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contribution 38 - KHAN Khalida Rachid

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Position of victims in proceedings - witnesses - Longueur des procédures

Juge Khalida Rachida KAHN

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Thank you very much. I will start by greeting Mr. Chairman, Honourable President, Honourable Judges, Mr. Prosecutor, Mr. Registrar, and all distinguished guests present here.

Before I proceed to present my paper, I would like to make a small brief observation on the comments made by Madam Florida and Aïcha Condé. We are very vigilant, very attentive when we are in the court, very much concerned about the witnesses, especially the victim witnesses. We would not allow the Prosecution to put any question which would traumatise the witness. We would not allow the Defence to cross examine the witness beyond the limits of cross examination. We are very much to there were occasions that we had especially I had to adjourn the proceedings to let the witness to compose himself or herself. So this I want to make this very clear to all that the Judges in the court are very much concerned about the witnesses, especially the victims.

Now I proceed to present my paper.

Drawing inspiration from the title of this conference – Arusha: Model, or Counter Model for International Criminal Justice – I have decided to focus my paper on a discussion of some of the strengths and weaknesses of the Arusha model, allowing you to draw your own conclusions about whether or not the Rwandan Tribunal is a ‘model’ or a ‘counter-model’.
In order to highlight some of these strengths and weaknesses, I will be relying upon my own experience in presiding over trials before the Tribunal, as well as my experience as the Vice President of the Tribunal. I will also be focusing on the trial phase of cases before the ICTR, in highlighting these strengths and weaknesses.
I joined the ICTR in August 2003. I have been involved in a number of trials before the ICTR. I presided in the case of Prosecutor v. Mikaeli Muhimana I also sat on the trials of Prosecutor v. Protais Zigiranyirazo, and Prosecutor v. Emmanuel Ndindabahizi. All of these cases were single accused cases.
More recently, I have presided on the bench of cases in relation to which either trial judgement is pending, or trial is still ongoing. The first of these cases is that of Prosecutor v. Casimir Bizimungu et al., (informally known as the “Government II case”), which involves the prosecution of four former Rwandan government ministers of the Interim government of 9 April 1994. Judgement is currently pending in this case. The second case is that of Prosecutor v. Léonidas Nshogoza, a single accused contempt of court case, trial against whom was recently concluded. Judgement is also currently pending in this case. I am also currently presiding in the trial of Prosecutor v. Dominique Ntawukulilyayo, which is ongoing – the Prosecution evidence just having been completed in late May 2009.
In addition to these trials, I have been involved in the pre-trial phase of a number of cases, and have rendered decisions following the Prosecution’s application for referral of cases to national jurisdictions, pursuant to Rule 11 bis of the Rules of Procedure and Evidence.
In addition to my judicial functions, I have carried out duties in relation to my role as Vice-President of the Tribunal.
I will therefore draw on all of this experience in highlighting some of the strengths and weaknesses, as I perceive them to be, of the Arusha Model.

The ICTR was established on 8 November 1994 by United Nations Security Council Resolution 955, the Security Council acting under Chapter VII of the UN Charter. That Resolution determined that the reports of genocide and other widespread violations of International Humanitarian Law constituted a threat to international peace and security. It also determined to put an end to these crimes and to bring to justice the persons responsible for their commission. Resolution 955 also stressed the need for international cooperation.
It was established at the request of the new Rwandan government. It was thought that establishing an International Tribunal – as a response to the atrocities – would ensure an impartial body was set up to deal with the atrocities; that it would assist in bringing to justice those who had sought refuge in third states; and that it help prevent recurrence.
This decision was taken about 18 months after the adoption of the resolution establishing the International Criminal Tribunal for the former Yugoslavia. In that case, the Security Council had similarly acted under Chapter VII in establishing the ICTY.
In analyzing the legal basis for the Rwanda Tribunal, it can be compared with what are commonly referred to as hybrid, mixed, or ‘internationalised’ Tribunals, such as the Khmer Rouge Tribunal, or the Sierra Leone Tribunal, the bases for which are international agreements.
Number two, The Tribunal’s Statute, or constitutional document, was annexed to Resolution 955. Pursuant to Article 28 of the Statute of the Tribunal, States are required to cooperate with the ICTR in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law, including assisting in the arrest of fugitives.
Number three, regional legitimacy. The seat of the Tribunal being in Arusha, Tanzania, also signifies the strength of regional co-operation amongst East African States in bringing to justice those most responsible for the Rwandan genocide. Arusha also has historical significance for the events which took place in the lead up to the genocide, as being the location where attempts were made to broker a peaceful resolution to the political struggles in Rwanda – known as the Arusha Accords.

