CHAPTER II. PROCEEDINGS

1. Procedural Background

8.                On 9 February 1999, Ignace Bagilishema was arrested in the Republic of South Africa pursuant to an arrest warrant issued by Judge Navanethem Pillay on 14 December 1998. He was transferred to the Tribunal on 20 February 1999. His initial appearance occurred on 1 April 1999 before former Trial Chamber II, composed of Judge William Sekule, presiding, Judge Yakov Ostrovsky and Judge Tafazzal Khan. At the hearing, the Accused was represented by duty counsel and entered a plea of not guilty to all thirteen counts of the Indictment, as amended on 29 April 1996.[6]

9.                On 15 September 1999, the present Trial Chamber granted the Prosecution leave to sever the Accused from the previous Indictment and directed the Registry to assign a new case number for the separate trial of the Accused.[7] On the same day, the Registry designated ICTR-95-1A-I as the new case number in respect of the Accused. By Decision of 17 September 1999, the Prosecution was granted leave to amend the Indictment and to proceed with all the counts in the proposed amended Indictment, with the exception of the count of Conspiracy to commit Genocide. The next day, on 18 September 1999, the Accused pleaded not guilty to all seven Counts in the new Indictment.  Pre-Trial Conferences, pursuant to Rule 73bis of the Rules, took place on 18 September and 25 October 1999. The trial of the Accused commenced on 27 October 1999 with the Prosecution’s opening statement.

10.                From 1 to 4 November 1999, all three Judges of the Chamber visited Kibuye Prefecture, Rwanda, in order to see the locations of certain alleged events of relevance in the case, and thus to better appreciate the evidence to be adduced during the trial. The visit had been requested by the Defence, and the Prosecution had no objections. This was the first such visit by a Trial Chamber in connection with a trial.

11.                On 23 November 1999, the Chamber rendered an Oral Decision concerning the number of witnesses the Prosecution was entitled to call during the trial. During a Status Conference held on 13 August 1999, the Prosecution had then stated its intention to call 16 witnesses. The number was 22 in its pre-trial brief of 17 September 1999, whereas a list of 27 witnesses was submitted during the Pre-Trial Conference of 25 October 1999. The Chamber did not consider the Prosecution bound by its submissions during the Status Conference. The final list of witnesses for the Chamber in relation to Rule 73bis of the Rules was that of 17 September 1999, as modified on 25 October 1999. However, the Chamber held that the Prosecution was entitled to call only witnesses whose written statements had been disclosed to the Defence by 27 August 1999, i.e. 60 days before the date set for trial as required by Rule 66(A)(ii). Additional witnesses could be called only with leave of the Chamber, provided that the Prosecution had shown “good cause” to do so in accordance with that provision.[8]

12.                Consequently, the Prosecution requested leave to rely on additional witnesses’ statements and a document which were disclosed after 27 August 1999. The motion was heard on 30 November 1999. In its Oral Decision of 2 December 1999, the Chamber considered whether the Prosecution had shown “good cause” under Rule 66(A)(ii) in relation to each of the witness statements and the document. The Chamber stated, inter alia, that a mere reference to on-going investigations was not in itself a sufficient reason to admit new statements after the 60 day time limit set out in Rule 66 had lapsed. The Chamber granted leave to rely on statements of Witnesses AA, Y and Z, which according to the Prosecution contained information relevant to command responsibility of the Accused under Article 6(3) of the Statute. The charges under that provision were included in the amended Indictment of 17 September 1999 following the Chamber’s decision of that date, and further investigations were carried out shortly thereafter by the Office of the Prosecutor. The Chamber denied the Prosecution leave to rely on the other witness statements contained in an annex to its motion, with the exception of statements entered as Defence exhibits.[9]

