The Detainees of the ICTR
c/o UNDF/ICTR
P.O.Box 6016
Arusha - Tanzania
12.15.00
Mrs Navanethem Pillay
President of the ICTR
in Arusha -Tanzania
Messrs Judges of the ICTR Appeals Chamber of
The Hague -The Netherlands
Madam and Judges of the ICTR Trial Chamber
Arusha -Tanzania
Madam the President,
Madam, Judges,
The Detainees at the UNDF, signatories of the present letter took knowledge of the revelations made by Madam the Prosecutor during her press conference held in Arusha on December 13, 2000. The declarations of Madam the Prosecutor released by the medias corroborate the concerns many times expressed and carried to the attention of the highest authorities of the Tribunal through our complaints and our documents of analysis denouncing the lack of impartiality, equity and independence by the Judges. They explain why defense motions are systematically rejected in spite of their relevance while those of the Prosecutor are generally approved in spite of the absence or the insufficiency of evidence to support them. It is the same for the judgements so far rendered by the Chambers.
By addressing the present letter to you, the undersigned wish to express to you their disappointment and hope that, this time, it will be possible for you and for all the Judges of the ICTR to take the measures required by the seriousness of the situation.
According to the Hirondelle Agency dispatch of December 13, 2000, Madam the Prosecutor of the ICTR held an important press conference at the ICTR Headquarters in Arusha, after a one week stay in Kigali. During her stay, she lengthily discussed with President Paul Kagame many questions in connection with the activities of her Office as from the next year.
We raise hereafter some of her scandalous declarations which, according to us, require your reaction in the interest of Justice.
During this press conference of December 13 2000, Mrs Carla Del Ponte again dealt with her constant concern about the "weakness" of her collaborators in front of the defense Counsels who are all excellent lawyers, according to her own terms.
Answering to a journalist of the weekly magazine "East African" which had expressed his astonishment to hear Madam the Prosecutor complain about her collaborators whereas they always had won their cases and that all judged cases led to indictments, Mrs Carla Del Ponte declared without reserve: "That means our judges are very good judges, because they can correct the errors of the Prosecution".
By this declaration, Madam the Prosecutor confirmed our observation expressed many times on the absence of impartiality in our trials. She explicitly confirmed that far from being neutral, our Judges supplement the Accusation and, if need be, compensate straightforwardly for her insufficiencies. Moreover, the confirming judges who until recently could not sit in the trial proceedings on the merits have been just authorized to do so by the amended Rules. This confirms the bitter observation that the judges remain indifferent to the Prosecutor refusal to produce, during the trial on the merits, the evidence having justified the confirmation of the indictment and the trial. Lastly, the amendment of rule 94 of the Rules seems to exempt the Prosecutor to provide the evidence of her allegations.
Other cases illustrate this analysis as well. We can quote by way of examples: the authorization in the course of trial of new charges relating to the rape, convictions without evidence for assassination of non identified individuals, amendments of the Rules pursuant to the Prosecutor proposal when she has difficulties and, more recently, the reopening of the debates authorized by the Judges in the Bagilishema case on September 7, 2000.
In this last case, it should be noted that after the obviously weak Prosecutor's closing speech and the richly documented defense counsels' pleading, instead of closing the debates and put the Bagilishema case immediately on deliberation, the Judges of Chamber I, contrary to the usage, decided to grant an additional time to the Accusation by obliging her to produce more evidence in spite of her resistance shared by the Defense.
Mrs Adong who represented the Prosecutor at this hearing, expressed herself as follows: "Mister President, this delay is not caused by the Accusation. We did not ask for an additional time to proceed to our answer. We respect the instruction which was given by this honourable chamber. This cannot be blamed on us. "She was answering to the protest from defense counsel, Me François Roux, expressed as follows : " Mister the President, it had been clearly agreed between the parties that at the latest at the end of this week, the debates were closed so that the Chamber could undertake its deliberation. We note, today, that the debates will be closed only in several weeks. The Chamber will thus undertake its deliberation only in several weeks. I do not see why this deliberation would be shortened."
