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contribution 12 - KWENDE Alfred

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Prosecution strategy


original version

Thank you, Mr. Chairman. I was going to take the floor for more extensive things, then I discovered that we have a session tomorrow, during which I will have much more to say.

However, I thought I should say something on a few matters related to investigations which I thought were not revealed or said in the difficulties of getting the Prosecutions in place.

It’s just been glossed over, but a major difficulty we need to understand is that the investigations section of ICTR is the only main office of the OTP in Kigali, therefore, placed at the scene of the crime. There is a major difficulty going around to conduct investigations.

Secondly, it was proposed, I think by Madam Arbia, that there is need to have the Prosecutors direct the investigations. I think I’m not against this process. I agree with that, but note that even in the present set up we had legal advisers imbedded in the investigations teams, and they followed up to give advice as investigations progressed. I think the more serious thing was that we didn’t know the elements of crime. The crimes had been stated in the statutes but the elements were not identified nor clearly spelt out, as we have today, in the statutes of ICC, which has in fact learnt from the errors of ICTR by identifying those elements which can help investigators.

Yes, the failure of the first investigators who came in was that they didn’t have much experience. I think it’s the same with every other place, because nobody has ever learnt, be it at national or international level, to investigate mass crimes. It’s a matter on which people should be trained. And even then the crimes vary, the scenes of crime vary and the issues vary. So it all depends on what strategy the Prosecutor has on and how he intends to charge; what elements of investigations shall served as evidence for the indictment.

In ICTR, of course, we had all these problems heaped up, and in addition to what I have mentioned, more difficult challenges were in the context where the security on the ground didn’t permit any movement. To go out into the field, you had to go with a military escort, because Rwanda had two phases of security in the United Nations: Phase three, where you must go with escorts; Phase two, where you have to be very careful, you don’t go out beyond a certain hour. At a certain time even Rwanda was under curfew and investigators couldn’t stay out beyond 5 o’clock and they couldn’t go out of doors before 8 am. Under these conditions, contacts with witnesses were compromised and sometimes let to delay the progress of investigations.

Of course, because experienced investigators were not easy to find, the first investigators that came on were “secondees”, as we called them, who were sent to the Tribunal by their states for a short period, they couldn’t lead one file to the end. They started investigations which they left because they could not stay beyond six months. When they left the investigations, new investigators were called to do the same file. And in some case, they did not understand the initial strategy. They didn’t follow the same trend that was put up at the beginning. Fortunately, this was corrected when dedicated and more experienced investigators were recruited and bought on board on a long term basis.

I thought I should bring this up as part of the difficulties that we were encountered by the Prosecution at the early stage. When we started, OTP was in Kigali with all its staff that’s true, and we had some legal advisers imbedded in the investigations section.

Later on, when the trial teams all moved to Arusha, there was still a residue of investigations on the ground and there were acts of initiative that had to be developed by the investigators. As we heard from one of the previous speakers, each one comes with a background of the system of trials and investigations of his/her country where the investigations are directed either by investigative magistrates or by the investigators themselves. The main thing is to know that a strategy must be put up. The strategy must be understood by investigators and there must be constant training. You don’t usually have a pool of investigators on theses types of crimes from which you can always recruit. Even if you have investigators, you would need to train them. From the experience in Kigali, we didn’t only go to try to train investigators, and also trying to develop the elements of crime, but we also prepared a manual called operational orders which investigators had to adopt and use in investigations.

I thought I should contribute this. Thank you very much.


Mr. Nsensigmana.