Arusha, June 24, 2003 (FH) - A motion by the prosecutor in the "Military I" trial to modify the list of witnesses gave rise to a heated debate at the International Criminal Tribunal for Rwanda (ICTR) on Tuesday. The trial in which four former senior army officers of the Rwandan army (exFAR) are accused of having played a leading role in the 1994 genocide in Rwanda, is being conducted in Trial Chamber One of the ICTR.

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In one instance, Raphaël Constant, the lead defence counsel for Bagosora, called on the chamber to hold the prosecutor "in contempt of court for non compliance of the chamber's orders of April 8, 2003". Constant was referring to the final list of 121 witnesses that the prosecution had presented to the chamber. That list had been agreed upon after two earlier modifications. The original list had comprised of 800 potential witnesses of which the prosecutor had reduced to 250 before settling to the current number. The new twist to the trial came about after the prosecutor, Barbara Mulvaney, had sought to replace some witnesses in the list with new ones. In her motion, she had wanted to replace six factual witnesses with an expert witness as well as calling four new ones. The prosecution, represented by Christine Graham, argued that new evidence had surfaced from confessions in the ongoing Gacaca trials in Rwanda that warranted a change on the witness list. "A lot of evidence has come out of Gacaca. What are we supposed to do with it?", she asked, arguing that there was "new relevant material that must be heard". She then cited precedence in a case at the International Criminal Tribunal for the former Yugoslavia (ICTY) where material from Croatian intelligence archives had been accepted during appeal yet it had not been available for trial. One of Nsengiyumva's lawyers, Kennedy Ogetto, also objected to the introduction of new witnesses, arguing that it was not in his client's interest. "My client will be in a state of ambush every time he comes to court to confront witnesses called against him", complained the lawyer, adding that it was inconceivable that the prosecution could modify the witness lists as they wanted, all "in the name of fresh investigations and recovery of new evidence". Counsel Constant even went as far as asking whether it was the prosecution that was running the trial instead of the trial chamber. "Is this a real trial or are we just being used as alibis"? he inquired. This gave rise to the intervention of the presiding judge of the chamber, Judge Erik Møse from Norway who wondered whether the changing of the witness roster would go on indefinitely. "Is there not a limit to ensure a fair trial? he asked to the prosecutor. The chamber retreated to deliberate on the motion and is expected to render its decision soon. The trial began on April 2, 2002 and is currently hearing the testimony of a protected prosecution witness known as "OAB" to keep his identity secret. Judge Møse is assisted in chamber one by Serguei Aleckseievich Egorov from Russia, and Jai Ram Reddy of Fiji. KN/CE/FH (ML'0624e)