At the time of her press conference, Madam the Prosecutor declared herself satisfied with the amendments made in the Rules and recognized that the Judges did everything to facilitate the task of her Office to the detriment of the Defense. Madam the President of the Tribunal confirmed this appreciation in her work report presented to the General Assembly of the United Nations and to the Security Council last November. After having presented an exhaustive inventory of the motions examined by the three Chambers of the Tribunal during this year, especially distinguishing those emanating from the Accusation from those introduced by the Defense, generally qualified as frivolous, the ICTR President seized this occasion to reassure the UN authorities of the measures taken against the Defense by declaring: "The ICTR Rules of procedure and evidence was modified at the time of the plenary session held in February 2000 in order to make it possible to the judges to impose sanctions to the counsels who, to the opinion of the Chamber, present motions which are futile or constitute abuse of proceedings".
It is important to stress that the Prosecutor takes part in the debates of the plenary sessions whereas the Defense is not represented there.
It is significant to note that this same report omits to mention the amendments made to the Rules at the request of the Prosecutor to help her regularize irregular detentions (article 40 bis) or make succeed her strategy of joining the accused (article 48 bis).
The report does not even refer to delays in proceedings caused by motions introduced by the Prosecutor to obtain authorization to amend confirmed indictments, in order to carry out joined trials. All these attempts having been strongly disputed by the Defense, article 48 bis of the Rules again has been just amended last November, in order to help Madam the Prosecutor who had difficulties in explaining the legal basis of the joined trials.
Encouraged by all the successes recorded to the detriment of the Defense, Madam the Prosecutor does not hide any more her certainty of being able soon to convince the Judges to hold certain hearings of the Tribunal in Kigali in order to meet the Rwandan Government demands.
It is obvious that in front of the deficiency of the material evidence to support her allegations, Madam the Prosecutor wants to rely on the pressure of the street to compensate for it.
At the time of her press conference of December 13, 2000, Mrs Carla Del Ponte admitted and declared publicly that the activities of the ICTR depend on the Government of Kigali. According to her, it is by realism that she had discussions with President Paul Kagame on the activities programmed by its Office of Kigali for the year 2001. But, it is not all. Always during this press conference, Carla Del Ponte acknowledged her incapacity to prosecute recognized criminals, currently on power in Kigali, without prior agreement of their leader, namely, General Paul Kagame. As a result of their recent discussions, Paul Kagame would have promised to her access to the information collected by the Rwandan authorities in connection with the investigations carried out against certain RPF soldiers.
Concerning the possible incrimination of the General Kagame, regularly denounced as the principal assassin of President Habyarimana, Mrs Carla Del Ponte limited herself to affirm, to the general surprise, that she "does not work on presumptions". This answer is all the more surprising that her Office did not wait to collect as many material evidence to arrest the undersigned, detained for long years by the Tribunal.
How can she proceed differently to open a criminal case against Kagame and his principal accomplices if she refuses to take into account presumptions as serious as those contained in the declaration of J.P Mugabe of April 21, 2000, that of Hakizabera Christophe made on September 9, 1999, that of Steven Edwards published in the National Post referring to the report made on 1 August 1997 by the investigator Michael Hourigan, or that more recent of the former member of Parliament and RPF officer, Kagiraneza Deus, dated on December 7, 2000? Article 6 of the ICTR Statute, in its item 2, is however very clear: "The official position of any accused person, whether as Head of State or Government; or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment".
The attitude of Madam the Prosecutor of the ICTR with respect to the suspect Paul Kagame is an irrefutable evidence that she prefers to close the eyes on the crimes committed by RPF in general, on those of President Paul Kagame, in particular, to avoid the closing of her Office in Kigali. When one knows with which eagerness, the Prosecutor launched her international warrant for arrest against President Milosevic, one can only be astonished by the arguments put forward to justify inaction against Kagame and his accomplices.
