International Criminal Tribunal for Rwanda (ICTR)
Impossible Justice

Introduction *

I - Absence of independence of the Tribunal and of impartiality of the Judges *

II - Absence of equity on the part of the Tribunal *

III - Constant violations of the established Rules *

IV - Unjustified recourse to chapter VII of the UN Charter during the creation of the ICTR *

V - Mission impossible for the International Criminal Tribunal for Rwanda *

VI - Crushed justice *

VII - Impossibility of just and equitable trials *

VIII - Just and equitable trial impossible in my case. *

IX- Revenge or reconciliation  *

X - My unwavering wish to appear before justice *

1. It is about August 1994, at the moment when I started to gather the source data for the drafting of my book « Le Sang Hutu is it Rouge " 1 , that I was informed of a project of creation, by the United Nations, of an International Criminal Tribunal for Rwanda. I discussed this subject, on September 12, 1994, in company of some other refugees, with the Commission of Experts of the United Nations2, who stayed for a few hours in Goma (Zaire). We all of us supported this idea but insisted that the Commission make its investigations with the mass of refugees of which much had been witnesses or victims of the serious violations of the humanitarian international law which had just taken place in Rwanda. Later, on November 01, 1994, I wrote and sent a letter on this subject to the President of the Commission of Experts, in Geneva.

3. In my letter to the President of the Commission of Experts, I wrote the following:  "Many of my compatriots welcomed with relief your recommendation to institute an International Tribunal designed to try crimes committed in Rwanda during the war named after " War of October  ". Indeed, we believe that only a neutral International Tribunal can conduct a neutral and impartial trial "4.

4. Rwandans, and particularly the Hutu refugees, had placed much hopes in the International Criminal Tribunal for Rwanda. They had hoped that this the United Nations institution was going finally to carry out investigations more exhaustive, less partial, and, therefore, less partisan, compared to those carried out particularly by the United Nations Commission of Experts and by the Special Rapporteur for Rwanda, Mr. René Degni Segui5. The latter, just like the Commission of Experts, never carried out investigations in the zone occupied by FPR in 1994, nor in the Hutu refugees camps. It is significant to stress that these are the reports, rather incomplete, partial and partisan, which justified theestablishment of the International Criminal Tribunal for Rwanda in unusual ways.

5. The Hutu refugees thus had  " full confidence in the neutrality and the independence of this Tribunal which... was to prevent that international repression " degenerates into a primitive revenge  ", according to the expression used by Jacques Bernard Herzog. International justice must be the rampart "  against the tradition and the temptation of reprisals" 6.

11. The Members of the Security Council insisted on the independence and the impartiality of the Tribunal during the examination of the resolution establishing it8:

13. The way the Tribunal was created prevents it from being independent. Indeed, although the ICTR was created in violation of the UN Charter by a nonqualified organ, the Security Council, the permanent Member of the Security Council accepted its installation effective and its operation in spite of the violation of the Charter only insofar as its powerful sponsors could control its operation in order to take care of the implementation of the objectives which they assigned to it9. It is known that it is because the United States could not impose their view which tended to control the International criminal tribunal in particular the action of the Prosecutor, that they refused to sign, July 17, 1998, the bearing Treaty of Rome creation of this Tribunal10.

14. In addition, when one analyzes the lived experiment of more or less 5 years of the ICTR operation, one realizes that venom was in the fruit since the beginning. Indeed, it is illusory to think that a judge enjoying an renewable elective mandate of four years11 can take an action independent of the will of his voters. If he intends to be re-elected, he will do every thing to take decisions consistent with their actual wishes or with the eventual mission entrusted to him at the beginning. The feeling which arises from the action of the ICTR is precisely that Judges do nothing but to achieve missions which were entrusted to them while following the directives regularly updated during the relevant meetings of the Security Council or through the United Nations Secretary General's services. When the judicious standards to governing this Tribunal enter in contradiction with these missions, they are modified or purely and simply violated. The Decision of March 31, 2000 of the Appeals Chamber to review its former decision to release me following the enormous pressures emanating from the Rwandan Government and from several powerful political circles, constitutes in that an illustrative case.

15. As soon as the Rwandan Government opposed the 3 November 1999 Decision on my release, it obtained unexpected supports emanating from the Office of the Secretary-General of the United Nations. Thus, the Spokesman of the Secretary-general, Mr. Fred Eckhard exclaimed on November 5, 1999, saying: " What about the human rights of his victim? 12. This declaration expresses a direct support for the position of the Government of Rwanda and an undeniable contempt of the rights of the defendant. It is a clear evidence that the Secretary General of the United Nations does not feel obliged to respect the principle of presumption of innocence however devoted by the Statute creating the ICTR (art.20.3). Actually, as long as the defendant was not recognized guilty following a just and equitable trial, it is not right to speaking about " its victims ~ ". That concerns rather slandering or the presumption culpability -principle not recognized in criminal law.

