home > SESSION 5 > 02

contribution 02 - JALLOW Hassan Bubacar

français english


Kabgayi case - Disclosure of evidence - The plane - Accused at large - Guilty plea - RPF prosecution - Whom to prosecute? - Completion strategy

Hassan Bubacar JALLOW

original version

Thank you very much, Mr. Chairman. Good morning to all the participants. We are certainly pleased to be here to brief you on what we have been doing and to hear from you, where you think we may have done well, where you think we should be going.

The 2nd Session, of course, the day before yesterday, raised a lot of issues for the Office of the Prosecutor. Some of the issues listed in the agenda were not, I believe, quite dealt with sufficiently. I will try to give my responses to some of the questions and the comments raised, and also my views on some of the agenda items for the session of the first day.

But, in doing so, I would like you to understand that I will be operating, of course, under certain constraints. If you don’t have any answers to some of the questions or you don’t have full answers to some of the questions, you have to understand that there is a certain constraint within competency places on one’s answers. Secondly, also, it’s not the kind of forum where naturally one would want to discuss or in any detail the ongoing work or our position on specific cases. So those are our constraints which we have to appreciate in dealing with the various agenda items.

We are operating now under a completion strategy and it’s a strategy which was adopted, as we all know, in 2003 by Resolution 1503 of the Security Council. You know that resolution really made the Tribunal sit back and rethink its strategies. All organs of the Tribunal had to carry out reviews of strategies : The Office of the Prosecutor, the Registry and Chambers themselves. And on our part, this meant, for instance in the Office the Prosecutor, we had to review our strategy in respect of selection of targets.

The members of Security Council told us that we have to finish our investigations by 2004 and finish the trials in 2008. The first issue which arose after the adoption of Resolution 1503 when I appeared with the Security Council was that members wanted to know how many more cases can you do within that time frame ? So we got back to Arusha, we realised that in order to answer that question, we must first develop a certain criteria. What are the criteria you’re going to use to ultimately decide what are the cases that you would want to do and you think you can handle within that time frame imposed by Resolution 1503 ?

So our first attention in early 2004 was the development, articulation and agreement on the criteria for selection of cases which we thought we would be able to take on and finish within the time frame, the earlier time frame. Before that, of course, as Professor Guichaoua said, we had quite an expansive list. There were hundreds of people on the list. It was clear we could not and we cannot still conclude the prosecution of all those cases. In a nutshell, what we agreed upon within the OTP then, and these are the criteria which we still use in relation to the target selection for investigation, was that we will be guided essentially by four considerations.

The first consideration was the status of the offender, which meant people who had high level positions within government or other establishments, would come into the list even with the smallest amount of evidence that was at our disposal. So the status of the offender was our primary criterion for deciding on the target that we would select for prosecution. We realised, of course, that there were other personalities outside the government structure who may have participated extensively and very notoriously in the events of 1994.

So our second criterion we agreed on was that the nature and the extent of the participation of the individual are also relevant. And so as a result you find then in the final target list a number of, let’s call them, civilians, people who weren’t in government officials or military officials but whose participation, whose involvement in the genocide was very notorious. I don’t want to mention names at all here. But if you look through our list, you will find that category of people.

We were also very aware of the fact that there had been reports of widespread sexual violence as part of the genocide in 1994. So the third criterion we agreed upon was the nature of the offence would matter and we should look at the kind of offence that these suspects had committed, which immediately led us consciously to try to include in the list people in respect of which there are allegations of significant evidence of commission of sexual violence. Our record of prosecution in this respect has not been as good as we would have wished given the reports of the widespread nature of sexual violence. According to the reports, at least a quarter of a million females had been violated in 1994 within those 100 days in Rwanda.

The issue of national reconciliation also figured as the final criteria. In what way in our selection of targets could we contribute to national reconciliation in Rwanda ? And we were particularly concerned that in selecting targets, given that the reports indicated that this was a widespread, that the genocide had been widespread nationwide, we were conscious that we should not leave out any district or any geographic area of Rwanda in the selection of targets. Sometimes this meant that you had to do a trade off, you dropped off a couple of targets from one region where you thought there had been too many targets in order to be able to draw in a target from another under represented or unrepresented area of Rwanda.

