Detainees Arusha,
December 15 2000
c/o UNDF/ICTR
P.O.Box 6016
Arusha - Tanzania
Mrs Navanethem Pillay
President of the ICTR
in Arusha –Tanzania
Messrs Judges of the ICTR Appeals Chamber of
The Hague –The Netherlands
Madam and Judges of the ICTR Trial Chamber
Arusha –Tanzania
Subject:
Scandalous revelations by Mrs Carla Del Ponte
Madam the President,
Madam, Judges,
The Detainees at the UNDF, signatories of the
present letter took knowledge of the revelations
made by Madam the Prosecutor during her press
conference held in Arusha on December 13, 2000. The declarations of Madam the Prosecutor released by the medias
corroborate the concerns many times
expressed and carried to the attention of the highest authorities of the Tribunal through our complaints and our
documents of analysis denouncing the
lack of impartiality, equity and independence
by the Judges. They explain why
defense motions are systematically
rejected in spite of their relevance while those of the Prosecutor are generally approved in spite
of the absence or the insufficiency of
evidence to support them. It is the
same for the judgements so far rendered
by the Chambers.
By addressing the present letter to you, the
undersigned wish to express to you
their disappointment and hope that, this time, it will be possible for you and for all the Judges of
the ICTR to take the measures required
by the seriousness of the situation.
According to the Hirondelle Agency dispatch of December 13, 2000, Madam
the Prosecutor of the ICTR held an
important press conference at the ICTR
Headquarters in Arusha, after a one week stay in Kigali. During her stay, she
lengthily discussed with President Paul Kagame
many questions in connection with the activities of her Office as from the next year.
We raise hereafter some of her scandalous
declarations which, according to us,
require your reaction in the interest of Justice.
1.
The ICTR judges compensate for the insufficiencies of the Accusation
During this press conference of December 13
2000, Mrs Carla Del Ponte again dealt with her constant concern about the
" weakness " of her
collaborators in front of the defense Counsels who are all excellent lawyers, according to her own
terms.
Answering to a journalist of the weekly
magazine " East African "
which had expressed his astonishment to hear Madam the Prosecutor complain about her
collaborators whereas they always had
won their cases and that all judged
cases led to indictments, Mrs Carla Del Ponte declared without reserve:
" That means our judges
are very good judges, because they can
correct the errors of the Prosecution ".
By this declaration, Madam the Prosecutor
confirmed our observation expressed
many times on the absence of
impartiality in our trials. She explicitly confirmed that far from being
neutral, our Judges supplement the
Accusation and, if need be, compensate
straightforwardly for her insufficiencies. Moreover, the confirming judges
who until recently could not sit in the trial proceedings on the merits
have been just authorized to do so by the amended Rules. This confirms the bitter observation that the
judges remain indifferent to the
Prosecutor refusal to produce, during the
trial on the merits, the evidence having justified the confirmation of
the indictment and the trial. Lastly,
the amendment of rule 94 of the Rules
seems to exempt the Prosecutor to provide the evidence of her
allegations.
Other cases illustrate this analysis as
well. We can quote by way of examples : the authorization in the course of trial of new charges relating
to the rape, convictions without evidence for assassination of non identified
individuals, amendments of the Rules
pursuant to the Prosecutor proposal when she has difficulties and, more
recently, the reopening of the debates authorized by the Judges in the Bagilishema case on September
7, 2000.
In this last case, it should be noted that after the obviously weak Prosecutor’s closing speech and the richly documented defense counsels’ pleading, instead of closing the debates and put the Bagilishema case immediately on deliberation, the Judges of Chamber I, contrary to the usage, decided to grant an additional time to the Accusation by obliging her to produce more evidence in spite of her resistance shared by the Defense.
Mrs Adong who represented the Prosecutor at
this hearing, expressed herself as
follows : " Mister
President, this delay is not caused by
the Accusation. We did not ask for
an additional time to proceed to our
answer. We respect the instruction which was given by this
honourable chamber. This cannot be
blamed on us. " She was
answering to the protest from defense counsel, Me François Roux, expressed as
follows : " Mister the President, it had
been clearly agreed between the parties
that at the latest at the end of this week, the debates were closed so that the Chamber could undertake
its deliberation. We note, today, that the debates will be closed only in
several weeks. The Chamber will thus undertake its deliberation only in
several weeks. I do not see why this deliberation would be
shortened. "
2.
