The appellant, Ferdinand Nahimana, was sentenced to 30 years in prison for having, as a senior official, directly and publicly incited the commission of genocide and for persecutions as crimes against humanity by means of broadcasts on RTLM radio.
The request for re-examination of Ferdinand Nahimana is not a request for revision as envisaged by Article 25 of the Statute which allows a Chamber of the tribunal, "Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chamber or the Appeals Chamber and which could have been a decisive factor in reaching the decision", to revise the sentence which it rendered.
In fact, he considers that the Appeals Chamber committed an error of fact by affirming that he had not expressed an objection against the admission, into evidence, of the testimony of Alison Des Forges, an expert witness. He requests that the Appeals Chamber correct its error.
Alison Des Forges, a historian and consultant for the NGO Human Rights Watch (HRW), was called to testify in first instance as an expert witness for the prosecution. Something that she has done many times at the ICTR. But this testimony raised various types of problems, Jean-Marie Biju-Duval, lawyer for Ferdinand Nahimana, told Hirondelle Agency.
First of all, it was based on second degree hearsay. Indeed, the expert stated the remarks of a French diplomat, Jean-Christopher Belliard, who had told her that he had heard a telephone conversation between his superior, the Ambassador of France Yannick Gerard and Nahimana.
The second problem was, as reminded by the Appeals Chamber itself in its ruling against the appellant, that an expert witness as Mrs Des Forges "assists the Trial Chamber in the appreciation of evidence before the court and not testify upon the facts in issue as would an ordinary witness". In spite of that, without the French diplomat being heard, the First Instance Chamber and the Appeals Chamber accepted this testimony as evidence in the case against Nahimana.
The appeal judges explained in their ruling that it is because the defence did not express an objection that they decided to do so. They had considered that the defence had "renounced its right to make an objection as to the admissibility of this aspect of her evidence".
It is exactly what Mr Biju-Duval was disputing in the motion filed on behalf of his client. He wants to show, by basing himself on passages from transcripts of the first instance trial, on a motion from 10 May 2002, and on the appeal brief, that the defence "objected vociferously and on several occasions" against the admission of these statements reads the motion.
The testimony of Des Forges was more than determining in the establishment of the responsibility for Nahimana, it is the "cornerstone" of the judgment of Nahimana, according to his lawyer. "If the Appeal Chamber thoroughly examines these elements it will note that they do not have any value, and if they were to be rejected then the consequence will be an acquittal", he said.
There are no specific legal bases in support of the request formulated by Ferdinand Nahimana. "But the possibility of re-examining a final judgment independently of the power of revision exists that has already been ruled", explains Biju-Duval.
Some motions for re-examination of a final judgment have already been filed at the two ad hoc tribunals, forging, little by little, the jurisprudence. It is, today, clear and calls for the "inherent jurisdiction [of the international tribunal] to reconsider any decision including a judgment where it is necessary to do so in order to prevent an injustice".
Appeals Judge Mohamed Shahabudeen said during various dissenting opinions, that there were, indeed, exceptional cases, as the risk of a miscarriage of justice, which, even if they do not meet the criteria of Article 25 of the Statute, can be revised. "That power can only be the inherent jurisdiction of the Appeals Chamber", (decision of 06 March 2006 in the case of Eliezer Nyitegeka, former Minister for Information).
This concept of inherent jurisdiction was very broad, it was not mentioned as such in the Statute but arises, according to the jurisprudence of the ad hoc tribunals, from the exercise of their jurisdiction. It is the jurisdiction "to take care that the exercise of the jurisdiction which is expressly conferred to it by the Statute is not hindered and so that it can fulfill its fundamental legal functions" (Mucic, ruling relating to the sentence, ICTY, 4 August 2003).
In the Mucic ruling at the ICTY, the Appeals Chamber allows the re-examination of a past ruling sullied with "a glaring error of reasoning" or if it "was rendered per incuriam" (i.e., without reference to a legal basis or a relevant past judgment). It also allows it if the ruling "led to an injustice".
The Appeals Chamber explained that it is a question of mitigating the inexistence of recourse for appeal to correct an injustice arising from a ruling.
No motion of this kind has yet been successful, either at the ICTR or at the ICTY. But Mr. Biju-Duval was optimistic: "I trust the judges as they have already showed their perspicacity and their clearness by removing the majority of the counts of the indictment against Nahimana", he said.
© Hirondelle News Agency