So this afternoon’s session is devoted to the first theme: « Prosecution ». With your leave, I would like to introduce myself first because I am deeply moved and impressed by the quality of the participants and the persons involved. I may be the only person here to have known the beginning of the two international Tribunals: the ICTY and the ICTR. The context at the time was probably very different from the one you may have met. And, in fact, to go by the longevity of the various prosecutors, if one goes by that document up there, then the initial ones probably invested a lot because they stayed a short period of time. They must have been exhausted by the setting up of the process given that Mr. Goldstone spent two years, Mrs Arbour three years, Mrs Del Ponte four years and Mr Jallow six years. I don’t know if there is any relation between the time spent and the difficulties encountered but I could talk about this very challenging period establishing these jurisdictions.

As far as I am concerned, I am a French magistrate. For 15 years in Paris, I was an examining magistrate, and I was particularly in charge of crimes against humanity in relation to the events of the last war. When the International Criminal Tribunal for the former Yugoslavia was set up, the French Ministry of Justice asked me if I would like to take part in the proceedings of that Tribunal and I agreed spontaneously. That is how I started in 1994 in the Hague as a UN member with the first team of the ICTY under the aegis of Prosecutor Goldstone, because he was the first Prosecutor. The ICTR did not exist at the time, even on the drawing board. I am coming back to the creation of the ICTY because it somehow conditioned the difficult creation of the ICTR when it was set up.

So I was Deputy of the Prosecutor in charge of investigations for the former Yugoslavia Tribunal until July 1995. The Srebrenica events took place at that time. I supervised the initial investigation with the policeman, whom Madam Del Ponte knows very well, Mr. Jean René Ruez that I hired at the time. He headed the initial investigations and finally pursued this work.

Subsequently, when the Prosecutor realised that the ICTR was being set up, I was asked by the Prosecutor to go to Rwanda to undertake an initial assessment of the situation on the ground and report back to him on what could be done. The situation at the time took place at Kigali. The building in which the ICTR was housed was in a very bad state, and it was a former UNICEF’s office. So the material conditions were very difficult. Not only material conditions, financial and human conditions were also poor. These beginnings under the aegis of Mr. Goldstone made extremely difficult the physical and material setup of the two Tribunals because staff, investigators and judges had to be hired, and because a lot of work had to be done. So in such a context, it was very difficult to define a prosecution policy. It was something really difficult. You had to define a prosecution policy for the former Yugoslavia and for Rwanda.

Now, regarding the Rwanda Tribunal, it clearly suffered from some lack of interest, not intended but nevertheless obvious probably because of this lack of resources at the beginnings which actually hindered the initial proceedings and investigations. So at the time no one really had experience in international jurisdictions nor in the kind of crimes that such a Tribunal had to deal with: genocide, crimes against humanity, and severe violations against the international humanitarian right. For investigators used to give evidence or to prosecute ordinary law crimes, it was a complete new discovery. Moreover, the investigations, both for the former Yugoslavia and Rwanda, had initially to fit into a political, social and even ethnic and religious context. So all those dimensions had to be taken on board and there was no preparation, no training for that, and that compounded the difficulties in creating of those Tribunals.

As for the Tribunal for the former Yugoslavia, its creation was slightly faster, maybe because the resources were more important and granted more easily. Moreover, Mr. Goldstone made great efforts to obtain grants from the various States because there was a paucity of financial resources. And at the same time, as I was saying, we needed something to give to the Judges to work upon. They were expecting the first charges and, of course, the first accused persons to indict. Then, Germany gave us the famous Tadic, who was not a high ranking official and a disreputable fellow, but who allowed to jump start the procedure, and then to take a number of important decisions by that Tribunal based in The Hague.

However, even though it was important to start the proceedings, the arrest of Mr. Tadic was probably an initial error in the way the prosecution policy of the former Yugoslavia Tribunal was defined. Of course, we were targeting the high ranking officials in keeping with the statute that was drafted by the UN. So we had Tadic. Tadic, a lower ranking person, if we go by the statute. On the basis of that initial investigation policy we built a prosecution policy whose concept was to look at the participation or the involvement of the accused and then move progressively up to the summit. We told ourselves that, if the basis was solid, then we would be able to get to the high ranking officials.