So these are the criteria. We’ve decided on these criteria, and we have made them public. We made them public. Based on these criteria, we were then able to finally decide on the target list on the cases that we thought we could take on and finish by 2008. Of course, that goalpost has now been shifted, as you are aware.

Now, having decided on the targets, the other issue, of course, was what were the strategies that we needed in order to be able to accomplish this workload. So that the next phase of the OTP in 2004 was to concentrate on that process as well. We had what we call the strategy review workshop in sometime late 2004. It was there that, among other things, we consciously again decided to shift from multiple‑accused to single‑accused cases because we felt that the multiple‑accused cases were taking too long to try and finish and that going by way of single‑accused cases would offer us an opportunity to finish the trials in a relatively short period. We were, of course, aware also of the fact that sometimes you can’t avoid a multiple‑accused case, especially where the witnesses are the same and the evidence is the same. There is no point. In fact, it could be counterproductive to separate the accused and have individual trials.

But that was the point at which we have shifted. Since 2004 we have not done any, we have not filed any new multiple‑accused indictments. We have gone the single‑accused way. And in a way I guess it has speared off. We have finished between 2005 and now 20 single‑accused cases. They have been brought to conclusion, to judgement. This is quite a significant achievement, I think.

The review also has led to a shift in the preparation of indictments, of the indictments themselves, in terms of reducing the number of offences, reducing the number of counts. Trying to make what we then called the Tribunal looking lean and mean, to have the mean and lean indictments, make them shorter rather than longer with fewer indictments. We committed ourselves also to reducing the number of witnesses. There were a quite number of witnesses used in the cases, but we thought it was time we focused on having as few witnesses as possible or as necessary in order to establish our trials.

Guilty pleas were another strategy we emphasised. Yesterday we had a lot about the Kambanda case. Whatever may have happened in Kambanda, of course the reality is that it did impact on the OTP from 2003 onwards. Whenever we tried to negotiate a guilty plea, we discovered from 2003, 2004, et cetera, we were always faced with a retort from the Defence and from the Accused that « We can’t take your word for it. I don’t want to be another Kambanda. » The reality is that it did impact on us adversely in that sense. It really made it very difficult to secure guilty pleas.

But gradually I believe we have overcome that obstacle too, and we have been able to demonstrate to the Defence that we do keep our word at the OTP even if the final decision rests with the judges, but whatever we negotiate, that is what we present to the Trial Chamber. They too understand that the final word is with the Judges. Maître Roux has been a very efficient and effective collaborator in this respect while safeguarding the interests of his client, naturally. We have concluded quite a number of plea agreements with him. As a matter of fact, I believe we now have eight, a total of eight plea agreements under the belt. Five of them having been concluded between 2004 and now. So Kambanda was instructive, but it’s history, hopefully. We drew lessons from it too, lessons of openness and transparency with the Defence when we are conducting negotiations.

The guilty pleas, of course, pose another different challenge for the OTP. When we negotiate the plea, the negotiation inevitably means giving up something, the Prosecutor giving up something. Nobody wants to plead guilty now to genocide, and we discover nobody also wants to plead to rape. They probably would be more ready to plead to genocide than to rape. That is one fact that we have discovered. So in the process of drawing up a guilty plea, the Prosecutor has to give up something. He gives up allegations of certain facts. He gives up certain counts in order to reach an agreement. Sometimes this may not go down well with victims or survivors who think that their case is being compromised, that their claims, their suffering are not being recognised. But it is a choice that has to be made. If we want a guilty plea, you can’t have a guilty plea on the basis of an admission of all the counts and all the allegations that are made in the indictment. That has been one of the difficulties we faced in the negotiations.

