ANNEX B

AKAYESU’S GROUNDS OF APPEAL[935]

A.     First Ground of Appeal: Akayesu was denied the right to be defended by Counsel of his choice

First notice of appeal

The Accused was deprived of the choice of counsel from January 1998 when his trial opened.  The Prosecution, in the person of Sarah Dareshori who was prosecuting the case, made public pronouncements about this in the New York Times.  Proof thereof will be provided. (made available).[936]  

The Accused was forced to accept Patrice Monthé and Nicholas Tiangaye whom he had earlier turned down. They were solely the choice of the Registrar.[937]

Disclosure was inadequate because the Prosecutor supplied names of witnesses too late, thereby impeding the preparation of a full answer and defence.[938]

At some stages in the proceedings, the Accused was forced to defend himself since no counsel of his choice was assigned to him in spite of his requests.[939]

Second Notice of appeal

(a)                The Court and the Registrar deprived the Appellant of the right to choose his Defence Counsel.  He could not have his first choice,  Johan Scheers because of Andronico Adede, the former Registrar dismissed for his incompetence and Prisca Nyambe who worked for the Registrar’s Office.  On 31 October 1996,  Michael Karnavas, Mr. Scheers’ assistant who had contacted Scheers in Belgium, illegally coerced the Appellant to “choose” him as Defence Counsel in replacement of Mr. Scheers.  The Appellant dropped Michael Karnavas because of his deceitful manoeuvers.  Moreover, it has been discovered that Karnavas had been a candidate to work as Prosecutor and that he has already written and stated that he could never defend a “genocider.”  Appellant’s second choice was Michel Marchand from Montreal, Canada who was present at the opening of his trial on 9 January 1997. The Prosecutor knew he was present as recognized by Prosecutor Sarah Dareshori in the New York Times on 8 September 1998.  The Court and the Registrar illegally refused requests by Mr. Marchand to address the Court and meet his client.  The Tribunal imposed on the Appellant two Counsel assigned by the Registrar on 9 January 1997, namely: Nicholas Tiangaye and Patrice Monthé.  The trial began.  The Appellant refused these two Counsel whom he did not know, did not want and who had not prepared his defence in the first trial for genocide since Nuremberg.  This treatment of an accused is a flagrant violation of the Statute of the Tribunal and the fundamental principles of Human Rights.  It is also totally different from the treatment of accused persons at Nuremberg: the Court in Nuremberg painstakingly ensured that this fundamental right of every accused to choose his own Defence Counsel was respected.  According to some information available to the Appellant, the International Criminal Tribunal for the Former Yugoslavia recognizes the right of an accused person to choose his own attorney who is subsequently assigned by the Registrar.  This is an error in law that goes to jurisdiction causing irreparable prejudice to the Appellant.  The Appellant will show proof of this violation of his fundamental right and of its consequences.

(b)               After the registrar imposed on the Appellant the two Counsel he did not want, he fired them and asked to defend himself.  For three days, he defended himself and asked the witnesses questions.  The Court illegally allowed the two fired Counsel,  Patrice Monthé and  Nicholas Tiangaye, to ask questions.  The Court then forced the Appellant to accept these two Counsel thereby violating the Tribunal’s Statute that allows an accused to defend himself.  This is an error of law which goes to jurisdiction and is in violation of the Statute of the tribunal.

(c)                When the Court imposed upon the Accused the two Counsel whom he did not know and did not want, Judge Laïty Kama told him that the attorneys were competent and that he did not have the right to represent himself.  But, at the time of the closing arguments by the Prosecutor,  the two Counsel considered “competent” by Judge Kama were absent.  The Court asked the Prosecutor to present his arguments in the absence of the two Counsel.  And, this part of the trial continued without the appellant being represented.  The Court committed an error of law which goes to jurisdiction.[940]

B.   Second ground of appeal: Akayesu was denied the right to a competent Counsel.

First notice of appeal

The Chamber objected to the presentation of 19 important Defence witnesses, thus committing an error which goes to jurisdiction, in violation of the Statute of the International Criminal Tribunal for Rwanda (ICTR) as well as the basic rights of the Accused.[941]