It was not stupid, it was rational but it was utopian, because if we had continued in that way, then we would still be studying the basic elements. That was not the mission of the international Tribunal. So we realised that the method that we adopted was wrong. I remember well a meeting that took place one evening in Mr. Goldstone’s office where investigators and legal experts expressed their difficulties. It was the time where the policy was completely overhauled. So the Prosecutor instructed us to define objectives in keeping with the international criminal Tribunal, that is, to target the high ranking officials who were in charge of the crimes against humanity and of the genocide and then to give evidence of their involvement. That is taking the problem from the other end. I think it was in fact a good strategy. But as far as I concern, it is another story because I left the Tribunal at that moment. So you all know better than me how that Prosecution policy took place because I did not have the honour and the privilege to continue.

I am talking about this because that concept that underpinned the Prosecution policy of the international criminal Tribunal also influenced the Prosecution policy of the Rwanda Tribunal. When the Prosecutor asked me to undertake measures out there, we were emerging from our wrongheaded policy at the ICTY. And it was up to me at the time to define achievable objectives in Rwanda that corresponded to the Statute. It was not easy. The situation was extremely sensitive there. Resources were scarce, and it was difficult to define a clear, precise and coherent Prosecution policy at the time.

And here I get to our concern for this afternoon. What can be concluded from this initial challenging experience I talked about, even though it was a passionate one from the legal standpoint because it was a pioneering mission? It is the difficulty to define a Prosecution policy, because to carry out investigations means to define a prosecution policy. What does one want to do ? What is one’s objective ? And what means is one supposed to use ?

Now the objectives. The objectives in this case would refer to what any Prosecutor in any court in the world would have in mind. That is to identify the crimes, the perpetrators and to establish a link between the crimes and the perpetrators. It is also a method, because the identification of the crimes and the perpetrators is not enough. You need to define a method to obtain those results. As for crimes, I will not delve into the legal elements. We all know what the Statute provides: crimes against humanity, genocide, violations of international humanitarian law. We all know what they imply. Now the perpetrators. The perpetrators are the architects of the genocide, as stated in this document. (The booklet of the conference) Who are they ? Could we rely on the hierarchal level in the political, civil or military sector to designate these architects ? Do we need direct implication or involvement ? There is another scenario with respect to perpetrators. Even if one does not have a high ranking position, one could have easily committed a crime of great magnitude. So it is not said that there is a relation between the hierarchal level and the executors of the major crime. They can meet at some point, but they can also be different. Still in relation to the perpetrators. Not only do we need to identify them, but we also have to establish the link between those perpetrators and the crimes they have committed. So all of these elements are complex but they have to be taken on board by the Prosecutor when he is defining his Prosecution policy.

Now the method. First, the method requires cohesion or consistency between the investigators and the Prosecutors because they work hand in hand in implementing the statute of the international criminal Tribunal. So their duties are closely knit. The Prosecutor should give precise directives to the investigators, and the investigators need to bring out all the evidence they have found and see whether they may sustain convictions and indictments before the Judge. This method is something important to be set up. I realised both for the Hague and for Rwanda, at any rate at the initial stage, that we had to deal with policemen who had great professional experiences. I remember that I discussed with several of them. Their professional background was really quite fantastic. They all had impressive criminal stories to narrate that were proof of great experience and major professionalism.

All of that was good, but their major weakness, and which actually hamstrung us at the beginning, was the lack of preparation and training to the issue in its local context. This was very difficult. I remember that I was in Kigali and I saw a team of Dutch investigators arrive. They had been placed at our disposal by the Dutch government. They were about 20 extremely capable persons. But that is not the point. I don’t want to criticise my Dutch colleagues. But they were very tall, 1.9 metres, weighing about 90 kilograms. So when they came up on the Rwandan hills, witnesses were hard to find and we had trouble achieving any results. They were like people from Mars. All of that means that the lack of preparation actually raised a number of difficulties. They came with their laptops even if there were no electricity in the area. So we had trouble translating their reports.