The untimely amendments of
the Rules imposed by the Accusation are
the cause of the delays recorded in the
starting of the trials on the merits.
At the time of her press
conference, Madam the Prosecutor
declared herself satisfied with the amendments made in the Rules and recognized that the Judges did
everything to facilitate the task of
her Office to the detriment of the Defense.
Madam the President of the
Tribunal confirmed this appreciation in her work report presented to the General Assembly of the United Nations
and to the Security Council last
November. After having presented an
exhaustive inventory of the motions
examined by the three Chambers of the Tribunal
during this year, especially distinguishing those emanating from the Accusation from those introduced by the
Defense, generally qualified as
frivolous, the ICTR President seized this occasion to reassure the UN authorities of the measures
taken against the Defense by
declaring : " The
ICTR Rules of procedure and
evidence was modified at the
time of the plenary session held in
February 2000 in order to make it possible to the judges to impose sanctions to the counsels who, to the
opinion of the Chamber, present motions
which are futile or constitute abuse of proceedings. ".
It is important to stress that the Prosecutor
takes part in the debates of the
plenary sessions whereas the Defense is not represented there.
It is significant to note that this same
report omits to mention the amendments
made to the Rules at the request of the
Prosecutor to help her regularize irregular detentions (article 40 bis) or make succeed her strategy of joining
the accused (article 48 bis).
The report does not even refer to delays in
proceedings caused by motions
introduced by the Prosecutor to obtain
authorization to amend confirmed indictments, in order to carry out joined trials. All these attempts having been strongly disputed by the Defense, article 48 bis of
the Rules again has been just amended
last November, in order to help Madam the Prosecutor who had difficulties in explaining the legal basis of the joined
trials.
Encouraged by all the successes recorded to
the detriment of the Defense, Madam the
Prosecutor does not hide any more her certainty of being able soon to convince the Judges to hold certain hearings
of the Tribunal in Kigali in order to
meet the Rwandan Government
demands.
It is obvious that in front of the deficiency
of the material evidence to support her
allegations, Madam the Prosecutor wants to rely on the pressure of the street to compensate for it.
3.
The independence of the ICTR sacrificed to the demands of the Kigali Government.
At the time of her press conference of
December 13, 2000, Mrs Carla Del Ponte admitted and declared publicly that the activities of the ICTR depend on the Government of
Kigali. According to her, it is by realism that she had discussions with
President Paul Kagame on the activities
programmed by its Office of Kigali for the year 2001. But, it is not all.
Always during this press conference, Carla Del Ponte acknowledged her incapacity to prosecute recognized
criminals, currently on power in
Kigali, without prior agreement of
their leader, namely, General Paul Kagame. As a result of their recent discussions, Paul Kagame would have
promised to her access to the information collected by the Rwandan authorities in connection with the
investigations carried out against certain
RPF soldiers.
Concerning the possible incrimination of the
General Kagame, regularly denounced as
the principal assassin of President Habyarimana, Mrs Carla Del Ponte limited herself to affirm, to the
general surprise, that she
" does not work on presumptions ". This answer is all the more surprising that her
Office did not wait to collect as many material evidence to arrest the undersigned, detained for long years by the
Tribunal.
How can she proceed differently to open a
criminal case against Kagame and his
principal accomplices if she refuses to take into account presumptions as serious as those contained
in the declaration of J.P Mugabe of
April 21, 2000, that of Hakizabera Christophe made on September 9, 1999, that of Steven Edwards published in the
National Post referring to the report
made on 1 August 1997 by the
investigator Michael Hourigan, or that more
recent of the former member of Parliament and RPF officer, Kagiraneza
Deus, dated on December 7, 2000?
Article 6 of the ICTR Statute, in its item 2, is however very clear : “The official position of any
accused person , whether as Head of State or Government; or as a responsible
government official, shall not relieve such person of criminal responsibility
nor mitigate punishment".
The attitude of Madam the Prosecutor of the
ICTR with respect to the suspect Paul Kagame is an irrefutable
evidence that she prefers to close the
eyes on the crimes committed by RPF in general, on those of
President Paul Kagame, in particular, to avoid the closing of her Office
in Kigali.
When one knows with which eagerness, the
Prosecutor launched her international
warrant for arrest against President Milosevic, one can only be astonished by the arguments put
forward to justify inaction against Kagame and his accomplices.