Number 4, the International Judges and the Staff members. The Tribunal’s judges are drawn from all regions of the world, from both civil and common law backgrounds, having contributed to the emergence of a ‘hybrid’ judicial system at the international criminal law level.
Right now, at the ICTR, we have trial judges from all corners of the globe (St. Kitts and Nevis (President); Pakistan (Vice-President); Tanzania; Norway; Turkey, Ghana, Kenya; Denmark, Burkina-Faso, Russia, Cameroon, Madagascar, Uganda, Sri-Lanka, Korea, Jordan). The Appeals Chamber judges are also from all over the world (Turkey, Italy, China, Jamaica, Senegal, U.S.).
By virtue of Article 12 of the Tribunal’s Statute, the permanent and ad litem judges of the Tribunal are to be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. Both permanent and ad litem judges are elected by the General Assembly from a list submitted by the Security Council.
The participation of judges from all regions is a two-way street. The Tribunal benefits from the varied experience of its Judges, who are familiar with domestic criminal law systems from around the world, and gives them experience in running trials that meet, even define what it means to meet, international standards. When we Judges complete our mandates, we will bring our experiences at the Tribunal back to our home States.

Having dealt with some of the features of the Tribunal’s international legitimacy, I would like to highlight some important positive aspects to the work of the Tribunal.
Now the second strength of the Rwandan Tribunal is its contribution to putting an end to impunity for the commission of international crimes; and, in a corresponding sense, to the creation of a regulatory system for the commission of such crimes.
The lCTR has made, and continues to make, a significant contribution to the development of international criminal jurisprudence, and in the evolution of a normative framework for the trial and punishment of those who commit international crimes.
Through its judgements and decisions, the ICTR has bequeathed highly significant case law. In particular, the ICTR jurisprudence provides abundant interpretative material on the legal nature and factual realities of the crime of genocide. A number of other important themes in the ICTR’s jurisprudence are also particularly significant to the development of the corpus of international criminal law.
The ICTR’s importance to the development of international criminal law – and its jurisprudential legacy – is therefore immense. For example, the first ICTR judgement rendered in 1998 in Prosecutor v. Jean-Paul Akayesu is a landmark case as the first conviction in history for the crime of genocide. It is also the first time that an individual has been found guilty of rape as an act of genocide. As a further example, the former Prime Minister of the Interim Government of Rwanda in 1994, Jean Kambanda, pled guilty and was sentenced to life imprisonment. This was the first time in history that an international criminal tribunal had held a head of government accountable for atrocities committed by his regime and challenged the traditional notion that a State sovereign is immune from prosecution and cannot be brought to justice.
The Tribunal has provided, and continues to provide, a wealth of jurisprudence (at both first instance and appellate level) interpreting the crimes in the Statute (genocide, war crimes, crimes against humanity), modes of responsibility (including direct criminal liability, superior responsibility, and joint criminal enterprise), as well as thousands of interlocutory decisions dealing with substantive and procedural criminal law issues.

The Tribunal’s jurisprudence is also constantly providing new precedents concerning the ways in which criminal liability may attach to senior military and political figures for events such as those which occurred in Rwanda.
Article 14 of the Statute empowers the Judges of the Tribunal to adopt Rules of Procedure and Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.

The Rwandan Tribunal reinforces the precept that individuals who commit international crimes will be apprehended and punished, if found guilty.
The Tribunal’s Rules of Evidence and Procedure take into account and provide for the circumstances with which they are dealing, for example.
Protective measures for victims and witnesses, including a branch of the Registry set up to address their needs, and safety and security;
Admission of evidence (admission of hearsay testimony, use of expert witness testimony. Judicial notice of “facts of common knowledge” and “adjudicated facts”, and in some circumstances, admission of written statements in lieu of witnesses testifying orally);
The Tribunal’s Rules of Procedure and Evidence are literally a work in progress. They are reviewed and updated or amended regularly by the Judges of the Tribunals. This flexible approach has allowed the Tribunal to incorporate lessons learned through the Trial process into the Rules themselves, so that future trials can take these lessons into account. The final amended version of the Tribunal’s Rules of Procedure and Evidence will be one of the Tribunal’s less-obvious but invaluable legacies for future international criminal trials.
The next strength of the Rwandan Tribunal is its contribution to the promotion of principles of fairness, commensurate with international human rights norms.
The Tribunal’s Statute enshrines standards of fairness taken directly from international human rights standards (see Article 14 of the International Covenant on Civil and Political Rights).
Articles 19 and 20 of the ICTR Statute oblige the Chamber to uphold the rights of the Accused. The rights enshrined in these articles are derived from Article 14 of the ICCPR, and are consistent with those enshrined in regional mechanisms such as the European Convention on Human Rights, the African Charter on Human and People’s Rights, and the American Convention on Human Rights. In addition, to these rights, Article 9 of the Statute of the Tribunal guarantees that an Accused will not face double jeopardy (Article 9: non bis in idem). Moreover, the Tribunal has expanded upon the particular rights enshrined in Article 14 of the ICCPR in certain respects. For example, the ICTR has enshrined specific rights of suspects in Rule 43 of its Rules of Procedure and Evidence.

