Untitled Document

1. The Judgement in the case of The Prosecutor v. Eli�zer Niyitegeka is rendered by Trial Chamber I (“the Chamber”) of the International Criminal Tribunal for Rwanda (“the Tribunal”), composed of Judges Navanethem Pillay, presiding, Erik M�se, and Andr�sia Vaz.

2. The Tribunal was established by United Nations Security Council Resolution 955 of 8 November 1994 [1] after it had studied official United Nations reports which revealed that genocide and other widespread, systematic, and flagrant violations of international humanitarian law had been committed in Rwanda. [2] The Security Council determined that this situation constituted a threat to international peace and security, and was convinced that the prosecution of persons responsible for serious violations of international humanitarian law would contribute to the process of national reconciliation and to the restoration and maintenance of peace in Rwanda. Accordingly, the Security Council established the Tribunal, pursuant to Chapter VII of the United Nations Charter.

3. The Tribunal is governed by the Statute annexed to Security Council Resolution 955 (“the Statute”), and by the Rules of Procedure and Evidence adopted by the Judges on 5 July 1995 and subsequently amended (“the Rules”). [3]

4. Pursuant to the provisions of the Statute, the Tribunal has the authority to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda. The Statute has also empowered the Tribunal to prosecute Rwandan citizens, who are natural persons, responsible for such violations committed in the territory of neighbouring States. Under Article 7 of the Statute, the Tribunal's temporal jurisdiction limits prosecution to acts committed between 1 January 1994 and 31 December 1994. Individual criminal responsibility, pursuant to Article 6, shall be established for acts falling within the Tribunal's material jurisdiction, as provided in Articles 2, 3, and 4.

5. Eli�zer Niyitegeka was born on 12 March 1952 and is from Gitabura secteur, Gisovu commune, Kibuye Prefecture in Rwanda. He was a journalist and a news presenter on Radio Rwanda. He was sworn in as Minister of Information of the Interim Government on 9 April 1994.

6. The Accused was a member of the party called the Mouvement D�mocratique R�publicain (“MDR”), and Chairman of MDR in Kibuye Prefecture from 1991 to 1994. He was also a member of the national political bureau.

7. On 25 November 2002, the Prosecution filed its Harmonized Amended Indictment (“the Indictment”), which is set out in full in Appendix I to this Judgement. The Indictment charges the Accused with genocide, complicity in genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, crimes against humanity, and with serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Articles 2, 3 and 4 of the Statute. The charges relating to serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II were subsequently withdrawn. [4]

8. Individual responsibility for the above crimes was charged in the Indictment under Article 6(1) of the Statute. Additionally, the Accused is charged with responsibility under Article 6(3) for all counts except conspiracy to commit genocide. The charges against the Accused are considered in Chapter III of this Judgement.

9. The first Indictment against the Accused was confirmed on 15 July 1996 by Judge Yakov Ostrovsky. On 16 December 1998, an arrest warrant for the Accused was issued by the same judge. The Accused was arrested in Nairobi, Kenya on 9 February 1999, and served with a copy of the Indictment. He was transferred to the Detention Facility of the Tribunal in Arusha on 11 February 1999. He made his initial appearance on 15 April 1999 before Trial Chamber III, composed of Judge Navanethem Pillay, presiding, Judge Lloyd George Williams and Judge Pavel Dolenc. An Amended Indictment was read to the Accused and he entered a plea of not guilty on all six counts alleged in the Indictment. This First Amended Indictment was subsequently filed on 29 April 1999.

10. Two applications for joinder were filed by the Prosecution: the first
on 2 July 1999 with twelve Co-Accused; and the second on 3 March 2000 with seven Co-Accused. On 27 April 2000, Trial Chamber II granted the Prosecution leave to withdraw the first joinder motion. On 9 October 2000, the Prosecution sought leave to withdraw the second joinder motion. The Chamber considered the motion withdrawn as it had become moot.

11. The Accused having been found indigent by the Tribunal, the Registrar of the Tribunal assigned Sylvia Geraghty as Counsel for the Accused, in accordance with the provisions of the Directive on Assignment of Defence Counsel.

