Arusha, June 28, 2001 (FH) - Prosecutors broke a witness protectionorder, contacting two key defence witnesses and obtaining statements fromthem through a third party, the lawyer for genocide suspect FerdinandNahimana told the International Criminal Tribunal for Rwanda (ICTR) onThursday. French defence counsel Jean-Marie Biju-Duval said this was donein such a way as to intimidate the witnesses.

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"The defence would ask the court to state, stigmatise and condemn thisaction," Biju-Duval told the court. "It is our view that the manner of theviolation and the prejudice it may cause could also lead the ICTR todeclare the prosecutor in contempt of the Tribunal. "Nahimana's lawyer said that the Prosecutor had written to the Belgianauthorities, soliciting a rogatory commission to interview in Belgiumwitnesses supporting Nahimana's defence of alibi. As a result, Belgianexamining magistrate Damien Vandermeersch summoned the two witnesses andput questions to them as directed by the Office of the Prosecutor of theICTR. According to Biju-Duval, these questions included asking them whetherthey were willing to return to Rwanda and whether the Rwandan authoritiessuspected them of involvement in the 1994 genocide. Biju-Duval stressed that he was in no way questioning the integrity of theBelgian judge. But he said that such a witness, who did not know why he hadbeen summoned, would be led to feel that he was "above all a potentialaccused for the Rwandan authorities and why not for the ICTR?" The lawyersaid the witnesses would then have to "redouble in courage" to come andtestify in Nahimana's defence. He argued that the Prosecutor was in violation of a court order on witnessprotection which, he claimed, covered these two witnesses. That order, hesaid, forbids the Prosecutor from communicating information to any thirdparty which could reveal the identity of protected witnesses. It alsoforbids that the Prosecutor contact any such witnesses without informingthe defence and the court. "Were there any protection measures in force for these two witnesses? Theanswer, it is our submission, is no," replied William Egbe of Cameroon forthe prosecution. He said that the prosecution had merely been fulfillingits duty under ICTR Rules to investigate the defence notice of alibi whichposed "a significant and crucial challenge to the allegations in theindictment". Egbe made reference to a recent court decision which he said made adistinction between "direct" and "indirect" contact with protectedwitnesses. He said the Prosecutor had sought to preserve the integrity ofthe judicial process by making contact indirectly with these witnesses. Moreover, he argued, this had been done by objective judicial authorities. Presiding judge Navanethem Pillay of South Africa said that the courtwould deliberate before rendering a decision on the matter. The case isbefore Trial Chamber One, composed of Judges Pillay, Erik Mose of Norwayand Asoka de Zoysa Gunaweardana of Sri Lanka. JC/FH (ME0628f)