18. When the Appeals Chamber decided, on November 3, 1999, to release me, the Government of Rwanda suspended its co-operation with the Tribunal by specifying that the resumption of this co-operation will not be possible unless the Tribunal is committed to review its decision. The case was largely was made the focus of a big media attention under the of the Prosecutor, Mrs Carla Del Ponte, who has not spared any means to give satisfaction to the government of Kigali "13. She tried to go to Kigali but the Rwandan Government required guarantees of review of the Decision of November 3, 1999 before authorizing her to go to Rwanda. The Rwandan Minister of justice, Jean de Dieu Mucyo, has, declared in a letter: " Ms del Ponte wouldnot be welcome unless the Tribunal reversed its decision and went ahead with Mr. Barayagwiza trial "14.

20. But in spite of that, the Rwandan government continued to refuse the visa to Mrs Carla Del Ponte15. The Special Representative of Rwanda at the ICTR, Mr. Martin Ngoga declared as follows, on this subject: "... the visa refusal was part of the decision to suspend co-operation with the Tribunal and that Del Ponte' s visit was not necessary "16.

21. In meantime, the Appeals Chamber decided to postpone the execution of the Decision of November 3, 1999 and to maintain the appellant in detention17. Judges thus granted their support for the bargaining between the Prosecutor and the Rwandan Government. Mrs Carla Del Ponte then asked the Government of Kigali to take into account the new developments and to grant her a visa so that she could go to her Office in Kigali.

22. On November 28, 1999, she publicly announced her opposition to the decision of the Appeals Chamber to release me. She assured the Rwandan authorities and the "  victims  " that she was going to do everything possible to obtain the review of the decision. She, since then, insisted that she be authorized to go to Kigali. She declared that she would take opportunity of this visit to reveal her strategy to the authorities of Rwanda. It is in this context that she decided to support the request of the Rwandan Government to appear in the capacity as Amicus Curiae. By concluding her declaration, the Prosecutor, Mrs Carla Del Ponte, said that "  she devoted the highest priority to the revision of the Appeals Chamber decision" 18 . It emerges from this declaration that the Prosecutor actually haggled with the Rwandan government, offering the revision of the Decision of 3 November 1999 on my release for the visa and the improvement of atmosphere of co-operation between Rwanda and the ICTR.

24. The Prosecutor thus agreed with the Rwandan Government to make pressure on the Appeals Chamber and its Judges so that theyreconsider their Decision of November 3, 1999. This agreement reached its climax at the time of the hearing of February 22, 2000 devoted to the Prosecutor's motion for review or reconsideration of the Decision of November 3, 1999. Indeed, the two partners were unanimous to threaten the Tribunal and to make an unacceptable blackmail against the Judges by saying that if the latter do not reconsider their decision to release me, the Tribunal would cease functioning. Mrs Carla Del Ponte said it in following terms: "... it should be taken into account that the Government of... of the government of Rwanda depends our possibility of continuing our investigations, and to hold trials. Thus, the reality which arises is that: or Barayagwiza will be judged by this Tribunal, but the other solution which you have, is that Barayagwiza either be given to the State of Rwanda, Barayagwiza be given to his "  judis naturalis  " to his natural judge. Otherwise, I fear, like one also says in italian : possiamo chiudere la baracca one can close the door and open that of the prison, and there, the government of Rwanda does not have nothing to do"19. The threat from Rwandan Government as expressed by its Representative, the Attorney General, Mr Gerard Gahima, could not be more explicit. According to him, "... if the Appellant was released by this Tribunal or if he were not given to another competent Tribunal... that would have an impact also on the efforts of Rwanda to maintain peace, limit the reconciliation of the Rwandan people. A decision of this type would also carry damage to the Tribunal, which would not enjoy any more support, confidence, from the Rwandan people... "20.

32. According to many other reports, in particular those of Amnesty International and those of the United Nations Agencies, like the HCR (Gersonny Report), to these categories of persons mentioned in the preliminary report of Rene Degni Segui21, should be added the following categories:

35. The ICTR supports impunity and injustice in other blatant forms, inter alia, the dissimulation of reports orinformation accusing the RPF, and its accomplices. In this connection, let us mention that the Secretary General of the United Nations put under embargo the Gersony report which accuses the persons in charge of RPF to have made systematic massacres against populations belonging to the Hutu ethnic group targeted as such, in particular in the eastern part of Rwanda, during the first months of the 1994war. He also dissimulated a report of an investigator from the Office of the Prosecutor, written by Mr. Michael Hourigan, accusing the RPF to have planned and carried out the attack against the plane of President Habyarimana22.

