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contribution 17 - JALLOW Hassan Bubacar

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Kabgayi case - The plane - Completion strategy - Transferts

Hassan Bubacar JALLOW

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Thank you, Mr. Chairman. Responses to a couple of issues, starting the completion strategy. I think there are a couple of lessons we can draw from the way the completion strategy has operated. One of them obviously is that it may have come too late in the day. Yesterday in the discussions we stressed the need, when there is an intervention in a particular situation, for a determination of what one’s objectives are, what are you trying to accomplish, within what time frame do you want to do that. So in that sense, I can see the need for a completion strategy as and when one enters a particular situation and not to leave it until several years down the line.

Of course, this is no longer a lesson for us, but I think it is still pertinent for the ICC. The ICC is a permanent court, but it deals with various situations. And when it enters a particular situation, in the Congo, in Central African Republic, et cetera, it needs to determine precisely what are its objectives, what are the objectives it wants to accomplish, within what time frame and when is it going to pull out because it can’t be forever dealing with a particular situation. I think that that lesson is pertinent.

The other thing relating to the completion strategy, of course, is we’ve had to be revising it periodically, shifting the dates, going to the Security Council to shift the dates. As has been mentioned, the initiative really came from the Tribunals themselves. The initial dates came from the Tribunals themselves. The second lesson we need to draw from this is that in assessing one’s objectives or the time frames for accomplishing it, I think we need to be quite thorough. We need to be quite thorough and objective. We’ve gone to the Security Council already twice and asked for a shifting of the dates. This can lead to kind of fatigue on the part of member states, and they begin to harbour all kinds of views that there may be just a wish to extend the time lines continuously. So it is important therefore that when you do a completion strategy, when you try to fix the dates, you try to be as objective as possible and not to be perhaps too optimistic sometimes, and to be very frank. If you need five years to finish the job, it’s five years. If you need ten years to finish the job, you say so.

With regard to the issue of the transfers, there was a question raised as to whether it’s still on your programme. Yes, it’s still on our programme. The transfer of cases to Rwanda or to any other jurisdiction is very crucial to the completion strategy. So far we’ve only managed to transfer two cases to France. There is only one other European jurisdiction which is interested in a referral. There is no other African country which is interested, apart from Rwanda.

The legal obstacles with the transfer, as identified by the Appeals Chamber, essentially resolves around three issues. There was the concern of the Appeals Chamber that the location of the witness protection programme in Rwanda within the office of the prosecutor general might make it difficult for Defence witnesses to access it and to use it for their own protection. And so there would be a difficulty there for protecting Defence witnesses. There was also a concern that Defence witnesses may be unwilling to travel to Rwanda to testify because of certain fears. And then, thirdly, there was a concern of the possibility that such persons, if transferred, prosecuted and convicted might be subjected to imprisonment in isolation under the Rwandan law.

Recently, Rwanda has made certain legislative changes to address all these three particular issues, and we are satisfied that on the legal side, on the legal front, they do address the concerns raised by the Judges. But there is still an issue of capacity, of course, remaining which needs to be addressed. The new witness protection programme that Rwanda proposes to put in place has yet to be established. It needs to be established and made operational. And this is one of the conditions that we say must be satisfied before we make any fresh requests to the Judges for transfer of cases to that jurisdiction. There is a lot of interest from various member states to assist Rwanda in this particular respect. And we expect that by the third quarter or towards the end of the year we might see a witness protection programme in place in Rwanda being run by the Rwandan judiciary, rather than by the prosecutor general, and being run with technical assistance. That’s a possibility. And if that does happen, then it opens the doors of the Prosecutor to make a fresh request for transfers to Rwanda by the end of the year.

On the aircraft incident, I’m not sure my colleague and I can settle that issue here. He has raised a number of concerns about the opinions which have been adopted by various Prosecutors. If we could be of help to you, you could address me your concerns and we will send you a detailed response as to how we arrived at the conclusion that this matter does not fall within the mandate of the Tribunal. But I don’t think we can resolve that here.

It is not, however, fair to say that our special investigations unit has only done “deux ou trois petites missions”. I think that is quite an understatement. They have done a lot of work. As you rightly say, of course, the work of the unit had been suspended for several years. And when I came in 2003, there was no work going on. And it was only in 2004 that the work on this particular issue resumed. But there is a unit which has been quite active.

The issue of jurisdiction, well, we don’t have jurisdiction over corporate bodies. I mean, this is in response to Mrs Mukeshimana. Our mandate is to prosecute individuals, individual persons who may have committed these serious offences. So, as a result, we have really not carried out any investigations into the involvement of other corporate bodies or of member states or of other persons who fall without our jurisdiction.

Finally, on the FPR side, of course, we are willing to collaborate, as we do on all matters that fall within our jurisdiction, in the investigation and prosecution of cases, but we’d like to do so in a very honest and transparent manner. I am really surprised that I’m told we don’t have an investigation unit because there is no budget for it. There is a full budget for the investigations division. There are staff in place. I wonder how they would be in place if there is no budget. There is staff in Arusha. There are investigators in Kigali who don’t deal with this particular dossier. But those who deal with it are in Arusha. And there is obviously a budget. I mean, you can check that anywhere. It’s a public document. And you will see that there is a budget to fund the special unit as well as to fund all the investigators.

We have not received any evidence from Human Rights Watch concerning this particular incident. I do recall the discussions we held with some your people, and the only thing we received from you was your own perception of the evidence that is available, that has been gathered by us, your own interpretation of the evidence. And, of course, we are not bound by that interpretation, nor are the Judges bound by that interpretation. But so far we have not received any evidence from you.

In your letter of May 29th, I believe, you didn’t even give any details as to why you think the trial was improper, except to say that it was just a political whitewash. And I’ve written to you, to Human Rights Watch, asking for particulars and specifications as to why you think it’s a whitewash. I haven’t had such a response yet from your organisation. So I’m surprised at the elaborations you are giving here when you haven’t given us any evidence on this particular issue. All you have given us is your perception of the evidence, your own interpretation of the evidence, and it differs from the OTP interpretation, and we are not bound by your own interpretation.

It’s important, I think, that when we collaborate with persons and agencies we do so on a footing of honesty. It makes our work very difficult if collaborators are not straightforward or they promote agendas other than ours, which is to make sure that justice is done. Thank you very much.


Thank you. I have the permission, I think, of both the rapporteurs and Professor Chetail, to actually close this session now and actually move the academic reports into the academic session, which will come this afternoon. Maybe that will launch the academic discussions for this afternoon and we will have a more coherent debate.

So I am now going to close the session. And I’d like you to join me in thanking the Prosecutors for a very frank discussion.

(Suspension de la séance : 12 h05)

(Session recessed at 12.05 pm)