The Accused was not represented by a competent lawyer.  All the lawyer did was to bungle the entire case.[942]

The Chamber called General Dallaire as an expert witness, thus causing an irreparable prejudice to the Appellant.[943]

The Chamber lost all jurisdiction by asking the Prosecutor to present her arguments in the absence of Counsel for Accused.[944]

Second notice of appeal

The Accused was deprived of his right to full answer and defence because he was deprived of the right to a full defence by a competent or appropriate Counsel. The trial was totally affected by this violation causing a complete denial of justice for the Accused.  The errors include among others:

(i)         The two attorneys assigned to defend him at the beginning of the trial had no choice but to ask for a postponement.  They did not know the Accused, were not apprised of the evidence and could not defend the Accused adequately.  For a fair defence, an accused person must be able to exchange and discuss the issues of the trial with his Counsel, decide if he has confidence in his Counsel, and inform him of all the details of the trial.  This all must be done well in advance.  It is all the more important given the seriousness of the charges – genocide and crimes against humanity -  the eventual penalty and the stigma attached to a conviction.

a.                   The two assigned attorneys did not contact John Scheers who had already accomplished a great deal of work for the Accused.

b.                  The attorneys committed an unacceptable error in calling in defence as an expert witness the Canadian Romeo Dallaire.  He was no more than an eyewitness. They could not therefore cross-examine General Dallaire on his close relations with General Paul Kagame, present dictator of Rwanda , nor on his divergent points of view such as his interview on French CBC television on 14 September 1994, where he said:

Question from the Audience: Was it a two-sided genocide, as much by the Hutu as by the Tutsi?

Dallaire:            I would say that there was a national genocide, rather a genocide of a political nature, but not purely ethnic.  Many Hutu and many Tutsi were killed.  I would not deny that there were massacres behind the lines of the RPF just like there were massacres on the other side.  But there is a wish to bring those people to justice and have them answer for their acts.  Both sides should be sent to Court.

(…)

Jean-François Lépine from the Canadian Broadcasting Corporation.

(…) the assassination of the President allowed for the implementation of a plan that existed, a plan of extermination?

Dallaire:            One hypothesis, there are dozens of hypotheses (…) rather on the political level, to eliminate the coalition of moderates. (…) But the excesses which we witnessed go much beyond that which could be conceived .  But there was a process of political destruction of the moderates. (…)  But, never, I think, could anyone have planned the scope of the excesses.

Source:  Roméo Dallaire: un homme d’honneur/ Societé Radio Canada
Le point, 14 Septmber 1994.  Duration 27 min. 30 sec.

c.                   The attorneys made unacceptable admissions in the trial.  The most serious is to have conceded that on legal terms a genocide had taken place in Rwanda in 1994.

d.                  The attorneys did not call one or more expert witnesses to counter the dubious expert testimony of Alision DesForges.  In this appeal, the Appellant will correct this failing.

e.                   Counsel admitted several other uncorroborated facts the details of which will be systematically provided from transcripts of hearings.

(vii)      With respect to the syndicate of false witnesses paid and prepared for testimony before the International Criminal Tribunal for Rwanda, the attorneys failed to make specific evidence concerning each prosecution witness as required by Common Law.

(viii)      The attorneys did not ask the Appellant to testify to counter specific allegations of several witnesses thereby committing an error in Common Law.[945]

In its haste to end the trial, the Court deprived the Appellant of his right to full answer and defence by illegally refusing the testimony of fourteen important Defence witnesses.  This error of law and fact and law goes to juristiction.[946]

The Court erred in law in deciding that General Romeo Dallaire was an expert witness thereby causing a miscarriage of justice.  Dallaire was witness on fact and nothing else.[947]

C.        Third Ground of appeal: Biased and Partisan Tribunal

First notice of appeal

The Trial Chamber is not neutral.  Evidence thereof will be made on appeal.  In particular, its members spoke on several occasions about the collective guilt of the Hutu, of whom the Accused is one.[948]

The Chamber ruled ultra petita that there was a planned genocide in Rwanda between April and July 1994.[949]

It is impossible for an accused to enjoy a fair trial in the context of continuous warfare in the region and in the context of intimidation and killing of potential Defence witnesses.[950]

Second notice of appeal[951]

(e)                The Court was illegally formed by the Security Council contrary to the provisions of the Charter of the United Nations thus judgement rendered is totally invalid.

