THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA (“Tribunal”),
SITTING as
Trial Chamber III, composed of Judge Dennis C.M. Byron, Presiding, Judge
Emile Francis Short and Judge Gberdao Gustave Kam (“Chamber”);
BEING SEIZED of
a) the “Prosecutor’s Conditional Motion for Leave
to Amend the Indictment” (“Motion”) filed on 31 August 2004,
b) the Defence “Response to the Prosecutor’s
Conditional Motion for Leave to Amend Indictment and Motion Objecting in
Part to the Form of the Amended Indictment Filed on August 31, 2004” (“Counter-Motion”)
filed on 9 September
2004,
c) the Prosecution “Reply to Defence Response
to Prosecutor’s Conditional Motion for Leave to Amend Indictment and Response
to Defence Motion Objecting in Part to the Form of the Amended Indictment
of 31 August 2004” filed
on 14 September 2004,
d) the Defence “Reply to the Prosecutor’s Reply
to the Defence Response to the Prosecutor’s Conditional Motion for Leave
to Amend Indictment and Reply to the Prosecutor’s Response to the Defence
Motion Objecting in Part to the Form of the Amended Indictment” filed on
16 September 2004,
e) the Prosecution “Supplemental Reply to the
Defence Response of 16
September 2004 RE: Amended Indictment of 31 August 2004” filed on 22 September 2004,
f) the “Defence Submission Opposing Reopening
Prosecutor’s Argument in his Amendment Application” filed on 21 September 2004,
g) the Prosecution “Submission of Attested Statement
Re: Conditional Motion for Leave to Amend Indictment” filed on 23 September 2004,
h) the “Defence Submission in Reply to Prosecutor’s
Supplemental Submissions Filed on September 21, 2004” filed on 24 September 2004,
i) the Defence “Additional Submissions Concerning
the Prosecutor’s Conditional Motion for Leave to Amend Indictment and Motion
Objecting in Part to the Form of the Amended Indictment Filed on August 31, 2004” filed on 23 December 2004,
j) the “Prosecutor’s Response to the Additional
Submissions Filed by the Defence on 23 December 2004” filed on 29 December 2004, and
k) the “Defence Reply to Prosecutor’s Response
to the Additional Submissions Filed by the Defence on December 23, 2004” filed on 6 January 2005.
RECALLING the Chamber’s Decisions of 15 October 2003 and of 15 July 2004 (“Decision of 15 October 2003” and “Decision of 15
July 2004”);
NOW DECIDES the
Motion on the basis of the written briefs of the parties pursuant
to Rule 72(A) of the Rules.
Arguments of the Parties
Prosecutor’s Submissions
1. In his Motion, the Prosecutor requests
the Chamber
(i) to declare that the Indictment of 31 August 2004 (the “Recast Indictment”)
does not require leave to amend; or in the alternative
(ii) to grant leave to file the Recast
Indictment as a further Amended Indictment.
2. In support of his motion and in his pleadings
responding to the Defence Counter-Motion and other pleadings, the Prosecutor
submits that all modifications of language and content in the Recast Indictment
are in compliance with the Decision of 15 July 2004.
3. As to Count I, relying on information
contained in the previously filed supporting material, he has specified the
meetings that the Accused and others attended, and detailed the acts that
the Accused and others committed in furtherance of the alleged conspiracy.
However, he has relied on new witness statements to supply the new details
relating to Agathe Kanziga and the meeting at the Gisenyi football field
in mid-April 1994.
4. In response to a challenge by the Defence,
he clarifies that the “various meetings” mentioned in the first sentence
of Paragraph 7 of the Recast Indictment are only the ones that are described
in the witness statements, and accepts that Paragraph 21 of the Recast Indictment
should read like its Paragraph 41.
5. The Prosecutor indicates that he has
given the best information available, and states that further names of victims
and perpetrators and precise locations are contained in several witness statements
which have already been disclosed. He stated that he could insert these in
the relevant Paragraphs if so required.
6. As to Counts II, III, IV, and V, the
Prosecutor asserts that the allegations encompass a second attack on Tutsi
who sought refuge on hills near the Rubaya tea factory. Whereas in the previous
Indictments he alleged only one attack on the Gashihe or Kesho Hill, the
Prosecutor now relies upon a witness who asserts a similar attack on the
surviving Tutsi who sought refuge on the nearby Rurunga Hill. Both attacks
allegedly occurred in the same Secteur and involved the same pattern
of conduct on the part of the Accused. The Prosecutor emphasizes that the
evidence on the second attack imputed to the Accused is highly relevant.