13.                No Prosecution witnesses were available from 30 November 1999. On 6 December 1999, the Prosecution, following the Chamber’s instructions, submitted a revised list of witnesses. It included Witnesses T, U, X and W. The Defence filed a motion requesting the Chamber to find that these witnesses could not be called to testify at trial. The Prosecution conceded that the 60 day time limit in Rule 66(A)(ii) concerning the disclosure of witness statements had been violated, but argued that this could not in itself automatically be held to estop the Prosecution from calling additional witnesses and presenting their oral testimony during trial. The hearings resumed on 24 January 2000. In its Oral Decision the following day, the Chamber ruled that Witnesses T, U, X and W could not be called to testify at trial. It noted that the 60 day time limit in the first sentence of Rule 66(A)(ii) was formulated in absolute terms. According to the Chamber, the purpose of that provision is to ensure that the Defence is afforded sufficient notice of the alleged facts to which all witnesses are likely to testify, in order to have adequate time and facilities for the preparation of the Defence. However, the Chamber recalled that, under the second part of Rule 66(A)(ii), it has the discretion, upon showing of good cause by the Prosecution, to order the disclosure to the Defence of statements of additional Prosecution witnesses that were not made available within the 60 day time limit.[10]

14.                On 17 February 2000, the Chamber rendered an Oral Decision on a Defence motion to have at its disposal as many investigators, assistants and Counsel as does the Office of the Prosecutor. The Chamber observed that the principle of equality of arms is an inherent element of the right to a fair trial, which is guaranteed in many international instruments. However, present human rights case law does not require that both parties in a case shall be granted the same level of material means and resources, for instance in relation to lawyers and investigators. The Chamber saw no reason to give a wider interpretation of the principle of equality of arms within the specific context of Article 20 of the Statute.[11]

15.                The Prosecution closed its case on 18 February 2000, after having presented 18 witnesses, including two of its investigators and one expert witness. The Defence then requested that the trial be adjourned to allow sufficient time to prepare its case. In this context, the Defence referred to a recent plane crash during which one of its investigators was injured and files were lost.

16.                After the Pre-Defence Conference on 30 March 2000, held pursuant to Rule 73ter of the Rules, the Defence case commenced on 25 April 2000. Following a break requested by the Defence from 4 to 22 May 2000, the Defence closed its case on 9 June 2000. In all, 15 testimonies were heard, including expert witnesses and the Accused.

17.            Among the motions decided during the presentation of the Defence case was a request by the Defence to obtain a United Nations memorandum prepared by Michael Hourigan, a former investigator. The memorandum allegedly concerned the circumstances of the shooting down on 6 April 1994 of the airplane carrying the Presidents of Rwanda and Burundi. It had been transmitted to the Tribunal from United Nations Headquarters in New York so that if this matter were to be raised before the Tribunal, the appropriate Trial Chamber could decide whether the document would be relevant to the defence of any of the accused. The President of the Tribunal, after consultation with the other Judges, placed the document under seal in the President’s Office immediately upon its arrival; the President stated that neither she nor any of the other Judges had read the memorandum. On 8 June 2000, the Trial Chamber in the present case, by a majority, Judge Møse and Judge Gunawardana, directed the Registrar to serve the Defence with a copy of the memorandum forthwith, and to make available a copy of the memorandum to the Prosecution, if it so desired. In the view of the majority, the memorandum might be relevant to the Defence. Irrespective of whether the document would in the event have a bearing on the outcome of the case, the majority was of the opinion that, to deprive the Defence, at this stage of the trial, of access to specific documentation in the possession of the Tribunal, might affect the right of the Accused to a fair trial. Judge Güney expressed a separate and dissenting opinion, according to which the Defence had failed to prove the relevance of the memorandum in the instant matter.[12] Following the decision, the Defence entered the memorandum as an exhibit.