Well, let’s turning now to the issue of the extent with which the OTP keeps its word. I think Mr. Ngarambe did raise the issue of Serugendo yesterday. At the break I did take the opportunity to explain to him how this matter has progressed. Serugendo was an accused who pleaded guilty. As a result of that and other matters, we undertook certain responsibilities with regard to his family. Those have been fully complied with by the Office of the Prosecutor. We have moved his family from where they used to be, and we have secured the agreement of another state to take them in. We have been fully taking care of them in all respects since the Accused pleaded guilty, the Accused who passed away.There are certain matters, of course, which are not within our control. As you know, most of the things we do we rely on the cooperation and assistance of States. If we wish to relocate people, we must secure the consent of a particular government. We cannot impose our will on the governments. We have to try and convince them, and this is not easy sometimes. But in this particular instance, we have succeeded, and there will be a relocation to another place.

So there is the review of the strategy. There is the review of the target selection. We’ve also turned to our own internal processes within the OTP and reviewed them and put in place measures and mechanisms and procedures which we felt were needed in order to enable us to deliver the completion strategy. We have what we call indictment review process in place, trial review process in place.

We’ve also tried to deal with the issue of the separation between the investigators and the trial people. This was raised yesterday and the day before. The investigations division is in Kigali, and the trial division is in Arusha. Well, of course the investigators have to work with will trial people. This has been one of the challenges we faced and continue to face. Ideally, a trial team has to be with its investigators. The investigator has to be embedded and be part of the trial team. But this physical separation between the two divisions doesn’t facilitate that at all. And the compromise we have had to do is to move over some of the investigators from Kigali, particularly those who are assisting the multiple‑accused trials, to shift them from Kigali into Arusha and have them embedded within these big trial teams so that the trial attorneys have the investigators at their disposal constantly. It’s not possible to do that in respect of the single‑accused cases, or you will end up having to move everybody from Kigali into Arusha. That would create other difficulties because the scene of the crime is in Rwanda and you need investigative capacity within that place itself. So the compromise is to move part of the investigations division into Arusha in order to assist, particularly the multiple‑accused trials.

Disclosure of course has been a major challenge. It’s been raised here by Defence counsels. We have obligations to disclose relevant and exculpatory evidence. And we try as much as we can to make sure that we live up to this obligation. There is no deliberate withholding of information which ought to be disclosed to the Defence. Our policy is to be as liberal as we can. Whatever is relevant we try to disclose. But, of course, as Dior Fall indicated yesterday, the first assessment has to be made by the Prosecutor. Is this relevant, or is it exculpatory? Our opinion may be different from the Defence. It may be different from the Judges’ opinions. And where we don’t disclose, it may simply be that maybe there is an error of judgement as to what in our view is relevant or what in our view is exculpatory. So we don’t deliberately withhold what we believe is relevant and exculpatory. If we do reach the conclusion that it is relevant or exculpatory, our policy is to make sure that it is released. Sometimes, of course, things do fall through the cracks. They do fall through the cracks.

If you have a single situation giving rise to several cases, you really have a challenge of sharing information even between trial teams within the OTP. Almost everything in one case becomes of interest or relevance to the other trial teams. You have to have in place, therefore, systems to ensure that the trial teams do share the information, and what is in possession of one team exists in the knowledge of the other teams. Sometimes when they’re deficient in that respect, it leads to lapses in our disclosure, but this is not deliberate either.

We have put in place the EDS, the Electronic Disclosure Sheet. And our intention was to devise it in such a way that everything that we have, all the material we have, is electronically available to the Defense. The system, of course, has been criticised by the Court of Appeal in terms of its architecture, and we have been trying to restructure it in order to ensure that it complies with the requirements led by the Appeals Chamber. We should not simply just dump a mass of evidence into the EDS but it should be properly organised, catalogued, so that people do know what to look for and where. And that’s an ongoing process as well.

In the agenda, there was a reference to staffing issues also, the agenda for the first day of the meeting. In that respect, the requirements of the completion strategy has also shifted our recruitment policies within the OTP. I think in the early years when international criminal law as such was fairly new, you really needed people who were strong, who knew the principles of international criminal law. This was at the investigative phase. Trials had not yet started. But with the trials starting and with the development of the jurisprudence, its clarification, its articulation by the Judges, it became less and less important to place an emphasis on recruiting attorneys who hold post‑graduate degrees, for instance, in international criminal law. What you needed now were people who could go into the courtroom and present a case, present the evidence, make the arguments. You needed trial attorneys. You needed people with advocacy skills, and that has been the emphasis in the past few years. The law is there, we presume, to be read by all and sundry and to be understood. But the skills take time to develop. And if you have people who already have advocacy skills, you try to bring them in, and they brush up on the law, but there are people who cannot stand in a courtroom and face Aïcha Conde and the rest of the Defence counsel. So we have had that shift in recruitment, and it’s been helpful also.