He sees no irreparable prejudice in its admission at this pre-trial stage
of the proceedings. The Prosecutor submits that, according to the Ntakirutimana Appeals
Judgement, the
events at Rurunga Hill ought to be pleaded specifically.
Defence Submissions
7. The Defence requests the Chamber, as
a Counter-Motion,
(i) to declare that there is no need
to apply for leave to file the Recast Indictment;
(ii) to strike from the Recast Indictment
the allegations concerning Rurunga Hill; and moves to strike several Paragraphs
or phrases from the Recast Indictment for non-compliance with the Decision
of 15 July 2004.
8. The Defence submits that the allegation
of an attack on Rurunga Hill in the Recast Indictment is new, there is a
considerable time gap between this attack and the one that was previously
pleaded, and the attacks target different victims at different locations.
The Defence avers that the new allegations would cause undue delay since
they require new investigations. It considers the request to be untimely
and negligent and prays that the Chamber should deny leave to amend the Indictment
with respect to the allegations concerning Rurunga Hill.
9. In its pleadings it argues that no further
amendment should be allowed because on 1 December 2003 the Prosecutor
had promised he would not re-amend the Indictment. He contends that
the Recast Indictment does not fully comply with the Decision of 15 July 2004, and does not
satisfy the requirements set forth in the Ntakirutimana Appeals Judgement.
In particular it contends that the Prosecutor cannot rely upon witness
statements to identify facts that ought to be pleaded in the Indictment.
In this context the Defence renews its request that the Chamber orders the
Prosecutor to indicate the names of all members of the Sekimonyo family and
the Bahoma Tutsi who were killed, and the names of the subordinates of the
Accused.
Deliberations
10. In the Decision of 15
July 2004, the Chamber ordered the Prosecutor to file his Amended Indictment,
implementing specified changes, by 31
August 2004. The required changes included adjustments to or the deletion
of the pleading of personal responsibility and command responsibility pursuant
to Articles 6(1) and (3) of the Statute and joint criminal enterprise. They
also included the insertion of additional facts and increased specificity
with regard to dates and locations to eliminate the vagueness of certain
allegations. The Chamber specifically ruled that the material facts must
be pleaded in the Indictment with sufficient particularity. Following that
Decision, the Prosecutor filed the Recast Indictment on 31 August 2004. Since then, both the Defence and the
Prosecutor filed responsive and ancillary motions and submissions.
11. Paragraphs 7, 14, 15, 34 and 35 of the
Recast Indictment allege an attack against Tutsi at Rurunga Hill. This
is different from the attack against Tutsi on Gashihe or Kesho Hill pleaded
in the Amended Indictment: the two allegations concern different locations,
different times, and – at least to some extent – different victims.
The allegation of a second attack cannot be construed as a precision of the
first attack, as the Prosecutor submits. The Chamber concludes that
the allegation of the attack against Tutsi at Rurunga Hill is new, and that
it is necessary to consider whether to grant leave to include this allegation
in the Recast Indictment.
12. In deciding whether to grant leave
to amend an Indictment pursuant to
Rule 50(A)(ii) of the Rules, the Chamber follows the procedures and applies
the standards set out in Sub-Rules 47(E) and (F) of the Rules. This requires
consideration of the establishment of a prima facie case, issues
of unfair prejudice to the parties, the incidence of undue delay, and other
relevant factors including the diligence of the Prosecutor.
13. The allegation of an attack against Tutsi
at Rurunga Hill is based upon Witness ATM only. Although the probative value
of the testimony cannot be anticipated a factual finding can be based upon
the testimony of only one witness. The Chamber
considers that a prima facie case has been presented.
14. The Chamber notes the Defence submissions
that on 1 December 2003 the Prosecutor declared that he
would not re-amend the Indictment. On 25 March 2004, Witness ATM spoke, during his
second interview, for the first time about an attack against Tutsi at
Rurunga Hill. Given the seriousness of the new assertions, the Prosecutor’s
premature commitment by itself cannot justify the exclusion of this allegation.