At the time of her press conference, the ICTR Prosecutor, Mrs Carla Del Ponte finally recognized that the assassination of President Habyarimana is indeed related to the massacres which took place in Rwanda. But, she always seeks to avoid her responsibilities to make an exhaustive investigation into the subject preferring to rely on French Judge Bruguière who however does not work on behalf of the Tribunal. In addition, it is advisable to recall that her predecessor at the head of the Office of the Prosecutor, Mrs Louise Arbour, had stopped the investigations in progress on this assassination in 1997 and had hidden Mr. Hourigan's report which contained the first elements of evidence implicating the RPF and its leader Paul Kagame. It remains however obvious that without clarification on the authors of this assassination, whom are besides identified, by serious witnesses, as being RPF men, it would be unjust and inequitable to continue to make the opinion believe that it is Hutu who have planned the tragic events which shook Rwanda since 1990 until today.
In the working report presented to the General Assembly of the United Nations and to the Security Council, Mrs. Pillay, President of the ICTR declared: "According to the Prosecutor's opinion, the systematic, generalized and methodical character of the crimes which were perpetrated on the whole Rwandan territory in 1994 implies that there could have been coordination and thus conspiracy to destroy in whole or in part the tutsi group as such. This is why, the office of the Prosecutor gives by priority to the investigations an orientation likely to bring the material evidence that there was conspiracy. It constituted new teams of investigators targeting particularly the political, military and administrative institutions which were in place at the time of the genocide. Investigators furrow Rwanda, Europe and the African continent in the search of elements of evidence and information which will make it possible to arrest and condemn the architects of the genocide."
The same working report indicates the "the declarations of witnesses are the cornerstone on which the accusation directly bases its argumentation". There is something to worry about as pursuant to this observation when it is known that the Prosecutor's witnesses are selected in consultation with the governmental authorities of Kigali which rely primarily on the association IBUKA, commonly called trade union of informers. Selected, involved and framed well by IBUKA, these witnesses receive in return to pay their false testimonies very substantial material rewards financed by the Tribunal. The Prosecutor's new strategy consisting of using as witnesses in the trials detainees on standby for trials related to "genocide" and who are ready to make confessions before the Rwandan Tribunals, is based on the same philosophy. To accept to testify before the ICTR constitutes a major asset to benefit from the reduction of sentence registered in the Rwandan law relating to the "genocide" and encouraging defendant to plead guilty and to denounce themselves mutually.
Under these conditions, how not to put questions about the behavior of the Judges who guaranteed the arrests made until now and rendered judgements for "genocide" without material evidence nor debate on this question. It is clear that the judgements rendered under these conditions lack legal basis and are considered null and void.
The Undersigned estimate that the Judges should put an end to their prolonged detention since the Prosecutor recognized that she did not gather yet evidence to justify their arrest and their prosecution by the ICTR.
They estimate that the declarations of Mrs Carla Del Ponte, at her press conference of December 13 2000, are sufficiently serious not to leave indifferent the ICTR Judges who are all blamed, the President of the Tribunal in particular. As for Madam the Prosecutor of the ICTR who automatically disqualified herself by inducing the Judges in error knowingly, she should resign or dismissed.
Should it be otherwise, the Undersigned would have nothing more but the following alternative : to support the parody of justice resulting from the general activity of the International Criminal Tribunal for Rwanda or to refuse to subject themselves to its jurisdiction. In any event, the Undersigned invite their Counsels to handle this question urgently.
Please accept, Madam the President, the Judges, the assurance of our very high consideration.
Detainees (see list of the signatories in appendix)
Cc:
- Mister the Secretary-general of UN, New York,
- Mister the Registrar of the ICTR, Arusha,
- Defense Counsels (All),
- Rwandan Diaspora,
- Amnesty International, London,
- Fédération Internationale des Ligues des Droits de l'Homme, Paris,
- Human Rights Watch, New York,
- Africa Direct, London,
- Medias.