(f)                 The Court is not neutral.  The only accused are from one side of the conflict. The Ugandan RPF aggressors are totally unpunished and only those on the resistance side are accused for excesses apparently committed in the final phases of the four-year war of invasion, illegal under African law.  The final phase commenced with the missile attack on the Presidential airplane on 6 April 1994.  For example, the Gersony Report, accepted by the High Commissioner of the United Nations, confirmed that the victorious RPF had murdered at least 30,000 persons, mostly Hutu, between June and September 1994.  There are no accusations based on this report hidden from the public for the last four years. 

(g)                The members of the Court are not neutral.  Judge Laïty Kama has behaved in a highly partisan manner.  He sees his mission as one of punishing the authors of “genocide”.  He made public statements on several occasions about the collective guilt of the prisoners such as the arrest of “big fish”.  In a speech in Ethiopia, he spoke of where the convicted should serve their sentence.  Had he decided that he would convict some accused?    Proof of this allegation, though known to all the parties before the Tribunal, will be offered at the hearing on the merits of this appeal.

(h)                Judge Laïty Kama has also systematically violated the presumption of innocence of the Appellant.  When several witnesses, alleged to be victims of sexual violence, finished testifying, he expressed sympathy for their suffering even before the Defence had begun.  He decided they were telling the truth in advance.  The Appellant contested this evidence which was eventually accepted in the final judgement.  By deciding in advance that the witnesses were telling the truth, the judge violated the presumption of innocence, thereby invalidating the entire trial.

(i)                  Judge Navanethem Pillay also violated systematically the presumption of innocence of the Appellant.  She went on a public speaking tour before the defence had begun.  Without commenting on individual testimony, she stated publicly on 12 November 1997, on a radio program on the Canadian Broadcasting Corporation (CBC) that victims of  sexual violence in Rwanda don’t dare use explicit sexual words.  The only proof to that effect is a declaration by Prosecutor, Pierre-Richard Prosper.  She also spoke of 200,000 victims of sexual violence and a political strategy of sexual violence none of which was proven properly before the Court.  She made similar comments in at least one magazine and at a colloquium at York University, Toronto.  She violated hereby the presumption of innocence of the Appellant.  Proof thereof will be made at the hearing of this appeal.  This error invalidates the final judgement.

(j)                 Judge Lennart Aspegren made the well-known comment that the prisoners at Arusha are too well treated as if he was echoing complaints of the Kigali Government.  Proof will be made at the hearing of this appeal.  He violated the presumption of innocence of the Appellant and his duty of neutrality.

(k)               There is another ground for finding bias in the Court in its fact finding.  The Court erred in law and in fact in referring on nine occasions without exception to the missile attack on the Presidential airplane which took place on 6 April 1994 as a “crash”. (Judgement in English).  It was not a “crash” but rather an attack by a land to air missile.  This attack, which sparked the political and interethnic conflict which began in April 1994, was wrongly classified and therefore affected the appreciation of evidence as a whole.  A crash could be an accident while a missile attack on the airplane carrying two Hutu presidents has highly political connotations and consequences.  The Court put its head in the sand concerning the key issue: Who is responsible for the missile that killed the President of Rwanda, a country under siege in a four-year war of invasion?  In committing this monumental factual error, the Tribunal caused a miscarriage of justice for the Appellant.

(l)                  It is impossible for the Accused to be tried fairly in the context of continual war in the region and the context of intimidation and assassination of real or potential witnesses for the Defence.  The aggressive war on Rwanda by Uganda and the Rwandan Patriotic Front was transformed into a war of aggression by Rwanda and Uganda against Zaire (1996-1997) and then against the Congo-Zaire since 2 August 1998.  War is raging in the interior of Rwanda.  Rwanda is a monoethnic dictatorship.  The Rwandan Patriotic Front uses terror throughout Africa, Europe and in Canada.  Any witness expressing ideas contrary to the position of the RPF risks his life.  One might mention the case of Mr. Fidèle Uwiyeze, a witness from Rwanda concerning the Remera Brigade.  According to Amnesty International, he has disappeared and is presumed dead.  Furthermore, there is no agreement with countries such as Kenya so that potential witnesses can return there after testifying.  Many of such witnesses are illegal residents of Kenya.  Several witnesses for the Appellant are afraid and did not testify.  The only remedy is to order a stay of proceedings.

