Arusha, August 17th, '99 (FH) - The defence counsel for top Rwandan genocide suspect Théoneste Bagosora on Tuesday told the International Criminal Tribunal for Rwanda (ICTR) that former Rwandan army officer Bernard Ntuyahaga was a key witness in his client's case and should therefore be protected. French lawyer Raphael Constant said ICTR judges had the power to ask Tanzania to suspend hearings of a Rwandan extradition request for Ntuyahaga.

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In an urgent motion, Bagosora's defence lawyers have asked the court to do so, and to take "all necessary steps [. . . ] to ensure the safety and security of Bernard Ntuyahaga until he appears as a witness in the trial of Mr. Bagosora". Constant argued that if Ntuyahaga were extradited to Rwanda, his life would be in danger and that it was unlikely he would be able to testify in the Bagosora trial. He said Ntuyahaga would be a vital witness regarding the murder of ten Belgian UN peacekeepers, along with former Rwandan Prime Minister Agathe Uwilingiyimana, in Kigali on April 7th, 1994. They were among the first victims of the genocide, which left up to one million ethnic Tutsis and moderate Hutus dead. At the time, Bagosora was top advisor (directeur de cabinet) at the Rwandan Defence Ministry, while Ntuyahaga was a top commanding officer for army logistics. Bagosora is currently awaiting trial at the ICTR on charges of genocide, crimes against humanity and serious violations of the Geneva Conventions on war crimes. Ntuyahaga turned himself in to the UN tribunal in July last year, asking to be a protected witness. He was subsequently indicted for the murder of the ten Belgian peacekeepers. However, the ICTR released him on March 29th this year, after the prosecution asked for the indictment against him to be withdrawn. He was arrested by the Tanzanian authorities the same day. Both Belgium and Rwanda put in an extradition request. Tanzanian authorities rejected the Belgian one, on the grounds that a suspect can only be extradited to the country where the alleged crimes were committed. Hearings of the Rwandan extradition request have been assigned to a court in Dar es Salaam but are still at a preliminary stage. Constant said that both the first and recently amended indictments against Bagosora charged him with direct responsibility in the murder of the Belgian peacekeepers. Ntuyahaga too, in the withdrawn indictment, was charged with direct responsibility. It was therefore clear, he said, that Ntuyahaga would be a key witness on the circumstances surrounding these deaths. He also cited certain witness testimonies regarding the murders. "These documents," he told the court, "prove irrefutably that, according to the prosecution, it was Bernard Ntuyahaga who brought the ten Belgian peacekeepers [. . . ] from the residence of the Prime Minister on the morning of April 7th, just before their death. " The peacekeepers were killed at Kigali barracks, where Ntuyahaga had taken them in his vehicle. Constant told the court that he therefore wished to bring Ntuyahaga as a defence witness in his client's trial, and asked the court take measures to ensure that the former army officer was "still alive" at the time. Bagosora's lawyer argued that the ICTR had a duty, under its Rules and Statutes, to ensure full and equitable rights for the defence, and to ensure the protection of witnesses and victims. He said member states were obliged to cooperate with the ICTR at all stages of the trial, and that the tribunal could therefore serve an order on Tanzania concerning Ntuyahaga. He refuted prosecution arguments that the Rwandan government had allowed its prisoners to come and testify at the UN tribunal. "Not only do a lot of people die in Rwandan jails, " he said, "but also Bernard Ntuyahaga is a Category One suspect. [. . . ] Up to now, the Rwandan government has not allowed a single Category One suspect to come here. "Constant explained that under Rwandan law, Category One suspects face the death penalty if found guilty, and cannot have their sentenced reduced. He pointed out that Rwanda had already carried out death sentences, and that no date had been set for Bagosora's trial. "We beg the court not to take the very real risk," he said, "that Ntuyahaga be dead by the time he is due to appear in court. "The prosecution, however, opposes the defence motion. American prosecutor David Spencer said that it was not appropriate as there was "no case pending" against Ntuyahaga. He said the protection of witnesses was a very important part of the tribunal's task, but that this was "not completely without limits". Ntuyahaga is wanted in Rwanda for genocide. Spencer said there was nothing to prove that the Rwandan government would stop Ntuyahaga testifying in Arusha. If that were not possible, he argued, there were other means of gathering testimony, either in written form or through video-conferencing. "Television is all well and good, "Constant responded. "But up until now the dead do not talk, even on television. "Court president Judge Lloyd Williams of Jamaica said the Chamber would deliberate and hand down its decision at a later date. JC/FH (BG§0817e)