02.07.07 - ICTR/WITNESSES - FIRST PROSECUTION FOR PERJURY BEFORE THE ICTR

Arusha, July 2nd 2007 (FH) - The indictment for perjury recently issued before the International Criminal Tribunal for Rwanda (ICTR) is a premiere for a tribunal where not a single trial was free from such suspicions.   
3 min 35Approximate reading time

The indictment followed an independent investigation initiated in 2005 by the chief Prosecutor, Hassan Bubacar Jallow, following accusations expressed during the appeal trial of Jean de Dieu Kamuhanda, former Rwandan Minister of higher education, scientific research and culture. Other cases had been previously evoked but not prosecuted.
 
The problematic of "false witnesses" has been raised regularly, by the Prosecution as well as the Defence. Among the previous proceedings, some were given up due to lack of evidence, some others, like in Nsengiyumva case (a senior military officer) where the Defence had lodged a complaint in July 2003, led to nothing.
 
Jean de Dieu Kamuhanda was sentenced to life imprisonment in January 2004. During the appeal hearing, two Prosecution's witnesses withdrew their testimonies. An investigation for perjury or contempt of court was carried out in May 2005.
 
The Appeals Chamber confirmed the sentence in September 2005, not waiting for the results of the investigations led by an American Prosecutor, independent from the ICTR, Loretta Lynch.
 
This procedure for perjury could have important consequences in the Kamuhanda case, completed since three years. The witness GAA indicted was one of the main witnesses who testified against the former Minister. On the basis of these new facts, a motion for a review could be filed.
 
This case took a new turn with the arrest by Rwandan authorities of a Rwandan lawyer, Leonidas Nshogoza, a member of the Defence team for Kamuhanda. In another case, the Rwandan authorities blame him for having attempted to convince a witness to change his statements, in favour of the defendant.
 
The files of both the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) are mainly built on testimonies. Before the ICTR, a lot of witnesses are repentant persons. Others were tried by the Rwandan courts and some of them confessed having lied before these courts to "save their lives". The Defence often accuses some of them of being "fiction witnesses", "barefaced and obvious liars" or "a band of denunciators". It considers that testimonies like these are of no big significance.
 
A lot of testimonies are fragile. When the witnesses appear before the judges, more than ten years have passed and the statements made sometimes differ from the first ones given to the investigators. It is not seldom that Prosecution's witnesses become Defence's ones and vice versa.
 
The ICTY only faced one perjury, in 1996. Dragan Opacic, sentenced to 10 years' imprisonment for genocide and war crimes by a court in Bosnia-Herzegovina, was called to testify against Dusko Tadic, former leading member of the Serbian Democratic Party and former member of the paramilitary forces.
 
After his testimony, the Prosecution told the Trial Chamber that it did not consider the witness as sincere anymore. Two months later, the Chamber ordered an investigation. After that, the Prosecutor did not decide prosecutions against this witness pursuant to article 91 of the Rules; nevertheless, the Chamber ordered his return to Bosnia-Herzegovina.
 
Apart from "false witnesses", the parties often accuse each other of subornation or perjury or having put pressure on witnesses. In the Kamuhanda case, the request for investigation of the Appeals Chamber was based on alleged perjury and the attitude of two former members of Witnesses and Victims Support Section of the ICTR which characterized a contempt of court (threatening, intimidating, causing an injury or offering a bribe). The indictment filed by the Prosecutor, who claimed to be impatient to prosecute these occurrences, does not mention the prosecutions against the two former members of the ICTR. Neither does it mention the facts of suspected subornation in the former journalist Ngeze case, which had also been object of the investigation.
 
While prosecutions for contempt never occurred before the ICTR, sixteen cases were treated by the ICTY. Thirteen addressed the disclosure of the identity of protected witnesses; five of these cases also concerned intimidation and pressure. The prosecutions led to seven convictions. Before the ICTY, persons committing contempt are liable to seven years' imprisonment, five years before the ICTR.
 
According to the ICTY jurisprudence, the prosecution for contempt of court by the international tribunals pursuant to article 77 of the Rules of procedure and evidence is derived from their inherent power of sanctioning any interference with the administration of justice in order to guarantee that their "fundamental judicial function [be] saved" (Tadic case, judgement of 31 January 2000 relative to alleged facts of contempt against Milan Vujin). It also aims at the efficiency of the witness protection before the tribunals.
 
In this matter, the two tribunals (ICTR and ICTY) do not follow the same policy. However the protection of witnesses from Rwanda on the one hand, and from former Yugoslavia on the other hand, do not have the same scope. The protection organized in Rwanda is an open secret. The territory is small and the communitarian links are very strong, which easily makes fail a system of protection because this one quickly becomes well-known. Guaranteeing the witness protection and its possible sanctioning is a complex problem for the ICTR.
 
The annual reports of the ICTR regularly recall that "without witnesses, there would be no trial" since, pursuant to the common law rules, they are the main source of information and evidence. "No witness will accept to come to Arusha to testify if he doesn't feel well protected", the ICTR repeated, while not taking a firm position on this matter.
 
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