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contribution 04 - OTHMAN Mohamed

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Whom to prosecute? - Prosecution strategy

Mohamed OHTMAN.

original version

Thank you very much.

I think one of the biggest issues in the evolution of the Prosecution strategy in OTP in the Rwanda Tribunal, when investigations began whether in Yugoslavia or in the Rwanda Tribunal, was the approach that is the investigations of executors who would lead to top ranking accused. That was this policy that was adopted during the first two years. But the situation then evolved depending upon the investigations.

And the second phase was, when the Prosecution came up with a position, having had a look on the type of atrocities that were committed. Because in the case of Rwanda, for example, you had, from the time 1996 to 1999, about 3,000 people arrested by Rwandan authorities every month. So you had a number of perpetrators under arrest available to the Tribunal. Then you had at the same time a number of States arresting accused and not willing to extradite them to Rwanda. So you had the job of the Tribunal cut already because you had a number of accused, Akayesu, Kayishema, and so on, already arrested by Zambia, made available to the Tribunal.

In terms of the evolution of the policy, I definitely think that is what we have learnt is that you must have a Prosecution strategy, whether it’s anywhere. And in Rwanda, if my memory does not deceive me, I think it had a number of elements.

One element was that we said in Rwanda there was only one genocide, not a hundred genocides, because your investigation would change according to that, and that came up, which is debatable now, the conspiracy theory. It has pros and cons. I think we can debate about the conspiracy. We have to distinguish between the two conspiracies. Conspiracy of accused committing the crime and conspiracy as a Prosecution theory to say that there was in Rwanda one nationwide genocide.

Second element. I think that the accusations by the Rwanda Tribunal should reflect a random sampling of criminal responsibility for the genocide. So a clear conscience attempt was made in this representative sampling of accused. And now it is a doctor, you would have a priest.

Another element was that we must demonstrate in this policy de facto authority, because it was a clear case for the first time, not Nuremberg, that key responsibility arose out of the de facto situation or de facto reflection of authority.

Of course, as I said, this is linked to the investigations, having different police from different backgrounds, common law, civil law. So you have two approaches of the investigations. One is police directed investigations in common law systems. Scotland Yard, you don’t tell the police how to do their criminal investigations. Civil law, where it is Prosecution directed from the beginning. And this had to be married, I think, along the way.

But what I want to say is that, of course, definitely, we have learnt that investigation needs tools. The elements of crimes now are more developed at the ICC. It is very clear from the beginning. In the UN Tribunal, Rwanda Tribunal, it took a long time to agree on these elements of the offences. And now at the ICC, it is stated very clear in the rules what are the elements.

I think that the Prosecution strategy may have suffered a little bit from the pressure to get results. The pressure to get results led also to indictments maybe of lower level perpetrators. Some of the accused were even indicted without knowing their full name.

Just to wind up on the model of criminal justice. If you look at the statistics, the period of time between the first appointment of the Prosecutor for the Rwanda Tribunal and the first indictment, about two years. ICTY, two years;. ICC, about two years’ period. Are we saying: Is international criminal justice a delayed model of delivering justice? There is no other way than to accept for the stakeholders a delayed model. Then that message has to be there, because we know the intricacies involved in this delayed model of international criminal justice.


Very well. Thank you for your intervention. In what you have stated, I gather two key issues. The first relates to the Prosecution strategy. It has changed over time and depending on the circumstances. Yet you state that you wonder on the way this stategy has changed over time. Is it consistent with the mandate of the international court? Especially in reference to certain persons that should not have been accused? When you say authorities need to be defined, was that not really clear in your mind? Did that cause a misunderstanding or a misguided understanding of, you know, the policy, prosecution policy, as it were?

Mohamed OHTMAN.

I think those have been reached because, as the President was saying this morning that the profile of accused at the Rwanda Tribunal I think reflects definitely a very high level of responsibility.

What I am saying is that the Prosecutor did not come to that profile of accused as a stumbling block. It was a very conscience policy towards getting there. But, clearly, if you wanted, and this was the position, to demonstrate a national conspiracy or planning in these kinds of crimes, you have to dissect between two things. One is the context and the second is the individual criminal responsibility. The context came from human rights report, and so on, in saying that the genocide was well prepared, it was planned, it was organised and so on.

So with this we said the cabinet or the ministers in the Rwandese interim government cabinet had part of the responsibility. And what is that reflection? Fourteen ministers in a cabinet of 18 or 19 have been accused. Two have been acquitted. I think 12 have been convicted. So I think the level of responsibility in Rwanda has been demonstrated.

I forgot to mention that there was also a very clear attempt that in this accusation, as a policy, it would reflect political leadership, military leadership, civil administration and political party representation. That is why you have Government I, Government II, Butare, and so on and so forth. So the accusation would reflect also that high level.

But, of course, in these kind of investigations you have "small fish", if you want to call it, who filter in. I think in my view, in the Rwanda Tribunal, some of those filtered in, because, as I said, the pressure to get results, and so on, in order to come to up with indictments.


Mr Reyntjens, please.