(m)              The Court is not functional, lacking a subpoena power, a power to force the appearance of witnesses.  The only real power of constraint held by the Court is its power - legally dubious at that- to force the arrest of a suspect in a third country and his/her transfer -also probably illegal- to the seat of the Tribunal in Arusha.  This power imbalance-a real power to arrest accused wherever they are as opposed to the absence of a power to force the attendance of a witness from afar causes a miscarriage of justice for the Defence.  Furthermore, it is up to the accused to justify the calling of witnesses while generally in an accusatory legal system, the accused chooses his witnesses without the intervention of the Court.

(n)        The Tribunal erred in fact and in law by characterizing the conflict in Rwanda in 1994 as an internal armed conflict.  On the contrary, it was an illegal war by Uganda against Rwanda.  On 22 September 1998, President Yoweri Museveni of Uganda even admitted to the Ugandan Parliament that his country had participated materially in favour of the Rwandan Patriotic Front in the four-year war.  The consequence of this error is a full misunderstanding of the conflict.  Those who resisted aggression and the infiltration of the enemy become the guilty ones, the “genociders” and those who collaborated with the veritable war makers are considered the victims.  This error caused a miscarriage of justice.

(o)        In the same way, the Court made a major error in concluding that it was necessary to distinguish fully between the military conflict between the Rwandan Patriotic Front (RPF) and the Rwandan Armed Forces (RAF) and the conflict between those who were not ostensibly military personnel.  RPF had members infiltrating Rwanda since October 1990.  The parties in this “civil” conflict coincided exactly with those of the military conflict and were inseparable.  This specious distinction is contrary to the facts entered into evidence, contrary to additional facts to be adduced and caused a miscarriage of justice for the Appellant.

(p)               The Tribunal ruled ultra petita that there was genocide in Rwanda between April and July 1994.  To decide on the Appellant’s case, as the Court admitted, it was not necessary to decide whether or not there was genocide in Rwanda between April and July 1994.  The Appellant submits that the Court made a political declaration that was unnecessary.  A court has no right to go beyond the facts and issues necessary to resolve the issue before it.

(q)               The Court erred in concluding that there had been a planned genocide against the Tutsi in Rwanda between April and July 1994.[952]

D.        Fourth ground of Appeal: other fatal errors invalidating the guilty verdict.

1.      First sub-ground: illegal amendment of the initial indictment.

First notice of appeal

The Chamber, composed of Judge Laïty Kama, Judge Navanethem Pillay, Judge Lennart Aspegren, accepted an amendment to the indictment, thereupon adding the crimes of rape, at the behest of the Prosecutor, on a third party.  Logically, these judges should have stood down, yet they are the same who constituted the bench that tried the Accused contrary to established general principles of law.[953]

Second notice of appeal

On 17 June 1997, the Tribunal erred in law in allowing the amendment of the indictment to include three new counts of sexual violence.[954]

2.   Second sub-ground: unlawful use of prior statements

First notice of appeal

Disclosure was inadequate because the Prosecutor supplied names of witnesses too late, thereby impeding the preparation of a full answer and defence.[955]

Second notice of appeal

The Court erred in taking collective blanket decision to consider as more truthful the witness statements before the Court as opposed to their prior out-of-court statements.  Whenever there is divergence between a statement made in court and one made out of court, the Court must consider on an individual basis-witness by witness and statement by statement – the divergences between the out- of- court statement and the statement in Court.  In taking a blanket decision, the Court violated the presumption of innocence and favoured unduly Prosecution witnesses thereby causing a miscarriage of justice.[956]

3.         Third sub-ground: the non-application of the criteria of reasonable doubt, errors of fact

First notice of appeal

In its judgement, the Trial Chamber drew fallacious conclusions as a result of its poor knowledge of the geography of Taba commune.  Furthermore, it did not take into consideration the discrepancies in the timetable of the Accused contained in the accounts of Prosecution witnesses.[957]

