C.        Third Ground of Appeal : Biased and Partisan Tribunal[162]

85.       Akayesu alleges that the Tribunal before which he was tried was neither impartial nor independent and that, he was not afforded a fair trial and that as a result, the guilty verdicts should be “quashed, with prejudice to the Prosecution.”[163]

86.       This ground of appeal was originally raised in Akayesu’s second Notice of Appeal.[164]  By a motion dated 7 December 1999,[165] Akayesu requested leave to amend this ground of appeal to include several more paragraphs and to present twenty-four documents as additional evidence. In its Decision of 22 August 2000 the Appeals Chamber rejected both requests.

87.       The Prosecution submits that as Akayesu based this ground of appeal on the 24 documents which had been rejected “there is no support for the Appellant’s allegations in the Record on appeal. As there is no factual basis for the Appellant’s allegations and arguments in [Akayesu’s Brief], it is the Prosecution’s submission that they should be dismissed without further consideration.”[166] Consequently, the Prosecution puts forward no arguments in response.

88.       The Appeals Chamber notes that Akayesu did not respond to the submissions by the Prosecution in his Reply and that, although he did refer to the said ground of appeal briefly during the Hearing on Appeal,[167] he failed to clarify his position nor did he argue the matter further. Although, as recalled by the Prosecutor, all the evidence adduced by Akayesu in support of his arguments were rejected by the Appeals Chamber on 22 August 2000, nevertheless the Appeals Chamber agree that it is properly seized of this ground of appeal, which was not excluded by the Decision of 22 August 2000 and of which it is validly seized.   Therefore, the Appeals Chamber cannot accept the argument put forward by the Prosecution that this ground of appeal should be rejected on that basis.  Thus, the Appeals Chamber intends to consider the arguments put forth in support of such grounds, if being understood that only those arguments put forward in Akayesu’s Brief and those which are not based exclusively on the evidence rejected by the Appeals Chamber will be taken into consideration.  In this regard, the Appeals Chamber recalls that the onus is on the Appellant to provide the Appeals Chamber with enough evidence to prove either an error of fact or an error of law, such as may occasion a miscarriage of justice or invalidate the decision.

89.       As matters stand, Akayesu’s arguments may be summarized as follows:[168]

(a)        The Trial Chamber was neither impartial nor independent

(i)         Akayesu’s submissions

90.       Firstly, Akayesu submits that remarks made by the judges both in public and in private suggest a lack of impartiality on their part and constitute a violation of their duty to be independent and impartial.[169]  He further alleges the existence of  “pressure and special arrangements” that tended to undermine the independence of the Tribunal.  Akayesu cites in support of that assertion the Judgment of 31 March 2000 rendered by the Appeals Chamber in the Barayagwiza case, which he claims “does not provide a remedy for the interference, pressure and arrangements that prevailed in the past […]”[170]  Finally, Akayesu points out the “defamatory and false statements made by the Registrar [which] constitute a serious violation of his obligation to exercise “judicial restraint”; they undermine the neutrality, impartiality and independence of the Tribunal”.[171]

(ii)                Discussion

91.              As held by ICTY Appeals Chamber, there is a presumption of impartiality that attaches to a Judge or a Tribunal and, consequently, partiality must be established on the basis of  adequate and reliable evidence. On this point, the Appeals Chamber endorses the standards of admissibility of an allegation of partiality as set out by ICTY Appeals Chamber in Furundzija, whereby:

“[…] there is a presumption of impartiality which attaches to a Judge.  This presumption has been recognized in municipal law.”[172]

[…] in the absence of evidence to the contrary, it must be assumed that the judges of the International Tribunal can disabuse  their minds of any irrelevant personal beliefs or predispositions.  It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that [the Judge in question] was not impartial in his case.  There is a high threshold to reach in order to rebut the presumption of impartiality.”[173]

92.       In the instant case, the arguments put forward by Akayesu are too general and abstract to rebut the presumption of impartiality.  The arguments relating to biased statements allegedly made by certain Judges of the Tribunal are neither substantiated nor detailed. Similarly, there is no evidence that the Tribunal entered into “special arrangements”, or that there was “influence” or “pressure” brought to bear by some authorities.  Consequently, the Appeals Chamber rejects this patently unfounded allegation.  

(b)        Selective Prosecution

(i)         Akayesu’s submissions

93.       Akayesu submits that the Tribunal is prosecuting only the “losers” in the Rwandan conflict by failing to prosecute the perpetrators of “crimes of extermination of the Hutu” who enjoy “complete immunity” from prosecution.[174] He submits that such failure exhibits partiality in the punishment of crimes committed in Rwanda during the relevant period. He compares this to the contrary situation before ICTY where persons from “both camps”, including Croat leaders, have been prosecuted.

