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contribution 06 - MUNA Bernard Acho

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Civil law vs Common law - RPF prosecution - Prosecution strategy

Bernard MUNA

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I will be turning to my friend Reyntjens. I probably will start with his comments because it goes to the root of what he is thinking.

I do not believe that the Tribunal was created to be an arbitrator between the RPF and the Hutu government and so forth. So we keep on talking about the impartiality. It was not the job of the Tribunal to be a referee between the two warring factors in Rwanda. My friend Reyntjens has stuck to this idea of impartiality between the two groups. That was not the job of the Tribunal.

The Tribunal was made to get people who had committed genocide and high crimes and punish them without any impartiality. Those you could get. Not to get everybody. As a lawyer myself, in any criminal Tribunal, even in domestic Tribunals, when crimes are committed, you get some and you don’t get some.

So that is my preface to that because this to seek to make the validity of the tremendous work this Tribunal has done, to seek to validate it only if it fits the views of some people would be a gross injustice to those who have laboured in this Tribunal to where it is now. And accepted and made certain standards which is accepted in the world. They have done a tremendous job and the validity of the work of the Tribunal cannot depend on whether or not Amnesty or Human Rights Watch agrees with this job.

And I thank the Courts that they didn’t set out to please public opinion or to please Amnesty International or to please Human Rights Watch. They set out to render justice. Sometimes when you render justice to some people, especially if they have an agenda, it doesn’t seem that you have rendered justice. It would be a pity if the work, the fine work that the Tribunal has done is constantly being put through the process of some conceived impartiality between the two warring factors in Rwanda. That was not according to my mind, that was not the job of the Tribunal.

Now, the second point I want to make is that we, with my friend Othman, we talked about this "big fish" and "small fish". It is important. I want to re emphasise what he said about the "big fish" or how we got them.

The uniqueness of the genocide in Rwanda, the crimes against humanity, state to the fact that there was a government. There was not like in Yugoslavia where you had different groups fighting to get their independence from a federal authority. It was one government, one government. There was a government in place. The uniqueness of the genocide was that there was a government in place. There were policemen. There were army and so forth. The pity is that we went in as if we were looking for common criminals.

And so going in to see what has happened, what happened to this failed state. What happened? What were the policemen doing? What were the gendarmes doing? What was the government doing? And so forth. And that is how we came to redefine the conspiracy theory, because we found that the members of government had cabinet meetings during this time. The members of government invited certain bourgmestres and certain prÈfets to come. We had one from Ruhengeri who came to a meeting of the cabinet and then when he went back, got lost. He has never been found. He were murdered.

So it is important to know that when the genocide happened, there was a government. And it was not something that happened between two groups only. There was a government in charge. And this is important in looking at the investigation. And my actual being in Rwanda, I thought that the Tribunal was not given all the tools because we jumped into the middle of something that happened; whereas, it should have been preceded by a proper investigation and enquiry. And within that enquiry, we have names, we have what happened, we have what did the government do, and so forth. That’s how we came so our "big fish" theory eventually evolved from this strategy.

Now, the third point I want to make is that the Rwandan government has a policy. It has a criminal policy. It’s politics in place and, therefore, they did their prosecutions according to the politics of the prosecution. Every government, as far as I am concerned, has a politic. It’s a criminal policy. How do you deal with criminal prosecutions directed by a department of the government? It is not directed by some independent. When things goes wrong, there are the Ministers of justice. They ask them what happened? They don’t ask the judges. What’s wrong? Whereas, the criminals are going free. They are the ministers of the justice.

So most governments have a department, political Department of Justice which defines the policy. The advantage which our Tribunal had behind us, we had the United Nations which defined our policy which had stated the purpose for which our Tribunal was made.


With your leave, sir, the question that has been coming up recurrently, but especially after Mr. Reyntjens spoke, is: What is the level of independence enjoyed by the Tribunal to define its Prosecution policy? What resources and authority does it have to define objectives it considers to be that of the Statute? In keeping with the statute, what are the resources and methods it has to do that?

Bernard MUNA

I will try to be short.
I was saying that in the United Nations Tribunal we had at least a resolution which gives us what we have to achieved.
Now, the other thing that raised investigations is that we are dealing with the United Nations Tribunal. One of the great difficulties that we had was getting policemen from every corner of the world, every corner of the world, and then thinking that they can work in harmony. This brought us a lot of problem.

Now, the last thing I will try to be quite short, as the President said, is that I feel that the civil law system, not the accusatorial system, but the civil system would have been a better system in getting these types of crimes punishable. It would have been a better system. It probably would have brought more people in jail.

And then lastly, another point that I made is that we find that the insistent on the accusatorial system or not trying people in absentia was also a big impediment because at least if you tried in absentia, at least part of the healing of the society and of the victims and the witnesses who have been done, you have heard them. But now, 15 years afterwards, we don’t know whether most of them are still alive. So the lack of trial in absentia was something that I think did not allow the work to go as it should.

Thank you very much, Mr. Chairman.


Thank you, Mr. Muna. Mr. Prosper, please.