The Chamber based its judgement solely on the testimonies of Prosecution witnesses, having dismissed beforehand the testimonies of Defence witnesses.  This will be amply demonstrated.[958]

The Chamber often attributed probative value to irrelevant testimony.[959]

The Chamber did not take into account serious contradictions in the testimony of Prosecution witnesses.[960]

The Chamber contradicted itself on many points of fact.[961]

In Canada, Judge Navanethem Pillay of Trial Chamber I made public pronouncements on the credibility of Prosecution witnesses even before the Defence had presented its evidence, thereby demonstrating her flagrant partiality.[962]

In New York, Judge Laïty Kama, for his part, publicly admitted that there was evidence of rape prior to the presentation of evidence by the Defence, and equally demonstrating his prejudgment.[963]

The Chamber dismissed without any valid grounds therefor the motion by the Accused for an inspection of the site for the purpose of forensic analysis.[964]

Second notice of appeal

The Court rendered its judgement using the wrong burden of proof, by applying the standard of the “balance of probabilities” rather than the standard of “beyond all reasonable doubt.”[965]

The Court distorted the testimony of several witnesses.  For example, it concluded that the Appellant was looking for Tutsis whereas the evidence shows that he was looking for RPF infiltrators.[966]

4.         Fourth sub-ground: out-of-court evidence

Amended in the Decision of 24 May 2000[967]

The Tribunal rendered its judgement on the basis of out-of-court evidence, without the trial of the Appellant, in the absence of the accused and without his knowledge. The presumed change in the attitudes of the préfets and bourgmestres following the meeting of 18 April 1994 and the presumed change in the attitude of the Appellant, was the core of the trial.    Whereas in the trial of Georges Rutaganda on 14 October 1997, the Tribunal  proprio motu or officially made comments appreciating the evidence tendered in the trial of the Appellant during the testimony of expert Filip Reynjtens and put questions to the latter that were directly material to the trial of the Appellant.  The expert testified on those issues.  Furthermore, the trial Chamber allowed expert Filip Reynjtens to make negative and disparaging comments on the case-file of the Appellant without any objections whatsoever.  That error alone is an error in law (miscarriage of justice) which invalidates the decision.  This will be demonstrated at the hearing of this appeal.

5. Other issues

(a)        Judicial notice of United Nations investigation reports

Second notice of appeal

The Court erred in deciding that it could take judicial notice of some reports the contents of which are contested by the Appellant.[968]

(b) Interpretation

First notice of appeal

The Chamber used the services of an interpreter, a member of ARFM, to interpret the testimony of women who had come to testify on rape, whereas the said interpreter had just organized demonstrations in Kigali against sexual assault.  ARFM is the association of Rwandan Media Women, well known for their political activities, and backed by the Tutsi regime in Kigali.[969]

(c)        Inaccurate transcripts

First notice of appeal

The Appellant notes that the transcripts of his trial are not accurate and are not in conformity with the cassettes of the hearings, which prevented him from preparing his defence as he would have liked to.[970]

Second notice of appeal

The Appellant notes that, according to preliminary information, the transcripts of his trial are not accurate and in conformity with audio tape recordings of the hearings and that important points are missing.[971]

(d)     Disclosure of evidence

Second Notice of appeal

The disclosure was inadequate because the prosecution provided witness names too late thereby preventing the preparation of a full defence.  Not all statements were disclosed.  The Prosecutor had about 90 hours of video or sound recordings of declarations of Jean Kambanda concerning the events dealt with in the judgement.  The obligation to disclose, whether it be relevant or non-relevant, is not at the discretion of the Prosecutor but it is almost absolute.  The Prosecutor had the obligation to disclose all the declarations of Jean Kambanda along with a detailed account of detention separate from the other accused without a lawyer and his handling by Canadian policeman Pierre Duclos.  The Appellant requests the Appeals Chamber of this Court to order disclosure.[972]

