The trial has effectively been paralyzed since August, since the announcement by Mathieu Ngirumpatse, one of the three leaders of the former Rwandan presidential party, of his inability to be present at the proceedings.
The head of the medical department of the Tribunal, Dr. Marie-Françoise Epée -Hernandez, explained to the judges this week that the defendant could not assist nor participate in his trial for the next six months.
The judges, thus, are considering that Ngirumpatse be tried on one side and Edouard Karemera and Joseph Nzirorera on the other. The three men were the main officials of the former presidential party, the National Republican Movement for Democracy and Development (MRND), the former single party.
The First Instance Chamber, presided by Judge Dennis Byron, also the president of the Tribunal, could use its authority to continue the trial in the absence of the defendant, but the interpretation given of the right of the defendant to be present at his trial by the Appeals Chamber in 2007, in the same case, prevents it.
In July 2007, the first instance judges had refused that the trial be adjourned three days at the request of Joseph Nzirorera because of his health condition. They considered that the right to a fast trial was more important than the right to be present at his trial and had, thus, decided to continue the hearing.
Nzirorera appealed making the point that this absence was justified by an illness. He reminded that according to Articles 82 bis and 80 B) of the Rules of Procedure and Evidence (RPE) of the ICTR, the trial can continue in the absence of the defendant only if this one would persist in his refusal to be present and also where his behaviour would constitute an obstruction to the hearing.
The Appeals Chamber did not follow the arguments of the first judges. "In the circumstances of this complex and lengthy case, the Appeals Chamber was not satisfied that the three-day delay to the trial was sufficient to outweigh the statutory right of the appellant to be present at his own trial when the absence of the appellant was due to no fault of his own".
It interpreted the range of Article 20 (4) of the ICTR Statute which ensures that a defendant has the right to be present at his trial as the right for this defendant "that an accused has a right to be physically present at his trial".
The Appeals Chamber also considered that the argument of the first instance judges according to which the witness heard during the continuation of the hearing testified only against one of the three defendants, and, thus, did not relate to Nzirorera, is not relevant in the circumstances of a joint trial.
It is Articles 48 and 48 bis of the RPE of the ICTR which authorizes the joining of the proceedings and trials. Thus, can be tried together "persons accused of the same or different crimes committed in the course of the same transaction" or "persons who are separately indicted, accused of the same or different crimes committed in the course of the same transaction".
In any case, reminded Nzirorera in his appeal motion, Article 82 (A) clearly lays out that "in joint trials, each accused shall be accorded the same rights as he were being tried separately".
The joinder of the case is generally justified by the fact that it would make it possible to shorten the proceedings and would avoid the witnesses to come several times for the same testimony for different defendants. But the joinder can also serve as a strategy.
In fact, in this case initially called "Government I" and renamed Karemera et al., the wish of the prosecutor was to focus on the agreement in order to commit the genocide within the framework of the presidential party.
Currently, five joint trials are on hand before the ICTR. There is the trial against Karemera et al., the one known as "Butare", then the "Military I" and "II" trials, and finally the one called "Government II". They gather on the whole twenty-one defendants, while six are on trial individually.
But are the objectives reached? At the end of August the defendants had on average been in detention for eight years and 20 days and the number of days of hearings reached incredible proportions. Shalom Ntahobali, alleged leader of Interahamwe, prosecuted within the framework of the "Butare" trial, complained in September to be at 668 days of trial.
The separation of proceedings is allowed by Article 82 (B) "in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice".
It is clear that today, the completion strategy, reported by President Byron before the United Nations to render verdicts against 38 accused by the end of next year, as well as the fact that the defendants have been in detention since January 1998, does not incite to do nothing.
If this disjoinder was granted it will not be the first in the Karemera Trial . Indeed, in May 2004, Judge Andresia Vaz had rescued herself because of an "appearance of bias". Five months later, André Rwamakuba was separated from the case to be tried alone and a new trial, with a team of judges newly composed, started again in September 2005.
© Hirondelle News Agency