These are some of the strategy changes which have taken place as a result of the completion strategy. They are not in isolation within the Registry, within the Chambers. They have all adopted measures as well for expediting the trials, for making sure that we are in a better position to attain completion strategy objectives.

Now, regarding the issue which almost dominated the discussions on the first day, that is, the allegations against the RPF, a number of questions had been raised and comments made. As I said at the beginning, I will try to assist with the subject to the constraints with incumbency and the need for the requirements for ongoing work that they dictate.

I think that we have to be clear on one thing. The OTP has never taken the position that it does not regard the investigation or the prosecution of these allegations as falling outside its mandate. It’s always been recognised by the OTP through successive Prosecutors. And I have seized the opportunity within the Security Council to reiterate in several meetings that we do recognise this obligation and we intend to discharge it and we’ve been taking steps to help us discharge that obligation.

The impression that there has been delaying tactics or nothing has been done is also not accurate. Obviously this is a very difficult area to deal with, but a lot of work, investigatory work has gone in, has taken place, over the years. And the Rwandan government is totally aware and is in the picture as to what is going on. Since the termination of the suspension of their cooperation during my predecessor’s time, the investigations have resumed and several matters have been looked at, and they are perfectly aware of that.

But like all the cases we do, whatever we decide has to be based on the evidence that is available. We have to try and make sure information that is available is really converted into evidence that can be of use in court, evidence which gives us a reasonable chance of convincing a Court on whatever it is that we are proposing. That is the basis on which we have to proceed and no other considerations. And we have to proceed also having due regard and respect for the independence of the Office of the Prosecutor. It is not important just for the state, not just for Rwanda. It’s independence in relation to states, to organisations, to individuals. We can’t accept any attempts to improperly influence the position of the Office of the Prosecutor in this respect.

A lot of work has been undertaken. Two specific issues which were raised, the investigation of the shooting down of the aircraft and also the Kabgayi case. I believe I have made my position clear in respect of both these events.

All the Prosecutors I believe have taken a similar position with regard to the shooting down of the aircraft. This is that it is not a matter which falls within the mandate of the ICTR. We are mandated to prosecute on the three specific offences: Genocide, war crimes and crimes against humanity. And that particular incident does not fall or fit within any of those three offences.

So there is a jurisdictional issue, but the position has been common amongst all the Prosecutors. But beyond that legal question, I think it’s important also to recognise that there are even evidentiary difficulties. There is an assumption on the part of some, for instance, that the aircraft was shot down by RPF people. There are statements supporting that proposition. There is also a position, an evidentiary position, suggesting that it may have been shot down by members of the FAR, the army then in place, or exterior elements within the FAR. There are statements also which even go further to suggest external involvement in that particular incident. So it’s not a cut‑and‑dry issue as if there is a clear case against a particular group that they are responsible for the shooting down of that particular aircraft. But the evidentiary problem apart, our position, as I said, has been that it really does not just fall within the mandate of the ICTR, whatever the evidence may portray.

The second incident related to the Prosecution which has recently been concluded in Rwanda in respect of the Kabgayi incident when a number of clergy were killed by RPF soldiers. This is a case we clearly investigated, and the Rwandans too did investigate it. We felt we had a case against a number of people, that is, four people. In a nutshell, the evidence showed that four soldiers had actually opened fire on these victims in the course of a meeting and in the presence of other senior military officers. In a nutshell, that was the case. And we thought there was a case against, obviously, the people who pulled the trigger and against the senior officers who were present in terms of their command responsibility, et cetera.