(e)     Expert witnesses

First notice of appeal

The Chamber took for irrefutable and universal truth the testimonies of Alison DesForges and Mathias Ruzindana, whereas their opinions are challenged in academic and scientific circles, or by other experts.  The Defence did not have an opportunity to present its own expert witness to rebut their testimonies.[973]

(f)         Witness protection

First notice of appeal

The Presiding Judge of Trial Chamber I and the Prosecution Counsel, Richard Proper, respectively disclosed the identity and address of DFX, Witness for the Accused, whereas he was a protected Witness.  The grave consequences that ensued were characterized, in particular, by threats to the security of Witness DFX, and the refusal of certain witnesses to come and testify in favour of the Appellant.[974]

Second notice of appeal

The Court did not respect its own rules nor enforce the respect for these rules concerning the protection of witnesses and the non-publication of their identities thereby depriving the Appellant of the right to call other witnesses who would then be afraid to testify.  The name of his wife and the identity of the préfet of Gitarama were rendered public.[975]

(g)        Pressure on witnesses and intervention by the Tribunal

The Chamber discriminated against certain Defence witnesses.  In certain cases, it did not hesitate to intimidate them.[976]

(h)        Informal conversation between a judge and a witness during proceedings

First notice of appeal

On more than one occasion, the Chamber allowed questions to be put to witnesses while the Appellant conferred with his Counsel, thus causing prejudice to the Appellant.[977]

Second notice of appeal

On at least one occasion, a member of the Tribunal, Judge Aspegren, continued asking questions to a witness while the Appellant was speaking with his lawyer causing a serious prejudice to the Appellant.[978]

E.         Fifth ground of appeal: Total absence of the rule of law

The Court was formed to bring the Rule of law to Rwanda and to end a so-called “culture of impunity”.  Since 1994, impunity is the rule for the new murderous dictators of Rwanda concerning their acts in Rwanda, in the east of Congo-Zaire from late 1996, 1997 and through 1998.  The Prosecutor, Appeal Justice Louise Arbour from Canada hired a Canadian policeman, Pierre Duclos, known for fabricating false evidence in the Matticks affair.  Duclos was assigned to “handle” former Prime Minister Jean Kambanda.  The behaviour of the Court and its administration and the systematic violation of the Appellant’s fundamental rights as described in this notice of appeal would not be acceptable in Canada and in the Court of Appeal of Ontario from which the Appeal Justice Louise Arbour received leave to work as Chief Prosecutor for this Court.  The Appellant has the right to recover his human dignity and his freedom.[979]

F.         Sixth ground of appeal: Improper hearsay evidence

First notice of appeal

In rendering its judgement, the Chamber lent credence to hearsay.[980]

The Chamber lent credence to circumstantial evidence not supported by any real evidence.[981]

Added to the Decision of 24 May 2000

The Tribunal acted unlawfully by admitting without verifying the credibility of hearsay  evidence thereby violating Sub-Rule 89 (C) of the Rules of Procedure and Evidence and disregarding the Judgement rendered in the Prosecutor v. Tadic.

G.                Seventh Ground of Appeal: Irregularities in the examination and cross-examination

First Notice of Appeal

The Chamber refuted the manner in which Counsel cross-examined Defence witnesses, whereas the Prosecution had recourse, albeit unperturbed, to the same methods in respect of Prosecution witness.[982]

The Accused was deprived of his right to cross-examine witnesses.[983]

Added in the Decision of 24 May 2000

At the beginning of the trial, at the hearing of 15 January 1997,  Presiding Judge Laïty Kama did not allow the Accused to ask leading questions in cross-examination of a Prosecution witness. Judge Kama made a policy statement on this issue. Such prohibition is unlawful. Leading questions are almost always allowed in cross-examination. On the other hand, Judge Kama allowed the Prosecution to put leading questions to its own witnesses on many occasions during the proceedings. Leading questions by a Counsel to his own witness are in principle not allowed.

H.        Eighth Ground of Appeal : Unlawful disclosure of Defence Witness Statements

Added in the Decision of 24 May 2000

On 28 January 1997, the Tribunal ordered that the Prosecutor should disclose to the Tribunal all witness statements and that all the statements referred to by the Prosecution or the Defence must be filed as exhibits. The final judgment establishes it.