36. On its side, the Tribunal seems to support this policy of dissimulation of information interesting the defence. Thus, the President of the Tribunal put under embargo23 the report of Mr. Michael Hourigan as soon as she received it from the Secretary General of the United Nations, whereas the defence Counsels had wished that the report be made public and placed at the free disposal of the defendants. This report can only be obtained following a request that the Chamber can satisfy or not24. Besides, the Tribunal refuses until now, to answer positively accused persons at ICTR, who claim an exhaustive investigation into the assassination of President Habyarimana, assassination considered by all as the act which triggered the Rwandan catastrophe. Certain Judges even tend to acceptthe thesis of the Prosecutor according to whom there would be no nexus between this assassination and the politico-ethnic massacres which followed it immediately25. The Prosecutor affirms even that this case does not fall into the jurisdiction of the Tribunal26.

37. The presumption of culpability at the place of the political leaders Hutu belongs to the policy of charge of the Prosecutor. The declarations of the Persons in charge for the Office of the Prosecutor in the medias or during the audiences with the Tribunal confirm this policy. Thus, for the ICTR Prosecutor, Mrs. Carla LED Bridges, I am guilty even before to have been the subject of any judgement " ~ I will never cease repeating it, Barayagwiza is guilty "27

38. So the charge estimates that there cannot be elements disculpatoires for the defendants of the ICTR. It does not try hard to collect them, during its investigations. It makes even its possible to draw aside them, more especially as it does not have obligation to inquire as well with load as with discharge. That gives the impression that the mission of the ICTR Prosecutor is to make condemn all the defendants. It is not interested in the question of knowing if amongthem there are the innocent ones. Certain Judges even encourage it to actually dissimulate useful information for defense28 the Prosecutor does not seek to know the truth. He married the cause of the supposed victim or his defenders. He took part before being even persuaded of the good cause by impartial investigations. Its investigations only aim at proving, by all the means, that the defendant is guilty even if the reality of the crime is not obvious. The culprit is designated in advance.

42. The Judges use also this blank check to try to set up principles of new law not recognized by the current systems of law under pretext that the law applied to the ICTR arises neither from Common Law neither from the romano-Germanic system, nor from the existing international law. However, like the Representative of Argentina during the creation of the ICTR declared " it is clear that having been instituted as a special body, this Tribunal is not entitled to establish standards of international law nor to legislate relatively to this law, but to apply the existent international law "29. The fact that the Judges of the ICTR often deviate in their judgements 30 from the existing principles of law thus constitutes, in itself, an abuse of competence and reinforces the idea according to which the rules governing this Tribunal were cut to measure and are constantly adapted, not to make justice, but to condemn all the Defendants before it, in fact, the Hutu leaders.

45. It is essential to point out finally that the Tribunal recently admitted the appointment of a representative of the Rwandan Government at the ICTR in spite of the concerns expressed by the defendants31 and by their Lawyers who announced that this nomination was not authorized by any provision of the Statute nor by the Rules of the Tribunal. They rather see there an unacceptable interference of Rwanda in the judicial process of the Tribunal32. Moreover, the appointed person, namely, Mr. Martin Ngoga did not hide his intention to influence the Tribunal from within. He was very clear on this subject, in his various declarations in the media: « I hope to exert influence on the Tribunal in order to improve its performance...   "33. [... ]."  We made the decision not more to bewitness but to join the Tribunal and to operate from with in...   "34. Besides, this interference was not long in being concretised in my case. The government of Rwanda took pretext, inter alia, of the statute of Amicus Curiae obtained under irregular conditions (Defence did not have the possibility of putting forward its opinion before the decision of the Appeals Chamber on this subject ; then Amicus Curiae was granted whereas the question concerned, namely my handing-over to Cameroon, was not on the agenda), to make pressure and threats on the Appeals Chamber35 so that it reconsiders its decision of 3 November 1999 on my release. These pressure and threats bore their fruit since the Appeals Chamber revised, on March 31, 2000, its decision in the direction required by the Rwandan Government supported firmly by the ICTR Prosecutor.

46. The Judges of the International criminal tribunal for Rwanda have, in several cases, interpreted certain articles of the Statute and of the Rules of procedure and evidence36 in a too broad way to the detriment of defence, contrary to the principle which wants that, in criminal law, interpretation is restrictive.

49. Article 5 of the Statute stipulates that the ICTR "  shall have jurisdiction over natural persons  ". And yet, in several cases, some Chambers of the Tribunal adopted the Prosecutor's position of accusing defendants of being responsible for crimes imputed to institutions because of their membership at these institutions. Thus, the Judges have "  accepted  "37 or straightforwardly "  confirmed  "38 indictments going in this direction.

