OR: ENG

Before: 
Judge Lloyd George Williams, Presiding
Judge Yakov Ostrovsky
Judge Pavel Dolenc

Registrar:  Adama Dieng

Date: 24 September 2001

PROSECUTOR
v.
Andre NTAGERURA
and
Emmanuel BAGAMBIKI
Samuel IMANISHIMWE

Case No. ICTR-99-46-T

DECISION ON THE COALITION FOR WOMEN’S HUMAN RIGHTS IN CONFLICT SITUATION’S MOTION FOR RECONSIDERATION OF THE DECISION ON APPLICATION TO FILE AN AMICUS CURIAE BRIEF

Ariane Brunet for the Applicant
NGO Coalition for Women’s Human Rights in Conflict Situations

Defence Counsel for Ntagerura:
Benoît Henry
Hamuli Rety
Marie-Louise Mbida
Vincent Lurquin

The Office of the Prosecutor:
Richard Karegyesa
Andra Mobberley
Holo Makwaia

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (the Tribunal),

SITTING as Trial Chamber III, composed of Judges Lloyd George Williams, presiding, Yakov Ostrovsky and Pavel Dolenc (the Chamber);

BEING SEISED with a "Request for Reconsideration of the Decision on Amici’s Application to File an Amicus Curiae Brief According to Rule 74 of the Rules of Procedure and Evidence Filed on Behalf of the NGO Coalition for Women’s Human Rights in Conflict Situations," filed on 12 July 2001 (the Motion);

CONSIDERING the "Réponse de la Défense de Ntagerura André à la Demande Introduite par la Coalition des ONG pour les Droits Humains des Femmes dans les Situations de Conflit Armé pour Réexamen de la Décision Rendue par la Chambre de Première Instance III le 24 mai 2001 dans la Demande de Dépôt d’un Mémoire d’Amicus Curiae selon la Règle 74 des Règles de Procédure et de Preuve," filed on 10 August 2001;

CONSIDERING the "Réponse de la Defense de Samuel Imanishimwe à la Demande de Réexamen de la Décision de la Chambre de Première Instance III Rendue le 24 Mai 2001, Formulée par la Coalition des ONG pour les Droits Humains des Femmes dans les Situations de Conflit," dated 7 September 2001 and filed 10 September 2001;

CONSIDERING the "Réponse de la Defense d’Emmanuel Bagambiki à la Demande de Réexamen Introduite par la Coalition des ONG pour les Droits Humains des Femmes dans les Situations de Conflit Armé à l’Encontre de la Décision Rendue par la Chambre de Première Instance III en date du 24 mai 2001 Quant à la Demande de Dépôt d’un Mémoire d’Amicus Curiae selon l’Article 74 du Règlement de Procédure et de Preuve," filed on 7 September 2001;

CONSIDERING the "Prosecutor’s Response to a Request for Reconsideration of the Decision on the Application to File an Amicus Curiae Brief by Coalition for Women’s Human Rights in Conflict Situations," filed on 7 September 2001;

CONSIDERING the "Decision On The Application to File an Amicus Curiae Brief According to Rule 74 of the Rules of Procedure and Evidence Filed on Behalf of the NGO Coalition For Women's Human Rights In Conflict Situations," 24 May 2001 (the Decision);

NOW CONSIDERS the matter solely on the basis of the briefs of the parties, pursuant to Rule 73(A)of the Rules of Procedure and Evidence (the Rules).

SUBMISSIONS OF THE APPLICANT

1.  The NGO Coalition for Women’s Human Rights in Conflict Situations (the Applicant) requests reconsideration of this Chamber’s decision of 24 May 2001 dismissing the Coalition’s "Application To File an Amicus Curiae Brief According to Rule 74 of the Rules of Procedure and Evidence filed on behalf the NGO Coalition for Women’s Human Rights in Conflict Situations".

2.  The Applicant submits that the Chamber used misguided language and misapplied the relevant standard inherent in Rule 74 thereby limiting the scope of Rule 74 in future cases. In particular, the Applicant is concerned that the language used in the decision appears to prohibit amicus intervention in relation to issues that are not already under consideration by the Trial Chamber and would thereby prevent an intervenor from bringing a new or unconsidered issue to the attention of the Trial Chamber. The Applicant further submits that this approach would have a deleterious effect on the ability of under represented groups to participate in the development of international humanitarian law.

3.  The Applicant suggests that the Chamber adopt the test applied by Chamber I which permits amicus intervention where the third party may be of assistance for the "proper determination of the case" The Prosecutor v. Akayesu, Order Granting Leave For Amicus Curiae To Appear, ICTR-96-4-T 12 February 1998. The Applicant also referred to the decision in Prosecutor v. Ntuyahaga, ICTR-98-40-T 18 March 1999, which discusses the need to examine all of the violations that occurred during the events in Rwanda in 1994.

SUBMISSIONS OF THE DEFENCE

4.  Counsel for Ntagerura submits that the Rules do not permit a party or a potential intervenor to request that the Trial Chamber reconsider an earlier decision, as this would be an indirect appeal of earlier decision by the Trial Chamber. According to the submissions of Ntagerura, the Trial Chamber should articulate a specific issue that requires submissions from any State, organization or person prior to assessing an amicus application. The Defence submits that the Applicant NGO is not addressing any live issue before the court.

5.  The Defence of Imanishimwe argues that the Motion should be rejected, since there is no legal basis in the Statute or Rules that permits this sort of review of a previous decision.

6.  Similarly, the Defence of Bagambiki submits that neither Rule 74 nor any other Rule provides for this type of reexamination of a previous decision.

SUBMISSIONS OF THE PROSECUTOR

7.  The Prosecutor rejects the interpretation of the Decision suggested by the Applicant and submits that the Decision does not restrict amicus curiae applications. The Prosecutor distinguishes the decision in Prosecutor v. Akayesu, 12 February 1998, noting that that in the present case the Chamber cannot legally grant the relief sought by the Applicant.

DELIBERATIONS

8.  The Chamber notes the concerns expressed by the Applicant. The Chamber reiterates that the circumstances of this case are markedly distinguishable from the facts that precipitated the decision in Prosecutor v. Akayesu, as fully discussed in the Chamber's previous Decision. Moreover, the Chamber observes that the Prosecutor has indicated that she will be filing a separate indictment with respect to the matter in question.

9.  In considering a request for review, the Tribunal is bound by the Statute and Rules. Article 25 of the Statute and Rules 120 and 121 address the issue of review. These provisions are clear that review is an exceptional measure that may be invoked where a new and potentially decisive fact has been discovered. In the present request for review, the Applicant has not raised any new fact that could serve to trigger the exceptional jurisdiction of this Chamber to reconsider a previous decision.

10.  Accordingly, the Chamber need not address whether review proceedings are available to non-parties or in relation to decisions other than judgements.

11.  For these reasons, the Chamber DISMISSES the Motion.

Arusha, 24 September 2001.

Seal of the Tribunal