The Rwandans wanted to be given the opportunity to prosecute the case, and I did agree with that position. Essentially, on the basis that if the Rwandan government can be made to indict and prosecute and effectively and fairly prosecute people who are seen to be as part of its establishment, it has the potential to make a bigger contribution to national reconciliation if the cases can be dealt with effectively at that level. The trial has been finished as you are aware, and the appeal has been concluded. We did not provide Rwanda with any evidence from the OTP. The evidence that they led was generated by themselves, but it’s consistent with what we have and with the position that we had taken.

The indictment that they were prosecuted on was cleared with the OTP at the ICTR and approved by the Prosecutor. And it was not an indictment for offences only under national law. They were specifically charged with violations of not only Rwandan law, but of the Geneva Conventions, two of them for murder, the senior officers for complicity for murder and also in respect of command responsibility, both under the Geneva Conventions. So it’s clear that it was not just treated as a local prosecution.

The trial was open. I know Professor Reyntjens has raised a lot of issues and relied extensively on the letter from the Human Rights Watch regarding this particular case. I have responded to that letter. I don’t know whether you are aware of that. I have responded to the letter from Human Rights Watch, and it deals with all the issues you have raised. But in a nutshell, clearly the trial that was opened and was monitored by the OTP. I had two monitors in place, a senior trial attorney and a senior legal adviser. From the reports I have, they attended every day of the trial. They attended every day of the trial. They looked into the documents, et cetera.

At the end of the day, I was able to give an assessment to the United Nations Security Council on June 4th that, in my view, and based on the reports of the monitors, the trial had been open, public, free and fair. And there is no reason for the Tribunal to exercise its primacy in respect of that case. For the various reasons I have stated, the indictment was not just for local crimes. The trial was open, and I have not had any indications so far from any other monitors of anything improper having taken place in the process itself.

We should not simply say because people have been acquitted, the trial wasn’t fair. I mean, a fair trial clearly has the potential for acquittals and for convictions. So it’s not really the outcome which is the critical factor. It’s the process. And the process which has taken place is that the judges were of the view that the senior officers could not be held responsible for two reasons : That one of them actually led evidence to demonstrate that soon after the incident, he had been arrested and kept in detention for an extensive period. So the question was : Was he then in a position to have punished his subordinate officers ? The answer is no. Purely on a factual basis, he couldn’t have done that. He was in a position, for instance, to have presented. And the judges, in their own assessment of the evidence, said no. It was unreasonable to state that the senior officers should have expected such an incident to occur and so taking next steps to prevent its occurrence. But there it is. The case has ended, and I have given my assessment to the Security Council. And also I have indicated to the Security Council on June 4th that at the moment, although work is ongoing, I do not have a case which is ready for indictment in respect of that category of cases. So that’s where we are with regard to this particular issue.

It’s not that the OTP is reluctant to do its work, but its work has to be based on acceptable evidence presented by credible witnesses which offers us a reasonable chance of success. And we also then have to take into account other factors, issues of reconciliation, the fact that, as Guichaoua says, there is actually a lot of work which we ought to do also on the major crime base which we are still unable to do. We have had our target lists pruned to lest than a hundred people, and the result is there are hundreds of genocidaires. There is a reasonable case actually walking around who neither we nor national jurisdictions are prosecuting. That is clearly not a good situation.

Turning away from the RPF, there were a couple of other things also which were raised. There was, for instance, the matter of sentencing which attracted some considerable attention yesterday. And I was surprised that people think that ICTR sentences have been too harsh. We at the OTP have taken the view that in many of these cases the sentences have been too lenient. There are a number of appeals pending in the Appeals Chamber against sentence. And primarily what we are saying is we can’t understand how anybody convicted of genocide can get anything less than a life sentence. Is there anything that can mitigate a conviction for genocide when they are found guilty of killing thousands of people? So we have a number of appeals. No mitigation. I am not arguing my case now before the Judges. But, some have taken the view that it’s too harsh. We have taken the position that it’s a little bit too lenient in some instances. There are a number of appeals now pending. I have just had to sign one appeal before I left Arusha in respect of the latest judgement. It’s an appeal against sentence as well.