It is in the interest of justice to ascertain the truth about serious
charges against an accused. On
the other hand, prejudice to the Accused which could arise from the amendment
can be remedied by giving the Defence additional time for its preparation.
15. The new allegation is highly specific
and as such is not legally or factually complex. The Defence can realistically
be expected to conduct its additional investigations within a reasonable
period of time. In any event, the trial date has not yet been fixed, permitting
adequate time to be granted to the Defence for any further investigation
that may be required. Furthermore, nothing has been presented to suggest
that the Prosecutor acted with negligence by delaying his investigations,
or that he sought a strategic advantage by introducing the new charges belatedly.
At the current stage, the amendment could have no more than a slight impact
on the overall expeditiousness of the proceedings. In the circumstances
the Chamber will grant leave to the Prosecutor to include this allegation
in the Recast Indictment.
16. The Chamber observes an inconsistency
between the date of the attack as pleaded and the date in the supporting
material provided. The Recast Indictment places the attack at an uncertain
date about the second week of April 1994, which would be approximately between
8 and 14 April 1994. On the other hand, the Witness indicates the
second week following President Habyarimana’s death as the time of the attack,
which would be the period between 14 and 20 April 1994. The Prosecutor should rectify
this inconsistency.
17. In its Decision of 15 July 2004, the Chamber
recalled its previous holding and concluded that the pleadings of command
responsibility in the Amended Indictment had not met established criteria because
the Prosecutor had not provided a sufficiently precise factual basis that
the Accused had the possibility to discipline and punish his subordinates
or to prevent their criminal conduct. The
Chamber re-emphasises the need for sufficient factual detail of how the “relationship
in the nature of that of an employer and employee” or
the alleged family ties, implies
the alleged superior responsibility to give rise to a prima facie case
and to permit the Accused to meet the allegation in his defence. The jurisprudence
on Article 6(3) of the Statute, establishes that a superior is one who possesses
effective control through either de jure or de facto power
or authority to prevent a subordinate’s crime or to punish the commission
of a crime by a subordinate after the crime is committed. Hence,
the proper pleading of civilian superior responsibility requires the Prosecutor
to allege a prima facie case that the accused exercised effective
control over his subordinates.
As the ICTY Appeals Chamber stated in the Čelebići Appeal
Judgement: “[...] it is necessary to look to effective exercise of power
or control and not to formal titles.”
18. The Chamber notes that, in the Musema Trial,
the contention that command responsibility could be found on the basis of
Musema’s position as a local “…figure of authority and as someone who wielded
considerable power in the region…” was rejected. Yet
the Trial Chamber had considered the issue of whether a socially and politically
prominent person could be found to incur superior responsibility as a result
of “psychological pressure.” It had also reviewed the Herman Roechling Judgementin which
the family relationship – that of being a son-in-law of a powerful figure – was
sufficient to give rise to superior responsibility on the facts of the case.
19. In the Recast Indictment, however, there
is still insufficient factual basis to support the contention that the Accused
had the possibility to discipline and punish his alleged subordinates or
prevent their criminal conduct. The Chamber observes that, whenever the Prosecutor
pleads command responsibility, he
refers to personal, individual activities of the Accused. The
charges are buttressed by allegations that the Accused led armed convoys,
ordered and instigated other perpetrators, paid certain persons for committing
particular acts, etc. Thus, the Prosecutor supports command responsibility
by allegations of the Accused’s active participation. However, charges of
command responsibility seek to establish the responsibility for omissions:
where command responsibility is rightfully pleaded, an accused is held responsible
for having failed to take necessary and reasonable measures to prevent certain
acts, or for having failed to punish the perpetrators thereof. Where subordinates
are alleged to have followed the orders of an accused, the charge is not
one of command responsibility pursuant to Article 6(3) of the Statute.
20. The Chamber concludes that, in the Recast
Indictment, the factual allegations do not sufficiently support the pleading
of command responsibility, and recalls that this is the third time that the
Prosecution has failed to provide sufficient support to such pleading. Providing
a further opportunity would cause unfair prejudice to the Defence. In the
Decision of 15 July 2004 the Prosecutor was ordered
to omit references to command responsibility if he could not support them
with specific facts. That decision causes no prejudice to the Prosecutor
since the pleading of command responsibility is supported by the same
facts pleaded in support of charges of individual responsibility, and should
be implemented with respect to Counts II to V.