For the weaknesses: The length of the proceedings, including pre-trial, trial, and appeal phases.
The following factors may be said to contribute to the length of the proceedings:
First, the complexity of proceedings, including the number of counts in the Indictments, and number of modes of liability pleaded with respect to each count; the number of witnesses called to testify in each case, and number of trial days; the number of documentary exhibits admitted in each case; the number of interlocutory motions filed in each case and written decisions/ oral rulings rendered thereon.
By way of illustration, and drawing from my own experience, I previously mentioned the fact that I recently presided in the trial of a multi-accused case, informally known as the Government II case. The evidentiary phase of the trial in this case commenced in November 2003, and closed on 12 June 2008, during which period the Chamber sat for a total of 399 trial days. During those 399 trial days, the Chamber heard 171 viva voce witnesses (57 witnesses for the Prosecution, and 114 witnesses for the Defence). Of these 171 viva voce witnesses, seven were deemed to be experts and testified as such. The Chamber also admitted into evidence the written statements of 17 witnesses, pursuant to R. 92 bis of the Rules of Procedure and Evidence, in lieu of those witnesses testifying orally before the Trial Chamber, as well as one deposition, taken pursuant to Rule 71 of the Rules. In addition, the Chamber admitted some 975 documentary exhibits in this case, totaling more than 8,000 pages. The Chamber also rendered in excess of 300 interlocutory decisions (oral and written) during the course of the trial.
Second, in particular – and still in relation to the complexity of the proceedings – multi-accused cases have typically taken longer pro rata than single-accused cases.
Third: Still in relation to complexity of the proceedings, the rendering of written judgements takes some time post completion of the trial, due to the volume of material which must be considered by the trial bench.
Fourth, disclosure issues have plagued the Tribunal. These issues commonly arise and are heavily litigated in the pre-trial and trial phases. Often these issues give rise to applications for stay of proceedings.
Fight, language/ translation – English and French are the official languages of the Tribunal; witnesses also commonly testify in Kinyarwanda. Proceedings are simultaneously interpreted into these three languages. All documents, including exhibits, and motions and decisions, must be translated into the other official language of the Tribunal. Heavy strain is placed on the Tribunal’s language section.
Sixth, the ‘international’ nature of the Tribunal – Defence teams maintain legal practices in their own domestic jurisdictions and therefore are not always available. All employees of the Tribunal (from the Office of the Prosecutor, the Registry and Chambers), as well as judges, are from all over the world.
Seventh, Witness issues – unavailability due to illness etc., may cause a delay in proceedings if no other witness is available in Arusha.
Finally, the weakness said the so-called ‘victor’s justice’ criticism of criminal liability for the Rwandan genocide
In some legal academic literature, and non-governmental organisation analyses of the Rwanda Tribunal’s work, the Tribunal has been criticised as being an example of “victor’s justice” in that – to date - no indictments have been laid, by the Prosecutor, against members of the Rwandan Patriotic Front.
Criticism levelled at the Tribunal has focused on its “politicisation” (ie. the impact of politics on judicial decision-making).
Recently, for example, the non-governmental organisation Human Rights Watch wrote to the Prosecutor of the Tribunal urging him to prosecute crimes committed by the Rwandan Patriotic Front (RPF) in 1994, and stating that a failure also to address these crimes would leave many with a sense of one-sided, or victor’s, justice, thereby undermining the Tribunal’s legacy.
It remains to be seen whether or not RPF indictments are laid by the Tribunal prior to the completion of its mandate.

In conclusion, I would say that the strengths and weaknesses of the ICTR have become evident from our experience and are being taken into account in the development of other transitional justice initiatives, most notably the international criminal court.
In this sense, I would invite you to consider the fact that even the so-called ‘weaknesses’ with the Arusha Model are positive in the sense that the lessons learned from the experiences actually contribute overall to the evolution of the international criminal normative system.


Merci, Madame la Vice-présidente. Peut-être Madame la Juge Arrey, Monsieur le Juge Short, je ne sais pas. Vous intervenez peut-être pour synthétiser également vos propos.