50. The Chambers of the Tribunal in addition admitted, in several cases that individuals could be held responsible for crimes possibly committed by communities, associations, groupings of people or by institutions, in violation of article 6 of the Statute which reaffirms the principle of "  individual criminal responsibility ". However, practically all indictments confirmed by Judges of this Tribunal charges the defendants concernedwith crimes imputed to political parties, private associations or to commercial companies of which they take part or of which they were founding members or shareholders. Indeed, the basic proof of the responsibility of the defendant concerned do not stem from actions or omissions which are personally reproached to him but stem from membership to such or such accused organization. This situation is illustrated by the indictment of the so-called « Political group  "39, the "  Military group  "40 or the "  Media group  "41 The principal reproach made against the politicians, is that they  belonged to the Interim Government to or to the so-called  "  extremist  " or "power" political parties accused to have organized and carried out the "  tutsi  genocide " in collaboration with the soldiers and the "  militias Hutu.  " As for the militaries, they belong to old "  Forces Armées Rwandaises  " accused to have carried out the "  tutsi genocide  " and to have collaborated with the "  Hutu  militias " with this intention. The persons accused within the framework of the medias, are accused mainly to have perpetrated crimes, in particular by the creation or the membership of these medias, in fact the newspaper Kangura and the rtlm, which are charged to be at the origin of the broadcast of the  "  hutu extremist  ideology " and to have incited the hutu population to commit "  genocide  " against Tutsi,.

51. It is because of this abusive and illegal interpretation articles 5 and 6 that I am held responsible for several crimes, for being a founding member of CDR political party42 and having participated in the creation of the RTLM43 company as far as its Radio. The Prosecutor also charges me with crimes which would have been committed by the whole membership of CDR and MRND44 and particularly by young people belonging to these parties. My request for the suppression of charges based on crimes charged to institutions was rejected by Chamber I in violation of article 5 and 15.1 of the Statute of the Tribunal.

53. The declarations of the Representatives of the Member States of the Security Council were rather explicit on the temporal limits of the jurisdiction of this Tribunal at the meeting during which resolution 955 creating the ICTR was adopted. One can be satisfied with the following declarations45:

54. For its part, in his report of February 13, 1995, the Secretary General of the United Nations confirmed this temporal limit. He wrote as follows: " The temporal jurisdiction of the Tribunal is limited to one year, beginning on 1 January, 1994 and ending on 31, December 1994. Although the crash of the aircraft carrying the Presidents of Rwanda and Burundi one 6 April 1994 is considered to be the event that triggered the war and the acts of genocide that followed, the Council decided that the temporal jurisdiction of the Tribunal would commence on 1 January 1994, in order to captures the planning stage of the crimes." 46

56. However, despite all these precise details, the Judges of the Tribunal continue to accept indictments from the Prosecutor comprising of facts impute to accused while being situated outside the temporal limits defined by the Statute47. The Judges systematically refuse to subject this question to debate in order to avoid systematically to reject the indictments filed by the Prosecutor and derogating all to temporal jurisdiction of the Tribunal. Thus, their decisions confirming the indictment or authorizing the amendments submitted by the Prosecutor, are not sufficiently justified with regard to this question of temporal jurisdiction. The Judges are satisfied the Prosecutor's assertion according to which he refers to facts outside the period of competence of the Tribunal for "  by way of introduction  ". According to the judges of the appeals Chamber, the Chamber of first instance which retained the references of the Prosecutor to the crimes committed before by the defendant "  by way of historical background or by way of information  "48 The Judges thus systematically refuse to consider the Defence arguments which show that the majority of the Prosecutor's allegations constitute autonomous crimes for which the defendants are accused49.

60. Several cases of violations remained unpunished, in particular those related to irregular procedures of arrests. The most obvious case is that of Mr. Esdras Twagirimana arrested in Nairobi, July 18, 1997, during operation known as NAKI. He was takenfor Shalom Ntahobari but was maintained in illegal detention for two months after the arrest of the latter. The Prosecutor was never blamed for that. In fact, the right to defense was denied to Mr. Esdras Twagirimana. Besides, he was arrested by the Kenyane police force, his country of asylum, as soon as the ICTR Prosecutor released him. Amnesty International denounced this case in one of its reports50.

61. Several other violations were subject of complaint before the Tribunal but without the Prosecutor suffering the least reproach even when Judges recognized his responsibility51. In my case, the Prosecutor was severely sanctioned by the Decision of November 3, 1999. But, the Appeals Chamber was forced to reconsider its own decision, in its Decision of March 31, 2000, following enormous political pressure. Although the violations of the fundamental rights of the interested party were recognized in both Decisions, the Prosecutor could escape any sanction. Worse, the Appeals Chamber refused to examine the request for revision of its Decision of March 31, 2000, based, according to results' of the investigations of my Lead Counsel, on documents falsified or obtained fraudulently by the Prosecutor52.

62. The question relating to the abusive and abusive interpretation of the Statute and the Rules of procedure was analysed above. It should be noted that most of the time, the Judges do nothing but adopt the position stated by the Prosecutor. They do not dare to contradict him, except in really rare cases. A Judge, in fact, Judge Taffazzal Hossain Khan has, the first, dared to be opposed, in a significant case, with his interpretation of certain articles of the Statute and Rule of the Tribunal. He has, by his decision of 31 March 1998, refused to accept the views of the Prosecutor on the interpretation of articles 15, 18.1, 19.1, 20.4 (c) of the Statute, and rules 47, 50 and 62 of the Rules of procedure and evidence in the case of Bagosora and the 28 others53. The Appeals Chamber confirmed this decision54 of Judge Khan55.

