaders in this region. How they feel about these prosecutions. Of course, in the context of supporting the victims and witnesses, we have not been very successful. Partly because of the gaps in the law and the Rules of Procedure. Something should be done about that. If you are thinking about future prosecutions, we should try and see how we can rate within a legal context, the protection of victims and witnesses, and how they can be parties to the proceedings. Another area is the issues of the defence counsel, because they are not an organ of the tribunal, but they are a very important component of it. There should be some way in the future to make them an organ of the Tribunal itself, to get a proper structure, to put them within the system. When you hear them argue about the equality of arms, sometimes I feel sympathetic with that argument. There are certain things that really are unequal, in certain respects. In the future, I think they should try and think about how they can restructure the Defence presence better than it is at the moment. I see their problems and I do think that they have legitimate problems.

Q.        A frequently heard criticism is that the contribution of the ICTR to reconciliation, to peace and security and also to a purely judicial function, would be much greater if they prosecuted the crimes allegedly committed by the RPF. Would you agree?

A.        I think you can probably discuss that with the Prosecutor, too. My view is that it is important to prosecute the members of the RPF. But we should not lose sight of the fact that the ICTR is principally a genocide tribunal. It is not a war crimes tribunal like the ICTY. So the focus has been on genocide and crimes against humanity. That is why we find very few cases of war crimes here, across the board. I think there might be four to six war crimes cases. Not like the ICTY. Lately, we have been trying to get as many war crimes counts as possible. For the last eight years or so, there have been very few indictments for war crimes. Where there is sufficient evidence, it is important that they should be indicted and prosecuted. I would think that would be a matter of course. Not something that is exceptional, because the Prosecutor has the responsibility to investigate all sides. Not only one side. I think that is a statement everybody can agree with. At least from my point of view.

[End of interview]