12. On 14 July 1999, 27 July 1999, 20 September 1999 and 7 October 1999, the Defence wrote to the Prosecution requesting copies of witness statements. The Prosecution responded on 25 August 1999 and 25 October 1999 by furnishing a copy of the supporting materials of the Indictment.

13. The Defence sought disclosure of evidence from the Prosecution on 29 October 1999 and 9 November 1999. On 4 February 2000, Trial Chamber II, then seized of the case, ordered the Prosecution to disclose information pursuant to Rule 66(A)(ii) of the Rules. Subsequently, the Defence filed an urgent motion for compliance with the 4 February Order and the motion was heard on 30 March 2000, wherein it was decided that the Prosecution had complied with the order and disclosed all exculpatory material within its possession.

14. On 9 March 2000, the Prosecution filed a Motion for the Protection of Witnesses. Trial Chamber II issued its decision on 12 July 2000, granting the motion in part.

15. The Defence filed an Urgent Preliminary Defence Motion on 11 April 2000: Objections based on Lack of Jurisdiction and Defects in the Form of the Indictment. On 20 April 2000, the Defence filed an Urgent Defence Motion Seeking a Stay of Proceedings Pending Decision on the Motion filed on 11 April 2000. On 21 June 2000, Trial Chamber II dismissed both motions. The Accused appealed against this decision on 27 June 2000. The Appeal was dismissed on 16 October 2000.

16. On 21 June 2000, Trial Chamber II granted the Prosecutor’s Request for Leave to File an Amended Indictment by adding four new charges, including Direct and Public Incitement to Commit Genocide and Rape as a Crime Against Humanity. The deadline to file the Amended Indictment was extended, by a decision issued on 23 June 2000, to 26 June 2000. On 3 July 2000, the Accused pleaded not guilty to the new charges included in the Amended Indictment dated 26 June 2000. As the amendment added the element of superior responsibility pursuant to Article 6(3) to the existing charges, the Chamber entered a plea of not guilty on all counts in the Amended Indictment.

17. The Defence filed a motion on 29 June 2000 on Matters Arising From the Decisions Dated 21 and 23 June 2000 on the Amendment of the Indictment. The Defence also filed, on 4 August 2000, a Preliminary Defence Motion Objecting to the Amended Indictment based on Defects in the Form of the Indictment and Lack of Jurisdiction. On 20 November 2000, Trial Chamber II directed the Prosecution to file the New Amended Indictment within 21 days from the date of the decision. The Prosecution sought an extension of time on 7 December 2000 to file the New Amended Indictment. An extension to 19 December 2000 was granted by Trial Chamber II on 8 December 2000.

18. At a Status Conference held on 25 September 2000, a proposed date of February 2001 for the commencement of the trial was agreed upon by the parties. An undertaking was given by the Prosecution to complete disclosure before 31 October 2000.

19. On 6 February 2001, the Defence filed a Motion Pursuant to Rule 5 of the Rules, which was heard on 21 February 2001. This was followed by a Defence Motion Pursuant to Articles 19 and 20 of the Statute and Rule 5 of the Rules. On 27 February 2001, Trial Chamber II directed the Prosecution to file the new Amended Indictment by 15 March 2001, and to abide by its undertaking as to disclosure. The Prosecution was warned that it would be sanctioned pursuant to Rule 46 if it continued to obstruct the proceedings. This Modified Amended Indictment was filed on 14 March 2001.

20. The Defence filed an Urgent Motion, on Consent, Seeking an Early Date for Pre-Trial Conference on 28 September 2001. By Defence Counsel’s own count, the Defence made 15 attempts to have the case set down for trial. [5]

21. On 14 February 2002, the Prosecution filed a Request to Admit Facts. The Defence filed its Reply on 21 June 2002, admitting that:

22. On 25 February 2002, Trial Chamber II informed the parties that the trial would begin in June 2002, probably before another Trial Chamber. On 11 March 2002, the Prosecution filed its Pre-trial Brief.

23. Prosecution Witness GK was ordered on 27 May 2002 to be transferred temporarily to the Tribunal pursuant to Rule 90bis, in order to testify at the trial.

24. On 14 June 2002, a Pre-trial Conference was held and the trial began on 17 June 2002 with the first Prosecution witness, GK.