63. The second significant case in which Judges dared to be opposed to the erroneous interpretation by the Prosecutor of certain provisions of the Statute and Rules, it is in my case. Indeed, by its Decision of November 3, 1999, the Appeals Chamber dismissed the Prosecutor's interpretation in particular concerning articles 8, 17, 19, 20, and 28 of the Statute, and rules 40, 40 bis, 47, 50 and 62 of the Rules of procedure and evidence of the Tribunal56. However, following political pressure and blackmail emanating from the Rwandan Government supported firmly by the Prosecutor, the Decision of November 3, 1999 was revised on the basis of incorrect information or distort provided by the Prosecutor and following erroneous interpretation of these facts in connection with the Statute (art.25) and the Rules of procedure and evidence (rules.120 and 121) and the absence of diligence on the part of the Prosecutor57.

64. On several occasions, the Prosecutor refused to carry out the decisions of the Chambers but no sanction was inflicted to him. In rare cases where the Judges made decisions of littleimportance favourable to Defence and opposing the Prosecutor, the latter has always refused to implement them, either by ignoring them superbly, or by requiring the stay of execution until it finds the means of making them null and void in particular bymaking amendments at the right moment. For example, in the case the Prosecutor against Ferdinand Nahimana - ICTR-96-11-I, - the Prosecutor refused to carry out the decisions of Chamber I imposing to him the modifications of the indictment until he asked the amendment of that indictment which made null and void the decisions taken58. The same scenario reproduced in other cases in particular, in the case the Prosecutor against Aloys Ntabakuze in relation with the return of seized objects and which are not necessary any more for the investigation59.

65. However sanctions were inflicted to the Councils of Defence, not for violation of the law, but under pretext that they have deposited inadmissible or abusive motions. Actually, it is to intimidate them and to prevent them from ensuring full and whole defence to their clients.In the case the Prosecutor against George Rutaganda -ICTR-96-3-T, the Chamber judged that the committed expenses "  in the framework of the preparation and the development of an obviously inadmissible motion are neither necessary nor reasonable  ". The judges drew the attention of the Registrar's office on the matter so that it took appropriate measures60. Later, to legalize this form of intimidation to defence, the Judges adopted, at the time of their VII Full Session, a rule sanctioning the Counsels of Defence for motions considered to be abusive61. Thus, Me Clement Monteroso, the Council of Aloys Ntabakuze (ICTR-97-34-I), were sanctioned to him on several occasions for requests considered to be abusive on the basis of retroactive decision in violation of rule 6 (C) of the Rules62.

66. One of my Counsels, himself was sanctioned for a motion considered to be inappropriate by the Judges of Chamber I. On the Prosecutor's request, the Judges admitted that the motion presented by my defence in relation with the jurisdiction has been filed a second time, without reason, while decisions have already made on the matter by the Chamber of first instance and by the Appeals Chamber. Their decision ignored new elements, which had not been decided on, presented by defence relatively, inter alia, to the jurisdiction rationae personae.63 However the Chamber of first instance rejected the challenge of the honesty of the Prosecutor Bernard Muna whom my defence accuses to have given to the Appeals Chamber falsified documents or documents obtained under fraudulent conditions. On its side, the Appeals Chamber refused to examine these charges against Mr. Bernard Muna and his collaborators while rejecting, without examination in its, my motion for review and/or re-consideration of the Decision of March 31, 2000.

67. The Statute of the Tribunal devotes, in its article 20.1, the equality of the parties to the trial. It is thus supposed that the Prosecutor and the defendant, are equal before the Tribunal.However reality is completely different. As an organ of the Tribunal, the Prosecutor collaborates narrowly with the Judges of the Tribunal. It is significant to note that, for this reason, he takes an active part in the creation of the rules of procedure in particular by amendments (Article 6 of the Rules) among which one great part are initiated by its Office. That possibility is not recognized to the Defence. This legislative function makes it possible to the Prosecutor to influence the orientation of the law which governs the proceedings, which puts him in position of force compared to the Defence. This inequality is all the more prejudicial to the defence as the Prosecutor does not have the express obligation to investigate for charge as well as for discharge. It worth to note that he even refuses, in practice, to carry out the obligation to disclose information in his possession interesting defence, in accordance with rule 68 of the Rules of procedure and evidence. He always requires that the interested defendant give initially the proof of the existence of such information or that he establishes the existing nexus between this information and his trial. Thus, Chamber III, refused to order to the Prosecutor to make additional investigations concerning the attack against the plane of President Habyarimana pretending that Defence had not established the existing nexus between this attack and the trial of Mr. Gratien Kabiligi64.

