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contribution 01 - GARAPON Antoine

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ICTR assessment


transtlated version

As we address this afternoon’s session, I would like to thank the sponsors. I think this is an auspicious time at this stage of the colloquium because I believe that our meeting has something of unique, something which is peculiar. In France, I wish that in courts there would be a meeting between the prosecutors, the judges, the lawyers, witnesses, journalists, prisons, administration so that we can we can speak to each other and we can take stock of our collective performance. I believe that is the very purpose of our meeting in these choice moments.

I was saying that it appears that the deliberations of yesterday and today have demonstrated the treasure of the ICTR’s experience. We discussed prosecutions yesterday and talked about the strategy as to how to target and how to start proceedings and conduct trials. This morning we discussed the trials per se in terms of production of evidence and the manifestation of the truth, if I can speak in those terms.

This afternoon we will continue in the same line by discussing the issue of consistency, the consistency of the ICTR’s work and consistency with other courts which have dealt with the genocide of the Tutsi and to look at how through sentencing justice is administered fairly and that the facts are tried in equity and also providing answers to those questions.

We have a number of topics. In your programme, this session is devoted to judgement and sentencing. In your observations, there is a recurrent issue which relates to the plea of guilty or the plea bargain and its impact on sentencing. Then there is the issue of judgements.

Judgements are a reflection of the guilt of the offences of the evidence. That is their own way of narrating the genocide. But it also deals with sentencing. You have acquittals, you have convictions, as well as the detention conditions, if it is a preventative detention, or the quantum of sentencing, to what extent the quantum of sentencing is homogenous. What is its rationale? What criteria have been used to determine the sentences?

To these issues, one could raise the issue of compensation or compensations, and this matter has been raised in regard of Rwanda. I am talking about compensation. We don’t have only compensation, but we also have the strength of paucity of persons who have been convicted. To what extent has the Tribunal successfully resolved the issue of compensation which, indeed, has not been addressed head on?

There is also given that I heard of the imminent closure of the Tribunal, we have the post Tribunal. What will become of those convicts? How do we complete ongoing trials? What will become of the post Arusha litigation? Will there be crimes without limitation in respect of the punishment of the genocide in Rwanda?

Let me take the advantage to draw your attention to the fact that this is the crime of genocide which has been tried the most in history whose judgements handed down exceed the judgements of Nuremberg and the judgements delivered in the former Yugoslavia, judgements delivered in Rwanda, judgements delivered in Belgium and ongoing trials in the country, as well as the Gacaca courts. This is not part of our ^beef, so we are not going to handle it.

But in terms of a legal issue, once again, this is the crime against humanity which holds the record of the most tried cases and which has produced a lot of material which will be explored in respect of the fact that those crimes do not have any limitations like all crimes against humanity.

Obviously, the closure of the Tribunal brings to the fore the issue of archives which is intertwined with what I have just stated in respect of limitations and post Arusha litigation, because records are the living memory of the work. It is also the memory of this historical event. It is probably the grist for further litigation, and it is indispensable to historians because we have departed from our naive approach whereby there was an event, there was a trial and there was a definitive historical account. But today there is a turnaround. There is a reinterpretation of history and for which the work of the ICTR will be priceless.

That said, we still have a lot to handle by way of discussions this afternoon, and I would like to start off with the issue of the plea of guilty. I think there were some Defence lawyers who wanted to say something in this regard.

Counsel Roux.