25. On 19 June 2002, the Chamber issued its Decision to Adjourn Proceedings Due to the Unavailability of Witnesses, wherein it was noted that the Chamber was compelled to adjourn proceedings, after Prosecution Witness GK’s testimony, to 24 June 2002. The Chamber drew the attention of the Rwandan authorities to their legal obligation to cooperate with the Tribunal and requested them to ensure that the travel of the witnesses scheduled for the case was facilitated so that the trial could resume without further delay on 24 June 2002.

26. The Prosecution sought reciprocal disclosure from the Defence on 20 June 2002. This request was subsequently withdrawn on 29 November 2002 as being moot since the trial had concluded by that date, although the Prosecution argued that the Defence never fully complied with its disclosure obligations.

27. The Chamber adjourned the proceedings on 24 June 2002 until 26 June 2002 due to the unavailability of Prosecution witnesses from Rwanda. The proceedings were further adjourned on 26 June 2002 to 13 August 2002 for the same reason. The trial recommenced on 13 August 2002, with the testimony of Prosecution witnesses.

28. A Defence motion filed on 3 July 2002 for protective measures for Defence witnesses was granted in part by the Chamber in its Decision dated 14 August 2002.

29. The Prosecution filed a Motion for Judicial Notice of Facts on 25 July 2002. The Chamber issued its Decision on the Prosecutor’s Motion for Judicial Notice of Facts on 4 September 2002. The motion was allowed in part and judicial notice was taken of the following facts:

30. The Prosecution filed a motion for the subpoena of witnesses on 18 June 2002, but leave to withdraw the motion was granted by the Chamber on 3 September 2002, upon the Prosecution’s request, as being moot since the witnesses had arrived from Rwanda to testify and the Prosecution’s case had since closed.

31. On 4 October 2002, the Chamber denied a Prosecution Motion for the Testimony of Witness KJ to be taken by Deposition and urged the Prosecution to continue to seek the transfer of Witness KJ from Rwanda to the Tribunal. On 10 October 2002, the Chamber ordered the immediate transfer of Witness KJ to the United Nations Detention Facility in Arusha pursuant to Rule 90bis of the Rules, at the request of the Prosecution. Witness KJ was subsequently transferred to the Tribunal.

32. On 10 October 2002, the Chamber granted the Prosecution’s Request to Contact 25 Defence Witnesses subject to certain conditions.

33. The Prosecution closed its case on 17 October 2002. The Defence commenced its case on 21 October 2002. On 5 November 2002, the Chamber issued a Decision granting the Defence’s Motion for the Issuing of a Subpoena. On 7 November 2002, the Defence filed its Pre-defence Brief. The Defence closed its case on 15 November 2002.

34. The Prosecution filed a motion on 18 October 2002, upon the direction of the Chamber, to amend the Indictment in order to harmonize the English and French versions. An Order Granting Leave to File the Harmonized Modified Amended Indictment was issued by the Chamber on 12 December 2002. In total, the Indictment against the Accused was amended four times.

35. On 15 November 2002, the Trial Chamber directed the Prosecution to file its Final Trial Brief by 31 December 2002, and the Defence to file its Final Trial Brief by 17 February 2003. The Prosecution filed its Final Trial Brief on 13 December 2002. On 14 February 2003, the Defence sought an extension of time to file its Final Trial Brief, which was granted the same day, and the Defence filed its Final Trial Brief on 18 February 2003.

36. Closing arguments of both the Prosecution and the Defence were heard by the Chamber on 27 and 28 February 2003.

37. In summary, the Prosecution opened its case on 17 June 2002 and closed its case on 17 October 2002, after 13 Prosecution witnesses were heard. The Defence opened its case on 21 October 2002 and, after calling 11 Defence witnesses, closed its case on 15 November 2002. The trial proceedings lasted 33 days, including two days for Closing Arguments.

38. Pursuant to Rule 89(A) of the Rules, the Chamber is not bound by national rules of evidence, but by the Rules of the Tribunal. Where the Rules are silent, the Chamber is to apply rules of evidence which best favour a fair determination of the matter before it and which are consonant with the spirit of the Statute and the general principles of law, as provided in Rule 89(B). Any relevant evidence deemed to have probative value is admissible in accordance with Rule 89(C).