71. The request in HABEAS CORPUS never received answer on behalf of the Prosecutor. Consequently, no Chamber of the Tribunal considered it. One month after the filing of the motion by Defence, the Registrar's office withdrew it from the list of pendingmotions and did not think any more of reprogramming it. That was the subject of appeal by my defence. The Appeals Chamber recognized, in its Decision of November 3, 1999, that the rights of the Appellant were violated and sanctioned for that the Prosecutor65, whereas the Chamber of first instance had not done anything in spite of the complaints of the defence. However, the Decision of March 31 2000 reduced to nothing the imposed sanction on November 3, 1999.

74. Concerning the three other motions enumerated above, in fact, the motion on defects in the form66, on disclosure67and on precision of the terms and expressions, the Chamber of first instance I, while recognizing that the Prosecutor did not file any answer several months after their deposit by defence, preferred to sanction the defendant rather than to sanction he who violated the practice of the Tribunal and thus contributed to the undue delays in the proceedings.

76. The presentation of certain motions is subjected to deadlines. It is the case, in particular, for the preliminary motions which, according to rule 72, A), "  shall be brought within thirty days following disclosure by the Prosecutor to the defence all the material envisaged by rule 66 (A) (i)  ". The time required for appeal of an objection based on lack of jurisdiction is 7 days (rule 72, E). The experiment showed that the Prosecutor almost does not respect his obligations with regard to the time-limits for disclosure. But he is never subject of sanction. On the other hand, when the defendant does not respect the deadlines, sometimes for reasons independent of its will, he is often sanctioned. His motions are purely and simply dismissed and the benefit to present preliminary motions iswithdrawn out of hand68. Sometimes even, the Prosecutor intervenes by giving false information to the Chambers to influence the decision of the Judges. Thus, the Appeals Chamber dismissed the appeals of Joseph Kanyabashi69 and Samuel Imanishimwe70 on the basis of inaccurate dates. This inequality of the parties is unfortunately enshrined in the rule 72, F which provides for sanction only against the defendant.

77. The disclosure of the documents or evidence by the Prosecutor is governed by imperative time-limit (rules 66 , 68 and 73 (bis)). However, the Prosecutor seldom respects his obligations. But, he never undergoes any sanction whereas defence suffer a prejudice that, often, the Chamber refuses to take into account. Sometimes the Chambers satisfy themselves with the mere fact of drawing the attention of the Prosecutor to his obligations or they adjourn the examination of the cases registered for hearing71.

78. In addition, the Prosecutor, being based on the opinion prejudicial to the accused according to which his investigations are permanent, allows himself to violate the obligations of disclosure of the witnesses or testimonies according to modalities envisaged in rule 66. For him, the 60 days deadline required for disclosure of the witnesses before the beginning of the trial, does not seem to be imperative. According to his interpretation, this time can be compensated while utilizing on a later date the witnesses disclosed outside the time-limit. It follows thus a prolongation of the trial which does not take into consideration the damage caused to the defendant. The conflict which occurred, on this subject, in the case of the Prosecutor against Ignace Bagilishema (ICTR-95-1A-T), is very instructive72.

79. It is obvious that the delays in the disclosure of evidence by the Prosecutor causes a serious damage to accused who are sometimes deprived of their right to have enough time for preparation of their defence (Article 20.4, b)). This question was discussed during several days in the case known as of the "  media case  ". However, the Judges refused to sanction the Prosecutor whereas the delays in the disclosure of the materials and evidence were obvious73.

81. It should be noted, in addition, thatthe press releases emanating from the Registrar's office of the Tribunal are always unbalanced in favour of the Accusation. Sometimes even, the spokesman of the Tribunal sides with the Prosecutor against the Defendants who are regarded as convicted before the judgement74. Sometimes, moreover, the Registrar's office does not hesitate to violate the rules and practice of the Tribunal to satisfy the Accusation in particular by making a broad publicity of the decisions of the Tribunal favourable to the Prosecutor75 whereas those which are favourable to the Defendants are subject of little attention76.

82. The Prosecutor often benefits from his promiscuity with the Judges. Thus, the latter tend to reject the defence motions unfavourable for him whereas they accept without many difficulties almost all motions emanating from the Prosecutor. When the latter has difficulties to get unfounded motions admitted, he resorts to blackmail by accusing the Judges of preventing him from achieving his mandate. If in the Bagosora case and the 28 others, the Appeals Chamber did not yield to the blackmail of the Prosecutor77, in my case, the Appeals Chamber was sensitive to the warnings contained in his motion for review of the Decision of November 3, 199978. It has, indeed, by its decision of 31 March 2000, acceded to the request to maintain me in detention in spite of the recognized systematic violation of my fundamental rights, in order to facilitate the Prosecutor achieve his "  mission  ".

83. Recently, the Registrar crossed the limit of tolerable by promising advantages to the "victims " who would agree to come to testify for the Prosecutor against the defendants in Arusha. He made a statement in this direction during his recent visit to Rwanda where he inaugurated, on September 26, 2000, in Commune Taba, Prefecture of Gitarama, " a program of reparation intended for the victims  ". The Official statement published on this subject by the Tribunal precises that this program will be extended to "   other Prefectures where the Tribunal identified witnesses or potential witnesses "79 As it is known that only Tutsi are regarded as "  victims  " and that only Prosecutor's witnesses come from Rwanda, one understands that this program is intended only for Tutsi who will come to testify against Hutu in Arusha.