21. The Chamber notes that when Paragraphs
11, 16-17, 25-26, 29-30, 36-37, 45-46,
50-51, 53-54, 57-58 are read in conjunction with other Paragraphs providing
details of the factual allegations, the Prosecutor has complied in all other
respects with the Decision of 15 July 2004, requiring him to state the
different forms of participation in the crimes alleged, and in particular
with regard to the pleading of personal responsibility and the nature and
purpose of the joint criminal enterprise alleged.
22. The requirement to insert additional facts
and increased specificity with regard to dates and locations to eliminate
the vagueness of certain allegations has been addressed. In Paragraph
3, the Prosecutor has implemented the Chamber’s Order to buttress, the allegations
regarding the social position of the Accused in Rwanda in
1994. In Paragraph 8 the Prosecutor has implemented the Chamber’s Order to
support the charges of a conspiracy between the Accused and Agathe Kanziga
with a factual basis. In
Paragraph 7 the Prosecutor has implemented the Chamber’s Order to indicate
dates and locations of meetings. The Paragraph also informs the Defence
about the material facts underpinning the charges. The Chamber concludes
that the Defence request for further particulars on the meetings pleaded
in Paragraph 7 is unjustified. In Paragraph 41 the requirement to specify
the dates Interahamwe were paid to dig a mass grave known as “the pit” has
been implemented, and the precision of time contained in Paragraph 41 applies
to all other occurrences of the identical allegation. The Chamber recalls
and reaffirms its previous holding that the Defence does not require the
names of the victims of the Sekimonyo family and the Bahoma Tutsi clan in
order to adequately prepare its defence. However,
in the context of the Prosecutor’s assertion that he disclosed some names
of unprotected victims and co-perpetrators in witness statements, the Chamber
recalls that the disclosure of witness statements does not give the Accused
sufficient notice of specific charges against him. In the Ntakirutimana Appeals
Judgement, it was recognized that this type of information is useful in the
preparation of the defence. The
names and related details in the possession of the Prosecutor should therefore
be inserted in the relevant Paragraphs.
23. Paragraphs 19-23 and 39-43 of the Recast
Indictment raise allegations that the Accused was involved in the setting
up and manning of roadblocks next to his residence in Giciye commune and
on “La Corniche” Roadway. The Chamber finds that sufficient information about
the roadblocks and the related events have been provided to enable the defence
preparation. The gendarmes, guards, customs officers, etc. allegedly manning
the roadblocks are suitably identified by their status, presence at a specific
place at a specific time, and the functions they allegedly exercised at these
locations. The names of the individuals manning the roadblocks are not necessary
in order to enable the Defence to adequately prepare its case. The Chamber
concludes that Paragraphs 19-23 and 39-43 of the Recast Indictment give the
Defence fair and sufficient notice of the case it will face at trial with
respect to the involvement of the Accused in the setting up and manning of
roadblocks.
For the above mentioned reasons, the Chamber
I. GRANTS the Prosecutor
leave to file an Indictment that includes the allegation of an attack against
Tutsi at Rurunga Hill under the conditions set out below.
II. ORDERS the Prosecutor:
(1) with respect to Counts II
to IV, either to
strike Paragraphs 14, 15, 34 and 35 from the Recast Indictment or to
plead a date of the alleged attack on Tutsi at Rurunga Hill which
is consistent with the submitted supportive material;
(2) with respect to Counts II to V,
to strike from the Recast Indictment all references to command responsibility,
in particular Paragraphs 17, 26, 30, 37, 46, 51, 54, and 58; and
(3) to insert the names of unprotected
witnesses in the relevant Paragraphs as stated in Paragraph 25 above, or
to attach a schedule of particulars containing those names if there are
more than ten.
III. ORDERS the Prosecutor to
file the Indictment amended and corrected as per the two previous orders
within seven (7) days from the service of this Decision.
IV. DENIES the remainder of
the Defence Counter-Motion.
Arusha, 2 March 2005, done in English. |
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Dennis C. M. Byron |
Emile Francis Short |
Gberdao Gustave Kam |
Presiding Judge |
Judge |
Judge |
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[Seal of the Tribunal] |
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