39. The Tribunal’s jurisprudence has established general principles concerning the assessment of evidence, including those concerning the probative value of evidence; the use of witness statements; false testimony; the impact of trauma on the testimony of witnesses; problems of interpretation from Kinyarwanda into French and English; and cultural factors affecting the evidence of witnesses. [6]

40. The Defence made submissions as to the discrepancies between a witness’s prior written statement and his testimony. The Chamber has considered all discrepancies raised and any explanations offered for the same in its deliberations. The Chamber considers that sworn testimony before the Chamber has considerably more probative value than the witness’s declarations in prior written statements.

41. The Defence argued that in the interests of a fair trial, it was entitled to first-made records, or the handwritten notes, of Prosecution’s investigators, taken during interviews with the Prosecution witnesses, in order to use such notes during cross-examination to challenge the credibility of the witness. [7] The Chamber ruled that such records are privileged documents that fall within Rule 70 and are not subject to disclosure. [8] As Prosecution witness statements were disclosed to the Defence, the Defence, based on these statements, could raise discrepancies and other issues of credibility in cross-examination for the Chamber’s consideration. Finally, the Chamber notes that the Prosecution maintained that it did not have any handwritten notes of investigators in its possession.

42. The Defence asserted that some Prosecution witnesses fabricated their testimony or were influenced in the making of their statements. The Chamber considers that a distinction is to be made between credibility issues and false testimony. The Chamber also notes that the Defence has not moved an application under Rule 71 alleging false testimony of any witness, and that the onus is on the party pleading such a case to prove the falsehood alleged and the requisite intent or knowledge.

43. The Chamber notes that hearsay evidence is not inadmissible per se, even when it is not corroborated by direct evidence. The Chamber has considered hearsay evidence with caution, in accordance with Rule 89.

44. The Chamber recalls the recent Judgement in Ntakirutimana, following Kupreskic, wherein the degree of specificity required in Indictments was discussed. [9] It was decided that material facts ought to be pleaded in respect of specific acts, although a high degree of specificity would be impracticable in the case of large-scale crimes; however, where the Prosecution is able to provide details, it should do so. Disclosure of witness statements, the Pre-trial Brief or other materials, and knowledge acquired during the course of the trial, may have the effect of curing any lack of notice in the Indictment. A distinction was made between sufficient notice of an allegation and sufficient notice of the details of an allegation: a witness may provide previously undisclosed details during testimony. The issue of notice is to be assessed in respect of each allegation where it arises.

45. Bearing in mind the Defence’s arguments with respect to the presumption of innocence and the burden of proof, [10] the Chamber notes that Article 20(3) guarantees that an Accused is presumed innocent until proven guilty. Therefore, the Prosecution has the burden of proving the Accused’s guilt beyond reasonable doubt.

46. Rule 85(C) provides that the Accused may, if he so desires, appear as a witness in his own defence. Article 20(4)(g) guarantees that the Accused shall not be compelled to testify against himself or herself or to confess guilt. The Accused chose not to testify in his own defence in the present case. The Defence made submissions concerning the right to remain silent and the right not to testify. [11] The Chamber is mindful of the Accused’s rights in this regard and has not drawn any adverse inference in the present case. [12]

47. The Defence argued that in light of prejudicial comments made by the Prosecution during the cross-examination of Defence Witness TEN-16 on the character of the Accused in circumstances where it was alleged that the Accused had implicated himself in the commission of rapes, the Chamber ought to have recused itself. Having refused to do so, the Chamber must acquit the Accused of all counts in order to protect the Accused’s right to a fair trial, or else ensure that it is not influenced by the prejudicial comments made by the Prosecution in its deliberations. [13] The Chamber has not been influenced by the comments to which Defence Counsel makes reference, and has been mindful, in its deliberation and assessment of the evidence, of the burden on the Prosecution to prove its case beyond reasonable doubt.

