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contribution 31 - ARBIA Silvana

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Prosecution strategy

Silvana ARBIA

transtlated version

I will try to be very brief. Now, concerning Butare, as somebody said, it be cited as an example of dysfunction. I may accept that theory, but I have evidence to the contrary. Now, there are six accused persons in the same trial and that was a strategy, that is, a joinder or no joinder. The only practical problem, not legal but practical, if we have to do single cases for all six, you have to find six chambers, with six benches to try all the six at the same time, so it could take quite some time too. So if you consider that, then the Butare case, even though it was very long I may not get into the detail, but it was suspended or adjourned for about a year, but even if you consider all of the length of that trial, it is still an example of judicial economy, because I was saying that the length is still shorter than six single trials, because the same witnesses were called just once and not six times. They were the same witnesses that were common to the accused, especially the traumatised witnesses, the victims, who were called just once instead of six times. Admittedly, the length of the direct examination and the cross would be longer than in a single accused trial. And so on account of that, given that the Prosecution calls 58 witnesses for six accused persons, I believe there was judicial economy.

Now, about release on parole, admittedly, not a single case has been granted. There has been no single case of release on parole, but we also have to cite concrete cases. And I remember the Rukundo case at the pretrial phase the problem was that the Defence had not given any indication as to the venue where Rukundo could go and stay while awaiting his trial. So there were practical problems in the Rukundo case. In the case of Rwanda there were major problems too. Everyone knows. Anyone who is arrested is arrested on the basis of an indictment that has been confirmed by a judge. So there is circumstantial evidence on which such a person is arrested.

So that is already a stage where there is indicia of guilt. So there are also the other tangible difficulties that I raised. So if one considers all these difficulties, we begin to understand why there has been no release on parole.

Now, on to sentencing. In all judgements, if we read through them, we realise that part of the judgement has a whole part devoted to sentencing. So it is important to see how the Judges consider it, because that’s an important part of their work, the sentencing.

I heard somebody comparing the ICTY to the ICTR. That is really wrong, because among the factors that the Judges have to consider is the law of the country concerned, the law of Rwanda, for precise reasons. We cannot behave as if the laws of Rwanda on sentencing do not exist. So it is true that both tribunals are instances of international justice with the same base, but that reference to national laws exists. And it is a factor.

And another shortcoming may be that international criminal justice does not have its own penitentiary system, so we have such scandals as where a country applies its own penitentiary system different from other countries for the same sentence handed down by the International Criminal Court. That is maybe a problem that should be addressed.

A. GARAPON

Well, when a life sentence is handed down, who will manage it after the Tribunal closes down? What are the jurisdictional problems here?