There is one last point in relation to the method. A Prosecution policy in the case of an international criminal Tribunal should not be limited to the international jurisdiction. Maybe we will come back to this point by and by. It also depends on coordination and even cooperation with other States. Of course, there is Rwanda, but also other African States, European, American, or other states that could provide evidence or provide perpetrators of crimes. So it was part of the Prosecution strategy to include all of these factors.

Resources, that is the second element of a Prosecution policy. Of course, there are usual resources that should be there, like financial, human and material resources. Everybody knows at which point they are important. I will not raise this subject again. Legal resources are essential. The Statute and the Rules of Procedure and Evidence serve as the basis for the activities of the investigators and the Prosecutor. Under its core, there are no major difficulties. Nevertheless there is a major shortcoming, a major shortfall in legal resources, that is the absence of an international police. I believe all the Prosecutors have pointed out this fact. We noticed this point from the beginning. Without a police that was part of the international criminal Tribunal, we could count only on the States to execute rogatory letters and to arrest some individuals. The lack of capacity of having a police that could directly carry out the missions of the international Tribunal or the missions of the Prosecutor is a huge handicap. Of course, Interpol could partly address some of these difficulties, but not entirely.

Last point, and I read it within Madam Del Ponte’s notes, is related to the dependence of the Prosecutor. This is what I call moral resources. How to execute an independent Prosecution policy without being submitted to the dictates of some State or some international organisations, including the UN, without getting into the diplomatic considerations, negotiations for peace or eventual peace ? That is something we need to reflect upon while defining a totally independent and judicial prosecution policy, because only independence can make that policy sound. On that score, let me recount a personal experience I had at the Hague for the ICTY. At the start of the ICTY, there was the peace process. The peace process was a process that had been going on for some time and did not achieve anything. It was under the aegis of the Japanese born representative of the Secretary General, who clearly had major difficulties carrying on the process. And we were made to understand at the international criminal Tribunal that we should not start indictments too early or issue indictments because it could derail the peace process.

At that point, I still remember a discussion that we had with Prosecutor Goldstone where the issue was raised, and it was clearly stated that diplomats should be in charge of diplomacy and that Judges should be in charge of justice. Each person should do their job. Thus, whatever are the consequences of a Judge’s decision on diplomacy or on politics, that was not the business of the international criminal Tribunal. So it was up to the diplomats to salvage the situation depending on whatever judicial decision that may have been handed down. Besides, one is bound to observe that after we adopted that position and made it known, that the peace process actually gained peace and it led to the Accords of 1995. I don’t know if there is some immediate and direct link between the two, but that is what I personally believe.

So, under that context, it is not easy to define a Prosecution policy, which is our topic today. I was able to see, when I look at the proceedings of the International Criminal Tribunal for Rwanda and The Hague, that there have been different orientations. For instance, Madam Arbour’s theory was known as “the theory of understanding”, a policy sought to link indictments to high ranking personalities at the time of the genocide. Later on, maybe with Madam Del Ponte, the idea was to undertake special investigations to lead to the discovery of special facts of the RPF and APR. So there were other possible orientations of Prosecution policy. So what was the outcome of these new orientations ? What other strategy could have been chosen when they were adopted ? Those are some of the issues that we have to address this afternoon. This is what I wanted to express as opening remarks.

A last point that may be part of our discussion. A Prosecution policy of an international criminal Tribunal does not stop immediately. There is an aftermath. For instance, when the ICTR closes down, I don’t know when precisely, maybe you know more, but the close down does not settle everything. So a consistent, sound, comprehensive Prosecution policy can only be done in collaboration and cooperation with persons who would go back to their countries and take on their own particular method of administering justice.

So those were the few opening remarks I wanted to make this afternoon. On this subject, some of you have made proposals to intervene on one or two issues already raised or not, because I cannot claim to have touched on all Prosecution issues. There may be many others, but we need to start the discussion. So I propose that Mr. Stewart, for instance, who has addressed a number of questions in his form take the floor.