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contribution 29 - OTHMAN Mohamed

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ICTR assessment - The plane - Acquittements

Mohamed OTHMAN

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Just two very small remarks. One is about the investigation of the presidential plane. In my view, I don’t think that the Rwanda Tribunal is a tribunal that will be judged negatively because of the non investigation of the presidential plane. Leave alone the jurisdictional issue. That is debatable.

Even if the Tribunal had jurisdiction, there were factors that led to the non investigation. It was not that there was no follow up to that investigation. Contacts were made. There was attempt by investigation, you know, the Michael Hourrigan affair, attempt. But a conscious decision was taken that the Tribunal, much as we have a tracking team, we are not an intelligence agency. No capacity to have double agents within the Tribunal and so on and so forth. And, in fact, we made an evaluation of our own capacity to handle that kind of investigation and because of one clear security risk. Therefore, one would not proceed.

Secondly, the timing in terms of priority, is it a priority? Thirdly, the resources. Fourthly, the technical competence. So when you add up these together, is it the question of priority this investigation will hold. So it was one legal, but also a lot of practical matters that led to that.

In my view, I think that the non revelation of the truth about the investigation of who shot the presidential plane, it was going to the history of Rwanda, that is, the truthfulness of the events in Rwanda, but not necessarily the success or otherwise of the Tribunal. I think definitely in terms of national reconciliation efforts, the truth of the event, it is important to know the triggering event of the genocide.

The other thing I just want to say is the question of the acquittals. I think that an acquittal is a positive aspect in international criminal justice. I don’t think that if you have a system where there is no acquittal, then that is not a proper criminal justice system. Of course, we have a tendency to equate acquittals with prosecutorial errors or prosecutorial misconduct. And that is why some acquittals are appealable, some are not appealable, and you know the standard of the burden of proof on the Prosecutor.

So I think most of the charging policies of the Tribunal, charging policies, it was said before, depending upon different levels of evidence. One, of course, is a prima facie level we know. Maybe we contributed somehow to the delay in the sense that some of the indictments confirmed at prima facie level should have been confirmed at trial sustainability level in the purposes of trial.

But, in any event, most all the decisions charging policies based purely and we have an open process in the sense that there were indictments or information process involving investigators, involving Prosecutor and so on was whether there’s reasonable belief by the Prosecution in the convictability of a certain accused. The result, of course, is for the Judges whether there was proof or no proof. But in terms of the standard of review of the indictments, I think this is one of the positive aspects that can be retained.


Maître Roux.