Arusha, May 18th, 2000 (FH) - The defence lawyer for former Rwandan military leader Gratien Kabiligi on Thursday asked the International Criminal Tribunal for Rwanda (ICTR) to order a prosecution investigation into the downing of the presidential plane over Kigali on April 6th, 1994, which sparked the Rwandan genocide. "The attack which provoked the tragic events in Rwanda is indeed part of this Tribunal's mandate," argued Togolese defence counsel Jean Yaovi Degli.

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He reminded the court that the ICTR had extended cooperation to French examining magistrate Jean-Louis Bruguière, who is this week interviewing seven ICTR detainees as part of an inquiry into the crash. Degli said that if it turned out that the 'plane of former Rwandan president Juvénal Habyarimana had been shot down by the Rwandan Patriotic Front (now in power in Kigali) and not, as previously thought, by Hutu extremists, then "we would have to re-write the whole history of the genocide". He said Prosecutor Carla Del Ponte had admitted this herself. "If the Prosecutor fails to carry out such an investigation, it is as if she is refusing to carry out her full mandate, which includes working for truth, peace and reconciliation," Degli told the court. "Do we want trials based on the truth, or based on uncertainty?" Degli continued. "The trials here have a fundamental historic purpose, like those of Nuremberg. Let us not have to hold them again. Let us not have to look back and say that we made more mistakes than we did good. "Degli argued that such an inquiry would not slow the trial down, because the Prosecutor already had certain elements under seal which could be followed up. He was referring to a 1997 UN memorandum, leaked to a Canadian newspaper on March 1st this year. The memorandum suggests that Paul Kagame, now the president of Rwanda, and the Rwandan Patriotic Front (Tutsi rebel army which ended the genocide in July 1994) could have been behind the 'plane attack. In the wake of the leak, the UN found the document in its archives, saying it was written by former ICTR investigator Michael Hourigan "on his own initatiative". The document was sent to the ICTR, whose president has put it under seal. So far there has been no explanation as to why former Prosecutor Louise Arbour did not follow up the information contained in the memorandum. Kabiligi, a Brigadier-general in the former Rwandan army, is charged with genocide and crimes against humanity. He is expected to be tried with other former military leaders in a joint trial. In answer to a question from the judges, his defence counsel said that knowing who downed Habyarimana's 'plane would not change the criminal responsibility of those who subsequently carried out the massacres of some 800,000 Tutsis and moderate Hutus. But he said his client was also charged in connection with the planning of genocide, and that the downing of the 'plane was a key part of that. Degli said that if the court did not decide in favour of ordering such an investigation from the prosecution, it could order an investigation into the crash from a UN member state or relevant organization such as Interpol. Prosecutor Chile Eboe-Osuji of Nigeria told the court that investigating the crash was not part of the mandate of his office. He said the Prosecutor's mandate, as defined by the ICTR, was to prosecute serious violations of international humanitarian law committed in Rwanda in 1994. "Along that line of investigations, we have evidence that certain people, including Kabiligi, committed very serious crimes, including genocide. That is what we are primarily doing in our work [. . . ], in order that crimes like that should be prosecuted. The matter of who caused the plane crash is of marginal value in the case of Kabiligi. "Eboe-Osuji suggested that if, for historical reasons, Degli wanted to find out who downed the 'plane, he was "paid by the ICTR to conduct investigations" and might like to do it himself. He told the court that Degli had presented no legal arguments relevant to his case. Eboe-Osuji also said the alternative request, that a member state could be ordered to carry out an inquiry, was a moot point because the French government had already started one. "Why don't we wait and see what the French government comes up with?" he asked the court. The French government is investigating on behalf of the families of the four French crew who died in the crash, along with Habyarimana and the Burundian president Cyprien Ntaryamira. Top anti-terrorist judge Bruguière, who is conducting the investigations, is currently at the ICTR. He has been granted permission to interview seven detainees this week, in connection with the crash. The detainees include former journalist Hassan Ngeze, who claims he knew as early as September 1993 that the RPF was planning to kill Habyarimana. The Kabiligi motion was heard before Trial Chamber Three of the ICTR, composed of Judge Lloyd George Williams of Jamaica (presiding), Judge Yakov Ostrovsky of Russia and Judge Pavel Dolenc of Slovenia. Judge Williams said the court would deliberate before handing down its decision. JC/FH (KB%0518e)