85. This program surely will encourage associations of informers which train and enrol people intended to give false testimonies and whose harmful action is denounced in the report of the Rwandan League for the Promotion of the Defence of the Human Right (LIPRODHOR) made public in July 200080.

86. It is significant to stress that the tutsi organization IBUKA which set itself as the defender of the "  victims  ", is the first trainer and supplier of false-witnesses. It violently ran up, at the time of one of its known actions of false evidence, against the RPF leaders who took to the defence of one their members belonging to the Hutu ethnic group whom organization IBUKA had accused as a "  génocidaire  " through its "  false-witnesses  ". In a very hard official statement clearly aiming at associations of informers, and especially at IBUKA , RPF stigmatised the harmful effect from such acts and threatened persons guilty of such intrigues to undergo the appropriate punishments. 81

87. It is thus incomprehensible and unacceptable that the ICTR be found guilty of encouraging associations of informers and of complicity of subornation of witnesses to the detriment of the defence of accused at the time when Rwandan political leaders denounce themselves this phenomenon. It comes out from that, in any case, that the Prosecutor's witnesses the coming from Rwanda cannot be reliable for an impartial observer. Unfortunately, the Judges of this Tribunal do not bother to take with serious the complaints from the defence. It is enough to refer, inter alia, to the trial of Jean Paul Akayesu82 and George Rutaganda83.

90. The Prosecutor has, like all the other organs of the Tribunal, the obligation to respect the Statute and the Rules of procedure and evidence. However, several cases of violation of these legal instruments, within the framework of its co-operation in particular with the States, count amongst Prosecutor's failures (illegal and arbitrary arrests, inhuman or degrading treatments). Certain States collaborates honestly with the Prosecutor of the Tribunal by accepting even violation of their own laws and procedures or violation of the fundamental rights of the suspects. They are induced in error by the official from the Prosecutor's office who do not respect the rights of the suspects while taking refuge behind the idea saying that as long as these suspects were not transferred, the Tribunal does not take any responsibility in their connection84. And yet, the humanitarian law and the human rights must be respected by everyone and everywhere.

91. Sometimes the Prosecutor conspires with States in order to question the rights of the defendant. The most obvious case is that which precisely relates to me in which the complicity of the Prosecutor with the regime of Kigali to make pressure on the Appeals Chamber so that it reconsiders its decision to severely sanction the systematic violation, by the Prosecutor, of the fundamental rights of the defendant, caused a scandal which undermined the credibility of this Tribunal85. Close relations maintained by the Prosecutor with states can lead to a certain dependency prejudicial to his mission of investigation in the interest of the truth and not in the interest of the concerned state.

92. It should be recognized that the Judges themselves, in the name of good co-operation of the Tribunal with Rwanda, inter alia, undertake actions which undermine their independence and their credibility. Thus, the visit to Rwanda by the Judges of the Tribunal under the leadership of Mrs Navanethem Pillay, President of the ICTR, was considered by the defendants as the illustration of the partiality of the Judges of this Tribunal and as an attack on their independence and on their credibility86.

94. The Prosecutor, Mrs Carla del Ponte, took the practice of making the trial proceedings in the Tribunal the focus of the media attention to the detriment of the defence rights. Thus, in violation of the presumption of innocence, she declared on several occasions before the international press and the public, that the defendants of the ICTR are criminals and that they are guilty, even before the judgement. The Judges of the Tribunal did not want to sanction this attitude in spite of protests from defence Counsels. My lead Counsel, Me Carmelle Marchessault drew the attention of the Appeals Chamber to this attitude at the time of the hearing of February 22, 2000. 87 On the contrary, certain Judges appeared to encourage her by their silence88.

Under theterms of this general interest, the installation of this Tribunal should have been the subject of negotiations open to all Member States of UN. Such was the opinion of certain Representatives of the States at the time of the foundation of the International Criminal Tribunal for Rwanda. "  our preferred method with regard to creation of an international criminal Tribunal was and remains the conclusion of a convention emanating from the international community which would clearly establish competences and the mandate of the Tribunal [... ] Consequently, this tribunal is not normally supposed to exist at the international level without the participation and the consent of the concerned parties "89.

"  As far as we are concerned, in theory, we are not favourable to the fact of calling at will upon Chapter VII of the Charter to create an international Tribunal by the means of the adoption of a resolution by the Security Council.  " [... ]."  The Chinese delegation can only express its regret and it abstained at the time of the vote. "90.