Moving from sentences, looking ahead now, what are some of the challenges we face at the ICTR. Clearly we still have our 13 fugitives there at large. Ideally we can’t close and have a residual mechanism also going for two years and close with these people neither arrested nor tried. It takes us back to the question which I think Silvana raised. Should we look at the possibility of trial in absentia in relation to these fugitives, or should we look at other measures in order to ensure, for instance, that the evidence against them is preserved in such a way that at any time they are caught they can be effectively brought to trial ?

That issue is raised by the fact that the evidence that is led in these Tribunals is basically oral. It is not documentary. With time we have discovered, for instance at the OTP, that even with these last round of cases, many of these Prosecution witnesses become unavailable due to legitimate reasons ‑‑ death, illness, relocation, or sometimes just a reluctance to cooperate. What do you do with these top‑level fugitives if they are caught five years down the line and we bring them up for trial and you can’t find your witnesses ? I mean, the ends of justice would be defeated if we don’t look for ways, for instance, of preserving the evidence or dealing with their cases now through a trial in absentia and then shifting the burden to them to seek a review upon arrest.

It’s not just the fugitives which trouble us. I have already made reference to the fact that because we have pruned down our list of targets and because Rwanda has so far been unable to obtain extradition from various countries with one exception, Sweden has recently granted an extradition. As a result of this, there are hundreds of genocidaires walking around. In the U.K., for instance, four of the suspects could not be extradited. If the courts have decided that there is a prima facie case against them, what do you do with cases like that ? How can we ensure that these people are brought to account? How can we ensure that member states live up to their responsibility to prosecute or to extradite people who are suspected of committing these offences ? We have to do that, or else we will have a very serious gap in the struggle against impunity. The Tribunal will close without prosecuting some of these people. If they are not extradited to Rwanda, the jurisdiction in which they reside won’t exercise any jurisdictional competence to prosecute. You end up with a serious gap which could seriously undermine, I believe, a lot of work which has gone on before.

One more thing, looking at the future of course, relates to the post‑closure challenges which may arise. I think somebody alluded to that. It seems when the Tribunals were established, even though they were called ad hoc, really not much attention was paid to the fact that at sometime they have to close. So what would be the implications of closure ? It’s not usual to close a court. A court seems to be a continuous, permanent feature, a state structure. It’s like closing down a state. I mean, what are the consequences of closing down a state ?

If you close down a court which has sentenced people to life or to other terms of imprisonment, it raises a number of issues. What jurisdiction would they have recourse in order to deal with matters that concern them ? What do we do with our archives? The Registrar spoke about that yesterday. What do we do with our archives in terms of location, in terms of access, in terms of management ? Much of the material is confidential. Who should have access, and on what basis ? Much of it may have an impact on the protection of witnesses, et cetera.

The closure, the impending closure, has thrown a host of issues. But fortunately, we have worked together with the ICTY and submitted a set of proposals to the Security Council for them to decide on what measures to take in order to deal with these post‑closure issues. The council has not yet taken a decision. But in a nutshell, for instance, one of the ideas is that because of the recognition that judicial power may still need to be in place even after the closure of the Tribunal, that it would be helpful to maintain a roster system of Judges, Prosecutors and Defence Counsel. So that anytime, for instance, an accused person wishes to exercise his right to review, which can take place ten years from now, then a panel of Judges can be put together to deal with the application for review. Or when issues of pardon or commutation of sentence arise after we have closed, they need to be dealt with by the President of a non‑existing Tribunal. There are mechanisms which have been recommended and which are before the Security Council to ensure that there is a solution to these practical issues.

There is a problem of maintaining, for instance, people who have been relocated or people who have ‑‑ I mean, accused persons who have been convicted and have finished serving their sentences after our closure. The ones who finished now are giving us enough of a problem, let alone those who finish when the Tribunal is no longer around. How is that going to be dealt with ? Again, some suggestions have been made, and they are before the Security Council. And we hope within a short period the council would be able to decide and put in place these measures so that we can really have a proper closure of the Tribunals.

I think these are some of the issues which arose and some of the issues which I wanted to highlight for the attention of the meeting. I thank you very much for your attention.