4. Madam the Prosecutor
takes refuge behind Judge Bruguière to
avoid investigation of the assassination of
President Habyarimana
At the time of her press conference, the ICTR
Prosecutor, Mrs Carla Del Ponte finally recognized that the assassination of President Habyarimana is indeed related
to the massacres which took place in
Rwanda. But, she always seeks to avoid
her responsibilities to make an
exhaustive investigation into the subject
preferring to rely on French Judge Bruguière who however does not work on behalf of the Tribunal. In addition, it is advisable to recall that her predecessor at the head of the
Office of the Prosecutor, Mrs Louise
Arbour, had stopped the investigations in progress on this assassination in 1997 and had hidden Mr.
Hourigan’s report which contained the first elements of evidence implicating
the RPF and its leader Paul Kagame. It
remains however obvious that without
clarification on the authors of this assassination, whom are besides
identified, by serious witnesses, as being RPF men, it would be unjust and inequitable to continue to
make the opinion believe that it is
Hutu who have planned the tragic events which
shook Rwanda since 1990 until today.
5. Madam the Prosecutor
acknowledged to have no evidence of the
conspiracy to commit "genocide "
In the working report presented to the
General Assembly of the United Nations
and to the Security Council, Mrs. Pillay, President of the ICTR declared : "
According to the Prosecutor’s opinion,
the systematic, generalized and methodical character of the crimes which were perpetrated on the whole Rwandan
territory in 1994 implies that there
could have been coordination and thus conspiracy to destroy in whole or in part the tutsi group as such. This is
why, the office of the Prosecutor gives by priority to the investigations an orientation likely to
bring the material evidence that there
was conspiracy. It constituted new
teams of investigators targeting
particularly the political, military and administrative institutions which were in place at the time
of the genocide. Investigators furrow
Rwanda, Europe and the African continent in the search of elements of evidence and information which will make
it possible to arrest and condemn the architects of the
genocide. "
The same working report
indicates the " the
declarations of witnesses are the cornerstone on which the accusation
directly bases its argumentation
". There is something to worry
about as pursuant to this observation when it is known that the Prosecutor’s
witnesses are selected in consultation with the governmental authorities of Kigali which rely primarily
on the association IBUKA, commonly
called trade union of informers.
Selected, involved and framed
well by IBUKA, these witnesses receive in return to pay their false testimonies very substantial
material rewards financed by the
Tribunal The Prosecutor’s new
strategy consisting of using as witnesses in the trials detainees on standby
for trials related to "
genocide " and who are ready to make confessions
before the Rwandan Tribunals, is based
on the same philosophy. To accept
to testify before the ICTR constitutes
a major asset to benefit from the
reduction of sentence registered in the Rwandan law relating to the " genocide " and encouraging defendant to plead guilty
and to denounce themselves mutually.
Under these conditions, how not to put
questions about the behavior of the
Judges who guaranteed the arrests made until now and rendered judgements for " genocide "
without material evidence nor debate on
this question. It is clear that the judgements
rendered under these conditions lack
legal basis and are considered null and void.
The Undersigned estimate that the Judges
should put an end to their prolonged
detention since the Prosecutor recognized that she did not gather yet evidence to justify their arrest and their prosecution by the
ICTR.
They estimate that the
declarations of Mrs Carla Del Ponte, at her press conference of December 13
2000, are sufficiently serious not to
leave indifferent the ICTR Judges who are all blamed, the President of the
Tribunal in particular. As for Madam
the Prosecutor of the ICTR who
automatically disqualified herself by
inducing the Judges in error knowingly, she should resign or
dismissed.
Should it be otherwise, the
Undersigned would have nothing more but
the following alternative :
to support the parody of justice resulting from the general activity of the International
Criminal Tribunal for Rwanda or to
refuse to subject themselves to its jurisdiction. In any event, the Undersigned invite their Counsels to handle this question
urgently.
Please accept, Madam the President, the
Judges, the assurance of our very high
consideration.
Detainees (see list of the signatories in
appendix)
Cc :
- Mister the Secretary-general
of UN, New York,
-
Mister the Registrar of the ICTR, Arusha,
-
Defense Counsels (All),
- Rwandan Diaspora,
- Amnesty
International, London,
- Fédération
Internationale des Ligues des Droits de l’Homme, Paris,
- Human Rights Watch, New
York,
-
Africa Direct, London,
- Medias.
