Primary exhibits: Basis of Post reports could free genocide defendant, lawyers believe

Two National Post articles are being used as primary exhibits in a legal bid to obtain confidential documents about an investigation into the presidential assassination that sparked the Rwandan genocide in 1994.

Two Montreal lawyers representing a former Rwandan mayor convicted in the genocide will file the request today before a UN war crimes tribunal in Arusha, Tanzania.

Stories that ran in the Post last month about the documents, leaked to the newspaper exclusively, throw new light on who might have killed Juvenal Habyarimana, former Rwandan president, in a missile attack on his plane six years ago today.

The documents reveal that three informants had told prosecution investigators by May 1, 1997, that the assassination of Mr. Habyarimana, a Hutu, had been the work of mainly Tutsi rebels and not, as often contended, politically extremist Hutus.

The lawyers believe the new information could have been used to mitigate evidence presented against their client, also a Hutu, during his 1997-1998 trial.

Defence lawyers say that until the Post uncovered the information, prosecutors had withheld it from them, despite a rule obliging the tribunal to disclose any evidence that "tends to suggest the innocence or mitigate the guilt" of an accused.

"Full disclosure, a fair hearing and due process should not be subjected to whim, or to the chance of a fortuitous leak", say John Philpot and Andre Tremblay in their 23-page motion to see the documents.

The lawyers' use of the word "facts" is somewhat liberal; the new information is considered "possibly true, but untested" in one of the documents, the Post reported.

The document added that Louise Arbour, then chief UN war crimes prosecutor and now a justice with the Supreme Court of Canada, shut down the investigation after learning of the new information.

Nevertheless, 20 other lawyers representing dozens of Hutus accused in the genocide are expected to follow Mr. Philpot and Mr. Tremblay in using the recently revealed information to challenge the UN's International Criminal Tribunal for Rwanda (ICTR).

A separate lawsuit citing one of the Post's articles has already been filed in Belgium on behalf of a suspect in the murder of 10 Belgian paratroopers serving in the UN peacekeeping force for Rwanda during the genocide.

That lawsuit demands an investigation into the allegation by the informants that Mr. Habyarimana's assassination was ordered by Paul Kagame, Rwanda's interim president.

In April, 1994, Mr. Kagame was military chief of the Rwandan Patriotic Front (RPF), the mainly Tutsi rebel group that put an end to the genocide by seizing power in Kigali, the Rwandan capital, 100 days after the killing began.

Lawyers involved in action based on the Post articles claim the documents would have helped undermine one of the prosecution's main arguments against their clients -- that the genocide was premeditated by the Hutus.

While numerous academic and UN studies agree that systematic murders of Tutsis began within hours of the assassination of Mr. Habyarimana, there still remains abundant evidence that Hutu extremists had planned mass killings for months, even years, before the genocide.

However, the prosecution's failure to disclose the documents appears to have handed the genocide suspects a reason to cry foul on technical grounds.

Mr. Philpot and Mr. Tremblay are representing Jean-Paul Akayesu, a Hutu, in his appeal against a life sentence for having contributed to the genocide.

Prosecutors said at Mr. Akayesu's trial that he "never attempted to prevent the killing" of at least 2,000 Tutsis in Taba, where he was mayor, and that he had attended a political meeting discussing a plan to exterminate Tutsis.

Now the Canadian lawyers are suggesting that Mr. Akayesu did not receive a fair trial because the documents were kept from them.

In their motion, the lawyers cite two instances where prosecutors denied any investigation into the assassination had been underway.

"The two public denials before the court concerning the investigation of the missile attack could amount to serious breaches of professional prosecutorial responsibilities and rules of ethics requiring honesty before the tribunal and the correction of erroneous statements made before the tribunal", the motion says.

With the "new evidence", the motion adds, Mr. Akayesu's defence would have argued that the genocide, which resulted in at last 500,000 dead, resulted from the "execution of a military and political conspiracy by the [RPF] to take power by purely military means".

Mr. Akayesu, the defence would have said, "found himself caught up in this terrible conflict provoked by the RPF and could do nothing to stop the wave of violence that enveloped his commune".