48. The Defence submitted that Prosecution Witnesses GK and KJ fall into the category of accomplices and that therefore their evidence ought to be treated with circumspection, particularly if such evidence is uncorroborated. [14] The ordinary meaning of an accomplice is a partner or helper, especially in a crime or wrongdoing. [15] The Chamber will consider the Defence contention wherever applicable, but notes for the present that it has exercised caution in its deliberations on such evidence. However, the Chamber also notes that a similar argument was not adopted in Delalic, wherein the Trial Chamber, based on the facts of that case, declared itself unpersuaded by the Defence’s assertion that Witness D was an accomplice and had a real motive for giving evidence helpful to the Prosecution and exculpatory of himself. [16] The Chamber further notes that in Nahimana, it was held to be a common procedure in criminal trials for an accomplice to turn state witness after entering a plea or receiving a pardon, and that it is open to the Defence to cross-examine and discredit such a witness in any manner the law permits. [17]

49. The Defence asserted that where Prosecution witnesses claim to identify the Accused at various scenes of crime, such identification evidence triggers a warning that judges must give themselves when assessing such evidence. It was submitted that this is especially so where alibi evidence is advanced by the Accused. [18] The Chamber accepts that identification evidence has inherent difficulties due to the vagaries of human perception and recollection. Therefore, the Chamber has carefully assessed and weighed the identification evidence adduced, taking into account the following factors: prior knowledge of the Accused, existence of adequate opportunity in which to observe the Accused, reliability of witness testimonies, conditions of observation of the Accused, discrepancies in the evidence or the identification, the possible influence of third parties, the existence of stressful conditions at the time the events took place, the passage of time between the events and the witness’s testimony, and the general credibility of the witness. [19]

50. The Defence has adduced alibi evidence with respect to certain allegations against the Accused. Rule 67(A)(ii)(a) provides that the Defence shall notify the Prosecution of its intent to enter the defence of alibi as early as reasonably practicable, and in any event, prior to the commencement of the trial. Pursuant to Rule 67(B), failure to provide such notice does not limit the right of the Accused to rely on the defence, although in the absence of a showing of good cause for such failure, the Chamber may take this into account in weighing the credibility of the alibi. [20]

51. In Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”. [21]

52. The Accused does not bear the burden of proving his alibi - if the alibi raises a reasonable doubt, the Accused must be acquitted. Where the alibi is rejected, a finding of guilt does not automatically follow; the evidence must be assessed and a conviction entered only if the allegation has been proved beyond reasonable doubt.

[2] Preliminary Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994) (U.N. Doc. S/1994/1405) and Reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights (U.N. Doc. S/1994/1157, Annexes I and II).

[3] The Rules were last amended on 6 July 2002 at the Twelfth Plenary Session.

[4] Prosecution Final Trial Brief, p. 55, para. 230.

[5] T. 17 June 2002 (Closed Session), pp. 81-82. See, e.g., paragraphs 31 and 32 of the Defence Motion Objecting to the Prosecutor’s Request for Leave to File an Amended Indictment dated 20 May 2000, indicating that “the Accused was anxious that [the trial] should proceed with all due speed” and asserting that a trial date should have been set after the Accused’s Initial Appearance. During the hearing of this motion on 1 June 2000, the Defence repeated these points (p. 18). See also the letter from the Defence to the Prosecution dated 14 March 2001, p. 7; T. 30 Apr. 2001, pp. 7-9; T. 19 June 2002, pp. 8-9.

[6] See, e.g., Akayesu (TC), paras. 130-156.

[8] See T. 14 Aug. 2002, p. 60, wherein it was decided by the Chamber that such notes are privileged documents, and the Defence is able to draw the Chamber’s attention to any discrepancies between the witness’s statements and testimony. See also T. 17 June 2002, pp. 204-205, where a similar direction was given.

[12] Even if the Chamber decided not to do so in the present case, it is recalled that human rights case law does not contain a general prohibition against the drawing of adverse inferences from an accused’s silence, see judgements in the cases of John Murray v. UK (1996) and Condron v. UK (2000), delivered by the European Court of Human Rights.

[17] Prosecutor v. Nahimana et al. (“Media case”), Case No. ICTR-99-52-T, Decision on the Defence Motion Opposing the Hearing of the Ruggiu Testimony Against Jean Bosco Barayagwiza, 31 January 2002 (TC); see also T. 19 Sept. 2000, pp. 21-22.

[19] See Kayishema (TC), paras. 71-75; Kupreskic (AC), paras. 30-41; Kunarac (TC), paras. 558-563.

[21] Musema (TC), para. 108, confirmed in Musema (AC), paras. 205-206.