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contribution 15 - WEBSTER Don

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The plane - RPF prosecution - Prosecution strategy


original version

I would like to thank Madame Del Ponte for her response. Actually, I was about to say the same thing, which is that we try to make this distinction between small fish and big fish. When we started the Tribunal in ’95, we had to start with anything that was available, whether it was a big fish or a small fish. Anything that would get the operation started was how things started.

It was our great good fortune that Akayesu fell into our hands fortuitously, because that was the best place to start in terms of getting the trials and the investigations up and running in Rwanda. I think 50 years from now we’ll look back and we’ll have even greater appreciation for Akayesu, because this was a bourgmestre. He was the link between national authorities and the perpetrators on the ground. And not only that, he was in Gitarama. And not only that, he was at a meeting on the 18th of Gitarama, which brought all of the national authorities together with the local authorities. So without Akayesu, we would not have the building blocks for the larger cases that are more complex.

Joseph Nzirorera was arrested in 1996 in Cameroon. He was released because nobody knew who he was. We didn’t know what he had done. It was at the same time that Bagosora and Semanza were arrested. Bagosora gave rise to this tug of war between Rwanda on one side, Belgium on the other and the ICTR. And that was the first big deferral case. Who was going to have the responsibility for trying Bagosora? Thank God Akayesu was in the pipeline, because if we started the Tribunal trying Bagosora, I don’t know where we would have gotten to. It’s a huge complex case. And unless we had the building blocks to deal with a case that’s complex, there’s no way we could do it justice.

When we look at the ICTY with Tadic, I don’t know too much about the conflict in the Balkans, but Tadic was an excellent place to start because that gave us joint criminal enterprise as a theory of commission, and it gave us that from an Appeals Chamber decision. If we did not have Tadic and the jurisprudence that came out of Tadic, there’s no way we could tackle some of the huge national leadership cases that we’re doing right now. So I think it’s our good fortune to have started with those two cases. I don’t see them as small fish. This distinction that we make between small fish and big fish is pretty illusory, because we cannot get the big fish unless we have the elements that these middle level managers give us.

Then, Mr. Lurquin, I understand your observations in relation to the Cyangugu trial, but from the Prosecution side, it’s not just a question of investigating suspects who do bad things and prosecuting them. We’re also trying to demonstrate to the international community or to the people of Rwanda what happened in Rwanda. So when you look at Cyangugu, there was indeed a minister and a bourgmestre and an Interahamwe leader. There were four or five people. That was a deliberate choice, because it’s not just holding suspects individually criminally responsible, but creating a demonstration of what went on in Rwanda. But that’s a tension within the trial itself, because on the one hand, the accused has a right, it’s a trial to establish individual criminal responsibility. But on the other hand our project goes beyond that, because we cannot prosecute everyone that was implicated in the genocide. We have to do it in a way that demonstrates to the world what went on at the local level. That was the objective. It’s not that evidence had to be manufactured against a suspect to create the trial. We selectively choose our suspects so that we can use the trial as a vehicle to demonstrate what the social dynamics were that produced this horrible tragedy in 1994.

Then Mr. Nkiko Nsengimana had a list of questions. I haven’t been able to list all of them, but the question suggests that there was no investigation of the RPF. That’s no true. There are investigations, but the question is, do these investigations yield the type of evidence that would make going forward with an appropriate case? Well, there are differing points of view on that issue.

Why was there no investigation on the plane? Well, Madame Del Ponte has already given a response to that. Without wanting to promote one of my adversaries in the courtroom, Peter Robinson, who is the Defence counsel for Joseph Nzirorera, wrote an article that was published in the Oxford Journal of Law where he, a Defence attorney, made a legal analysis of the attack on the plane and said that there’s no basis to prosecute it. //Now, this is a Defence counsel that’s making the legal analysis. And you can consult how he analyses the law in relation to that incident and arrives at the conclusion that there’s not a basis for the ICTR legally to prosecute that particular crime.

It’s not that these issues have been ignored or suppressed in the ICTR. But we are dealing with the legal standards that are required to have a case go forward, the political constraints that Madame Del Ponte mentioned. I think, under the circumstances, we’ve done an excellent job. Within the means and the political constraints within which we operate, we’ve achieved quite a bit.

So I don’t think I’ve addressed everyone. Someone asked about investigating the family of Madame Habyarimana, but the Zigiranyirazo case was a case against someone who was dubbed a member of Akazu. This is Madam Habyarimana’s brother or brother in law. So there have been investigations of the circle of businessmen and political figures around the Habyarimanas.

Where I wanted to end in my contribution was partially in response to Professor Reyntjens. It’s not on why we haven’t prosecuted the RPF in the ICTR, but the issue of the statute and our competence and our jurisdiction to begin with, which has hamstrung our operations in terms of addressing the full range of crimes that take place in the region of the Great Lakes.

My problem, quite frankly, is with the limited temporal jurisdiction of the court, which makes it quite distinguishable from the ICTY. The ICTY is a court that has teeth, that has living currency because it has unlimited jurisdiction. Its unlimited jurisdiction did not prevent Srebrenica in 1995, but it gives a currency and a forward looking perspective that we don’t have in the ICTR. Everything that goes on in the ICTR is always looking backwards, because the only thing we can prosecute are the crimes that took place in 1994. And that in and of itself was an accommodation, because Mr. Nsengimana was right, Rwanda did not want the court initially. One of the points that they disputed was this issue of temporal jurisdiction. From the RPF perspective, the only thing that should have been prosecuted, the temporal jurisdiction should have stopped on the 17th of July 1994 and should have started in 1990, because they see the buildup to the crime over a period of four or five years. I think the court would have had more currency if things were going in the other direction, that is, if our jurisdiction started in January of 1994 and was open ended. So that when you have crimes committed on the territories of neighbouring states, the court has some leverage to be a political actor. Now, that’s not the role of a court. But these courts take place in a political context. I think we probably would have been able to do our job much better, had a broader spread of suspects and investigations, if the temporal jurisdiction was broader.

So that is enough of a response for now. I will end there.


François-Xavier Nsanzuwera, et ensuite, Madame Haskell.