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contribution 14 - DEL PONTE Carla

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The plane - Politics & Justice - RPF prosecution - Whom to prosecute?


transtlated version

I would like to take the floor with your leave, and I will begin with the questions and then I will end with the Prosecution policy.

We’ve heard a number of arguments, and they are all good. You know, the first thing you have to do as a Prosecutor is to establish the facts before you start working. So you need to know how things happened, how the unlawful acts and crimes are committed, establishing the facts. So the first persons you need to have are analysts with whom you discuss the facts. That is a whole lot of work before you undertake or conduct an investigation, understanding the facts.

So you are saying that ^Tadic was an error, but I don’t think so, because it establishes the facts that are acknowledged by a court of law that were used in other courts as facts of public knowledge. They don’t need to be established again. So that was a choice of the Prosecutor at the time, to start with a mid level case, but to establish known facts before the Court and, above all, to establish legal facts.

You know, the Tadic judgement is still cited today in judgements so it brought in some certain and established elements in law, and admittedly it may have been better to start with high level cases, but failure to get those, you still had to come out with an indictment and you need evidence. So the Tadic case was a simple case because he was a mid level perpetrator. It helped us to have the first judgement, and it enabled us to start with the trial in two years, over two years’ period.

Against whom do we open an investigation? So we say, well, that falls with the discretion of the Prosecutor. So the Prosecutor must be aware of the facts, must be aware of the potential perpetrators. But the third essential element is, what is the evidence. As it is often said, the ^prior indicia of guilt and that becomes technical. It has nothing to do with political issues. It becomes a technicality.

So, in regard of the facts, giving all the circumstances of the fact, including the office of the perpetrator, what is the evidence against X? And that is the basis for opening an investigation against a given person. So we have to look at this with much more reality. It doesn’t mean the Prosecutor is just sitting around a desk and saying this morning we are going to open an investigation against X or political or military authorities. Who is it, this minister? Let’s start the case. No, this is a technical job. You work with your aides to establish the facts, the concrete indicia of guilt before you commence the case. And when adequate evidence is collected, then you would open an indictment which will live up to the highest scrutiny.

And obviously the Prosecutor has to work in full independence. International justice, international prosecutors have a lot of difficulty working in an independent manner. And I’m speaking in the case where an indictment is available, that is, in the case when the investigation is in full sway where you do not have the criminal investigation department. You need the support of the state, the support of the international community to obtain the means to conduct the investigation, and secondly to secure the arrest of the indictees and that is where politics come into play in your work that is where you have to make sure that politics does not interfere with your work. But it is inevitable because politicians, governments have other interests, hence the issue justice and peace, because the politicians are at peace with themselves in their minds because they need to make peace in an area where there is conflict. So without the political support, there is need for peace. And where they believe that justice is an impediment to peace, they will stall justice. It doesn’t mean they don’t want justice. Everybody wants justice, international justice for that matter. But politics has other issues. It’s a balancing act. You know, there’s always something. And that is where the independence of the Prosecutor is absolutely required. That is, once the indictment has been prepared and is confirmed, the process should continue. So peace and justice would always be a tandem in debate.

But I agree with you, Mr. Chairperson, as far as we are concerned, we are dealing with justice. The mandate of the Security Council is justice. In the mandate of the Security Council it is not clearly stated. As a matter of fact, the mandate is very clear, but it doesn’t state clearly who has to make that justice. But our indictments were not only based on genocide, there were crimes against humanity, and there were war crimes these were classified differently and to the best of my knowledge we did not only indict for genocide.

Then coming to special investigations, let’s call it that way. Why did we call them special investigations? Because they happened on the other side. And I’m revisiting the issue of serious and concrete indicia to the fact that crimes were also committed by other parties. Let’s put it that way. Obviously, an investigation is opened and clearly we have to determine that crimes were indeed committed. Obviously, you cannot do anything without the consent of the government of Rwanda because you cannot conduct investigations in the territory of Rwanda without the consent of the government of Rwanda, even for witnesses. And for every other aspect justice cannot be delivered if the government of Rwanda decides to stall the process.

So the first step is to discuss with the government of Rwanda, to talk to President Kagame, and obviously he told us, "Yes, go ahead, go ahead." But nobody cooperated because it was the military prosecutor who had to collaborate with us, but he chose not to collaborate with us. And although the president said yes, initially there was no cooperation. I went a second time. He said, no, you should not conduct those investigations. It’s not your call. Investigate the genocide and do not investigate the RPF. Whatever it was called. And he said no. We have done this. We have done it partially. We did what we have done. You should, rather, investigate the French who are guilty or responsible for the genocide. We made our attempt. We had to pull out the investigators from Kigali because it wasn’t necessary to pursue that track. And then there were discussions which we had in Washington. But that was politics. You know, Pierre Prosper was trying to find a solution somewhat, isn’t it? And he’s a politician. He says can Rwanda investigate? We said no. Rwanda will not conduct these investigations. But they were trying to find a solution, you know. And a solution, you know, because they needed a solution, while we the only possible solution was to conduct those investigations.

And it goes without saying that it is very easy, when I wasn’t re elected as Prosecutor for the ICTR, then everybody said yes it is because we opened special investigations. It means politically President Kagame succeeded in having that change. But, come on, we succeeded somewhat. With Prosper we succeeded in including in the resolution appointing the new Prosecutor to ensure that the special investigation had to be conducted. And that is what we were able to salvage, to ensure that those investigations had to be conducted.
And I will leave the rest to my colleague to give further explanation.

Habyarimana, investigation, that famous plane. President Habyarimana, none of that. There was a president, my colleague ^Louise Arbour, had decided that the Office of the Prosecutor in Rwanda did not have the jurisdiction to open the investigation. So we had additional material. It wasn’t really compelling, but it was a plus, especially in consideration of the fact that we were ready to open an investigation, but Judge Bruguière in Paris had formally opened an investigation on that plane crash. And then I told myself, you know, I told myself, I will always need the government of Rwanda and we had had quite some problems, because once they were discontented they blocked the witnesses and witnesses would stop coming, and I remember for some weeks running we were unable to run our trials because the government of Rwanda had decided that witnesses would not travel to Arusha. And to me, the fact that Judge Bruguière had opened an investigation ^argued well because I agreed with Bruguière. You conduct the investigation, and once the investigation is done we will determine the jurisdiction, because if the jurisdiction lies with the court in Rwanda, we will continue from there.

And I remember vividly in 2004 we had met in July, he had conducted the full investigation, and he told me, "This is for you," because hitherto he had encountered his own political problem because a new law had been enacted to the effect that the president enjoyed immunity, and he was unable to continue. And he said, "This is an investigation for you, with all the material for your jurisdiction."

So in September we went to the Secretary General of the UN to inform him about that move. I was unable to do it because I wasn’t, you know, re elected as Prosecutor for the ICTR. The investigation office in Kigali, it wasn’t our decision. It was New York that made that decision that the seat of the Tribunal would be in Arusha, and the office of the investigation would be in Kigali. So that much I have to say for now, and I would come back if it is necessary.