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contribution 18 - WEBSTER Don

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Civil law vs Common law - Prosecution strategy


original version

I would like to raise an issue and that actually goes back to the comments from Madame Del Ponte when she explains that she opened an investigation against the RPF and sought the cooperation of the Rwandese. Now, that statement in and of itself shows you the complexity of running an office of the Prosecution or running an ad hoc Tribunal. Because I would view that as a very civil law approach to Prosecution, because given my background, I would never announce to the person that I’m investigating that I’m starting an investigation against you. From the American version of common law practice, we would investigate, we would develop a file and we would do everything in secret. When we have the witnesses secured and everything is ready and set to go, then the indictment comes and that’s when the case begins.

The civil law approach is different. I’ve experienced that myself when I go to Belgium, because I cannot speak to a witness unless I do a commission rogatoire and ask the permission of Mr. Vandermeersch, which to me is an awkward way of conducting an investigation. Because I want to sit with the witness. I want to cross examine the witness. I want to have my own approach to getting information from the witness. I don’t want a Belgian magistrate between me and the information that I’m trying to get.

That dynamic is replicated with choosing to how you talked about strategy- how do you investigate the government or the suspects that are aligned with the government that you’re depending on to give you access to information? I don’t have an answer to that, but I think this issue is what makes the matter problematic. Because when Mme Del Ponte held a press conference to announce these RPF investigations, I believe it was in either 2000 or 2001, there was immediate response which was not favourable to conducting the investigations, and it could have been handled differently.

Would the results have been any different? I don’t know. But raising the issue, as you do, brings to light the complexity of trying to organise an office with various legal personnel coming from different backgrounds and dealing with a country that itself is different. Look at the tribunal of the country. We have a civil law country, French speaking. Our procedures in the ICTR are more common law oriented with a healthy contingent in its initial days of common law attorneys. It’s a very mixed up bundle of personnel, law, procedures. And everybody comes to the office thinking that their way of doing things is the best way and the only way. All of that goes into the soup and explains how we get to where we are today.


Maitre Roux, s’il vous plait.