home > SESSION 3 > 39

contribution 39 - ARREY Florence Rita

français english


Civil law vs Common law - Position of victims in proceedings - witnesses - Protection vs Publicité

Juge Florence Rita ARREY

original version

Thank you very much so that Judge Short shouldn’t start. Thank you, Mr. Chairman.

I just wanted to say that after the Akayesu case, Media case and the Kambanda Case, in December last year the Tribunal also came up with another landmark where it was held that music could constitute genocide. In the Bikindi case, the Court found that in three compositions of Bikindi, the lyrics in those songs were used during the genocide, that is, from April to June, RTLM played the songs with comments from the journalists. Because of the message conveyed, because of the words that were contained in the lyrics and the comments made by the journalists, the people were incited to go and commit genocide. So the Court held for the first time that music would also be held as an organ to incite genocide, even though Bikindi himself was not convicted on this ground, because during that period he was out of the country and the Prosecution didn’t have any evidence to present before the Court that he gave his authorisation for the RTLM to use his songs.

When we are talking also about investigation, I wanted to say how the manner in which witness interviews are conducted can affect the trial. As we heard from Mr. Kwende he just told us that the culture in Rwanda is that you only answer questions that are put to you. When the investigators go to witnesses, they question them on a particular individual concerning an event. Then the next time another investigator asks them questions concerning another person on that same event. What happens is that when they come to court and they are testifying in one trial, the Defence counsel tries to impeach them by bringing out the statement that the witness made in another trial by showing that in that particular statement no mention was made of that accused person in that statement. That takes a lot of time in court because they have to try to tender the documents and so forth, whereas if the interviewer had asked the witness to just state what happened during that particular event, it might have given the witness the opportunity to say what he knows about that event, including all the people who participated in the events, rather than signalling only one person.

And then Mr. Reyntjens was talking about false evidence in Court. I wish to confirm that in court lies come in all shapes and sizes. We have outright falsehood. We have cautious evasions. We have clear prevarications. And of course we have some counsel who misrepresent either the previous testimony of witnesses or their statements, stating something that is contrary to what they said before. And he asked the question about what has been done with people who give false testimony. Of course a few people have been convicted or tried by the Tribunal, but if we have to follow each person who gives a false testimony in court then we’ll hardly have any witness come because at one stage some of them will stop coming.

We were talking about protection of witnesses. The journalist was concerned that justice is not only to be done but seen to be done. I agree. But just think of a situation where witnesses are not sure of their security and they refuse to come because they are not protected. If those witnesses don’t appear in court, we will not have any trial, and the journalists will have nothing to report on.

In my paper I thought we should brainstorm on this issue of the fugitives which are at large, like the financier Kabuga, whom the Prosecutor has been trying for years to locate. And I thought this August forum should think of whether it won’t be possible to try those type of persons in abstentia, giving them the option that later on if they finally surrender to justice, then they might have the option of asking for some review or retrial. I thought this was a good forum for us to look at that because in some other jurisdictions also they have trial in abstentia.

And I also spoke about the different culture where we all come from, the common law and the civil law. This is usually manifest itself in court because where I come from I’m a common law trained judge. I think that no counsel should try to impute the character of a witness without having foundation. If you come to court and say to a witness you were charged with rape, I, from my training, expect that you should have some foundation for that allegation.

The other school of thought thinks that you can say anything on cross examination and get away with it. I say no.

We have all these differences on how to approach the court during the procedure. Some of us too are trained not to interfere very much when the witnesses are talking. Another school of thought is that you can always be asking questions as you go around. Then another aspect of our differing upbringing too comes from the management of the trials. There are counsels who, instead of doing cross examination, go about to either give submissions or even give evidence on behalf of their clients. Personally, I don’t have any problem with counsel who wants to give evidence, but if counsel wants to give evidence, he should go in the witness stand so that he can be cross examined.

Because of the different backgrounds of the counsel, we’ve had some humour in court too. First they talk about equality of arms, well, of course the Prosecutor has more means to do his investigation and prepare his case than the Defence. But when it comes to equality of arms, should we apply this too the time that the witnesses testify? Say if a Prosecution witness speaks for one hour, since we want to observe equality of arms, should we ask the Defence to cross in one hour? It never happens. The Defence usually takes at least twice the period that the Prosecution takes with their evidence in chief. So even though there is equality of arms, really sometimes also as I said we didn’t have equality of means because the Prosecutor is better placed at the site of the Tribunal. Defence counsels come all over the world. They have other commitments in their home country. So even when we are arranging trials, we have to make sure that we try to fit in their own national commitments.

Of course the logistics too. We have four courtrooms and normally they have already planned the schedule of court sitting. So sometimes when people are asking for time trying to change the schedule that has been fixed, it makes it most difficult for us.

I thought I should just share some humour that we’ve had in court. To lighting the atmosphere, a lawyer answered a question and the witness said to the lawyer, "I am surprised that a lawyer can ask such a useless question." At one stage he asked another question and the witness said: "I’m not a computer, so I do not have the dates and times in my head." Of course we always have this answer, "If I had known that I would be asked this question tomorrow, I would have written it down in a diary." And then they have always annoyed the witnesses who have been traumatised and who have lost their relatives and Defence counsel starts saying: "Look, I put it to you that you were not there." So they say, "Oh, I wasn’t there, but since you were there, then tell us what happened." At a case recently where counsel started, "Were you withdrawn", "Did you withdrawn." Then as we were waiting for him to ask the question he said, "Yes, witness, answer the question." And the witness said, "Withdraw. Counsel, you can now ask your question." Thank you very much.


Merci beaucoup, Madame, pour ce témoignage haut en couleurs, avec quelques exemples, mais aussi des choses évidemment très sérieuses comme la question du jugement par contumace. C’est vrai qu’une juridiction internationale vient effectivement d’être créée — le Tribunal spécial pour le Liban —, avec la possibilité de juger par contumace. Mais si j’avais un peu d’humour, je dirais que, peut-être, le problème sera qu’ils ne jugeront « que » par contumace. Mais c’est un autre problème.

Le Juge Short voulait peut-être dire quelque chose. Je ne ferai pas un mauvais jeu de mots en disant qu’il faudrait être bref !