(ii)             Discussion

94.       The Appeals Chamber cannot admit Akayesu’s argument that failure to prosecute persons possible perpetrators of crimes against the Hutu population is an indication of the Tribunal’s partiality. On this point, the Appeals Chamber wishes to recall that “investigation and prosecution” of persons responsible for serious violations within the jurisdiction of the Tribunal fall to the Prosecutor[175] and that it is her responsibility to “assess the information received or obtained and decide whether there is sufficient basis to proceed.”[176]  On this point, the Appeals Chamber agrees with the analysis made by ICTY Appeals Chamber in Celebici, where it held that:

“In the present context, indeed, in many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction. It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted.  It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation in indictments. […]”[177]

95.       The allegation that the failure to prosecute possible perpetrators of crimes against the Hutu population is an indication of the Tribunal’s partiality cannot properly be sustained since Akayesu advanced no evidence in support thereof.

96.       Assuming that the Prosecutor pursues a discriminatory prosecutorial policy, Akayesu has failed to show any causal relationship between such a policy and the alleged partiality of the Tribunal.  Furthermore, Akayesu has failed to show how such a general allegation relates to his case, that is how the alleged discriminatory prosecution on policy pursued by the Prosecutor was so prejudicial to him as to put in issue the lawfulness of the proceedings instituted against him.  Akayesu has not indicated to the Appeals Chamber whether he had raised the issue at trial, the most appropriate stage to do so. Nor did he show how the alleged prosecutorial policy has or had affected the arrest of other individuals.  The Appeals Chamber recalls in this context the statements made by ICTY Appeals Chamber in Celebici:

“[…] the evidence of discriminatory intent must be coupled with the evidence that the Prosecutor’s policy has a discriminatory effect, so that other similarly situated individuals of other ethnic or religious backgrounds were not prosecuted. […]”[178]

97.              For all the foregoing reasons, the Appeals Chamber rejects this argument.

(c)        Functioning of the Tribunal and approach to the conflict in Rwanda

(i)         Akayesu’s arguments

98.       Akayesu argues that the very functioning of the Tribunal suggests that he could not have had a fair trial. The difficulties encountered in conducting investigations were even recognized by the Prosecution during the trial[179] and the specific example of the problems concerning Witness DAAX, show that it was impossible for Akayesu to have a fair trial since the Witness himself was arrested and imprisoned in Rwanda after his testimony.[180] In addition, Akayesu submits that the Tribunal cannot properly function when it does not have the power to issue subpoenas and compel witnesses to appear before it.[181]

99.       Akayesu further submits that the Trial Chamber’s approach to the Rwandan conflict is erroneous. The Appeals Chamber notes, however, that most of the arguments put forward in support of such an allegation were not reiterated by Akayesu in his Brief. [182] Therefore, the Appeals Chamber will not consider the said arguments. Akayesu’s Brief containg only the argument that the Tribunal made erroneous findings concerning the incident that sparked off the conflict in April 1994, to wit the crash of the presidential plane.  Indeed, Akayesu submits that the Tribunal erred in its Judgment by “referring on nine occasions, without exception, to the missile attack on the Presidential plane which took place on 6 April 1994, as a “crash”, [whereas] it was not a crash, but a ground to air missile attack. That attack, which sparked off the political and interethnic conflict which began in April 1994, was wrongly characterized thereby affecting the overall assessment of the evidence.[183] 

(ii)        Discussion

100.     With respect to this argument, the Appeals Chamber finds that, here again, Akayesu failed to show the prejudice suffered by him in his own case.  The allegations are too sweeping to be rightly considered by the Appeals Chamber.  With respect, firstly, to the Prosecutor’s statements on travel within Rwanda and the difficulties encountered in conducting investigations, Akayesu has failed to show the relevance of that example. Similarly, he failed to explain why the episode of the testimony of Witness DAAX illustrates the impossibility of having a fair trial. Lastly, the issue of erroneous findings regarding the “crash” of the presidential plane was not elaborated on and, therefore, cannot be duly considered by the Appeals Chamber.  Therefore, the Appeals Chamber rejects this last argument.

101.     Consequently, and given the inadequacy of the arguments put forward, the Appeals Chamber rejects all the grounds of appeal relating to the impartiality of the Tribunal.