113. Is it true that at the time of the establishment of the Tribunal, i.e., in November 1994, there was such a situation? It should be recognized that such a situation existed in Rwanda since very a long time. The organs of the United Nations had beenalerted in connection with the threat against international peace and security pursuant to the invasion of Rwanda on 01 October 1990 by the Rwandan Patriotic Front (RPF) armed elements and of by the regular Ugandan army. This invasion was, of no doubt, a rupture of peace in the region and was presented in the form of a characterized aggression of Uganda against Rwanda. As of November 1990, the Rwandan Government started to express its concerns on the direct implication of Uganda in the continuing invasion of the Rwandan territory91. But the members of the Security Council remained indifferent to this serious rupture of peace in the region. As the aggression was being reinforced, the Rwandan Government, having exhausted all the diplomatic means of settlement of the conflict, including via the OAU, decided to officially bring the matter before the Security Council (April 21, 1994). Uganda was formally accused of being responsible for rupture of peace in the region and for aggression against Rwanda. But the Security Council did not even condescend to put on its agenda the complaint submitted by the Rwandan Government.

118. The Security Council failed to fulfil its obligations by not taking measures necessary for the maintenance of peace and security in the region, at the convenient period. It has, on the contrary, let rot the situation and agreed to react only following pressure emanating from some of its permanent members in order to satisfy political and hidden geostrategic objectives. But its reaction came too late, post factum. Those which followed the evolution of the situation even know that the Security Council contributed to worsen the situation while withdrawing, in April 1994, part of its contingent installed in Rwanda and which should have contributed to minimize and to perhaps stop the serious violations of humanitarian international law which took place at that moment. The Carlson Report92 adopted by the Security Council on April 15, 2000 comes to confirm this analysis. The Security Council recognized his responsibilities in the failure for the prevention for the Rwandan catastrophe.

119. Thus, everything make to believe, according to the analysis of the Secretary-general of UN, that at the time of the adoption of resolution 955, "  the threat against peace  " had disappeared. If the situation which threatened the international peace and security had ceased to exist, resolution 955 could not, in no case, adopted under the terms of chapter VII of the Charter of the United Nations. The object of this resolution is the establishment of an ad hoc international criminal Tribunal for Rwanda, following the example of the one created for the ex - Yugoslavia.However, contrary to the serious conflict situation which prevailed in ex - Yugoslavia, at the time of the establishment of the Tribunal concerning this country, the war and the interethnic massacres had ceased in Rwanda, at the time of the creation of the ICTR. The creation of this last is relevant to chapter VII as for the Tribunal of the ex -Yugoslavia whose legitimacy was recognized by its Appeals Chamber93.

121. Besides, it is worth to underline, on this subject, that the question relating to the establishment of an International Criminal Tribunal, a long time on the agenda of the General Assembly of the United Nations through the 6 th Committee, was solved in July 199994.

122. But if the Security Council had discharged its responsibilities and decided to act inRwanda, the convenient period, i.e., at the time when the events constituted threat to international peace and security, could it create the ICTR under the terms of chapter VII as much? Nothing makes it possible to affirm it since the action of creating an ad hoc international criminal tribunal is not found in the measures envisaged by chapter VII, "  in case of threat against peace, rupture of peace and act of aggression "95 These measures defined by articles 41 and 42 of the Charter of the United Nations are of two kinds:

125. But supposing that this creation is legally relevant to the attributions of the Security Council as recognized by the Appeals Chamber in the case of the Tribunal for ex-Yugoslavia96, was it necessary to resort to chapter VII, in the case of Rwanda whereas the rupture and the threat of peace had disappeared ? Was it necessary for as much putting the other Member States of the United Nations in front of an accomplished fact?

132. Thus, the reports on the massacres perpetrated in Rwanda didn't mention the massacres committed against Hutu by Tutsi and by RPF and insisted only on killings against Tutsi. This ethnic way of considering the events paved also the way for the theory of the genocide against Tutsi whereas the ethnic massacres were rather political and afflicted both Hutu and Tutsi according to, first of all, their political obedience.Besides, impartial observers noted that, contrary to widespread propaganda according to which Hutu started to immediately massacre Tutsi because of their ethnic membership after the assassination of President Habyarimana97, Hutu were first massacred bythe RPF quite before the attack against the plane of President Habyarimana. After the attack, political leaders accused of collaboration with either side were targeted by both parties to the conflict. Hutu killed by the RPF or by the government side in the town of Kigali were more numerous than Tutsi assassinated for intelligence with the RPF.

133. In their reports on the massacres, Mr. Rene Degni Segui, Special Rapporteur for Rwanda and the Experts of the United Nations, recognize that they did not have time nor the possibility of making investigations on the crimes committed by the RPF against the Hutu population. They admit however that the RPF and Tutsi committed serious crimes against humanity with massacres disguised in reprisals against Hutu98.

134. However, in his indictment, the Prosecutor by no means mentions massacre made against Hutu by Tutsi, including in the judicious historical part, which is supposed to reportthe facts objectively. Worse, the Prosecutor does not cease to affirm before the Judges that its prosecution is directed only against Hutu99.