18.            On 8 June 2000, the Chamber also ruled on Defence motion for disclosure by the Prosecution of the admissions of guilt of Witnesses Y, Z and AA, all presently detained in Rwanda. In its reply, the Prosecution stated that it was not in possession of the written confessions of these witnesses. The Chamber dismissed the motion of the Defence, which was based on Rule 68 of the Rules. However, the Chamber was of the view that the confessions could be material in evaluating the credibility of said Prosecution witnesses. It therefore ordered, proprio motu, the Prosecution, pursuant to Rule 98, to take the necessary steps to obtain the written confessions of the three witnesses.[13] As the Prosecution was able to retrieve the documents, the Defence subsequently tendered these three confessions as exhibits.

19.            Furthermore, by Decision of 8 June 2000, the Chamber dismissed a request of the Defence under Rule 54 of the Rules to summon three witnesses, all of whom were personnel of the United Nations Assistance Mission in Rwanda (UNAMIR) in Kibuye in 1994. However, the Chamber ordered the Prosecution, pursuant to Rule 98, to take the necessary steps to obtain the minutes of a Security Council meeting in Kibuye Prefecture, held on 9 April 1994.[14] The Prosecution subsequently informed the Chamber that its investigations had borne no results.

20.            On 11 July 2000, the Chamber dismissed a Defence motion requesting the Trial Chamber to direct the Prosecution to investigate whether a witness had given false testimony. The Chamber held that the submissions of the Defence did not tend to demonstrate that the witness had knowingly and willfully given false testimony, as interpreted by case law under Rule 91 (B) of the Rules.[15]

21.            Closing arguments were scheduled from 10 to 14 July 2000. The Prosecution filed its brief with closing remarks on 30 June 2000. However, contrary to the Chamber’s order, it was filed in English only. Translation of the voluminous document required time, and the hearing was postponed. New deadlines for the parties were set. The Defence submitted its extensive closing brief on 4 August 2000, which then also needed translation. The oral hearings on the closing arguments took place from 4 to 7 September 2000. On 7 September, the Chamber by majority, Judge Møse dissenting, ordered the Prosecution to file written rebuttal closing arguments by 14 September 2000. The Defence was granted one week from receipt of the translated version of these arguments in which to reply. The parties met the filing deadlines and the oral arguments were subsequently heard on 18 and 19 October 2000. In all, the trial included 60 days in court between 27 October 1999 and 19 October 2000.

2. Evidentiary Matters

22.            The case law of the Tribunal has established general principles concerning the assessment of evidence. The Akayesu Judgement contained important statements on, inter alia, the probative value of evidence; witness statements; the impact of trauma on the testimony of witnesses; interpretation from Kinyarwanda into French and English; and cultural factors affecting the evidence of witnesses.[16] Subsequent jurisprudence of the Tribunal has developed these principles relating to evidentiary matters, the most recent authority being the Musema Judgement.[17] The Chamber will return to them to the extent necessary.

23.            In this context, the Chamber simply recalls that, under Rule 89(A) of the Rules, it is not bound by any national rules of evidence. The Chamber has thus applied, in accordance with Rule 89, the rules of evidence which in its view best favour a fair determination of the matter before it and which are consonant with the spirit and general principles of the law.

24.            Regarding in particular the assessment of testimony, the Chamber observes that, during the present trial, previous written statements of most witnesses appearing in this case were tendered in their textual entirety as exhibits. On occasions, the parties and, where appropriate, the Chamber, have raised inconsistencies between the content of an earlier statement and the testimony during the trial. The Chamber’s point of departure when assessing the account given by a witness is his or her testimony in court. Of course, differences between earlier written statements and later testimony in court may be explained by many factors, such as the lapse of time, the language used, the questions put to the witness and the accuracy of interpretation and transcription, and the impact of trauma on the witnesses. However, where the inconsistencies cannot be so explained to the satisfaction of the Chamber, the reliability of witness’ testimony may be questioned.

25.            Finally, the Chamber notes that hearsay evidence is not inadmissible per se, even when it is not corroborated by direct evidence. Rather, the Chamber has considered such hearsay evidence with caution, in accordance with Rule 89. When relied upon, such evidence has, as all other evidence, been subject to the tests of relevance, probative value and reliability.