I.          Ninth Ground of Appeal : the letter of Witness DAAX to the Judges

Added in the Decision of 24 May 2000

During the Appellant’s trial, on 3 March 1998 more specifically, Witness DAAX testified “for the Defence” in camera.

Witness DAAX, potentially a Prosecution witness at the outset, should normally have testified for the Prosecution, but the Prosecutor did not call him both because fear made the witness hesitant to come to testify and because such testimony as he would give would be favourable to the Defence, notably in view of his previous statement.

As the Prosecutor did not want to call Witness DAAX, the Defence, who was unable to secure the appearance of the witnesses it had cited, “recuperated” said witness and obtained that he testify “for the Defence” with leave of the Tribunal. DAAX accordingly testified for the Defence on 3 March 1998, upon being summoned as a Defence witness.

Prior to his 3 March 1998 testimony, the issue of the personal safety of the witness had been discussed in camera in the Chambers of the President of the Tribunal, Judge Laïty Kama, in the presence of Counsellors Pierre –Prosper Richard and James Stewart of the Office of the Prosecutor, Counsellor Nicolas Tiangaye, Defence Counsel, and Roland Amoussouga, OIC of the Witness Support Section. (The Minutes or conclusions of this meeting do not appear in the trial record).

Discussions at that meeting reportedly bore on the danger to the personal safety of the witness to leave Kigali to testify for the Defence, as shown by the motion filed by the Witness Support Section on 18 February 1998 (Case File, vol. VI, no. 84). In spite of the witness’s fear and the dangers explained by the Witness Support Section, the witness accepted to testify.

Another aspect of said testimony relates to its selective nature: the witness forgot facts material to the defence of the Accused, notably the requests he made for more gendarmes before 18 April 1994 as well as the statements he made at the meetings of 18 April at Murambi to the same purpose.

Such public blunders, indeed serious, did not end there : on the same day, after testifying, Witness DAAX wrote a confidential letter (Exhibit R-1) to Judges Kama, Aspegren and Pillay because he deemed it “proper, to recall or add to the questions or responses addressed to me or my representatives at the time of my appearance and, which, in my opinion would be of interest to the Accused, who did not call me and to the International Criminal Tribunal …”  That letter raises five (5) issues:

The witness wonders why the Accused wore a military shirt and carried an army rifle in spite of his advice or order (this point was raised during public testimony);

He wonders why the former bourgmestre of Musambira claims that the accused participated in the attacks on certain families and killed Tutsis in the evening of 19 April 1994 (this point was not raised during public testimony). That is pure informatory incrimination or accusatory defamation, based on hearsay without any possibility for the accused to defend himself;

He asks himself what the accused’s motives were in not warning the Préfet of “a widespread Interahamwe attack on a particular group of displaced persons or on a particular group of families” but merely reported a few acts of intimidation. That matter (alleged widespread attack on an unknown date) was not part of the testimony and is another malicious attack on the Accused, behind his back, without any possibility of answer or defence;

He wonders why the accused was not removed from office following the “highly applauded recommendation from Justin Mugenzi”, a Minister under Kambanda. In plain language, DAAX insinuates that the accused was not removed because he was collaborating with the Government. Once again, the letter insinuates responsibility, by collaboration, behind the back of the accused who can do nothing to respond to something never raised in the course of the public testimony;

Lastly, he wonders why the accused-appellant stayed with the Interahamwe and their leaders “until he fled with them as a group, although it was known that most of the more serious bourgmestres, not directly involved in acts of widespread genocide, has stayed in Rwanda so as to disassociate themselves, however belatedly, from that genocidal Government”. That opinion, negative and aggressive towards the accused is not found in the principal testimony; that was the stab in the back of the accused from a witness provided by the Prosecution and supposedly favourable to the Defence.

It is presumed that the letter, terribly damaging to the accused, was received and read by those to whom it was addressed: the judges, the Prosecution and Defence. Nothing in the Tribunal’s records points to the contrary. The Appellant received a copy and is privy to information that this important missive was well and truly read by those to whom it was addressed.

Witness DAAX returned to Kigali after testifying and was arrested on 1 May 1998; he was detained at the Gendarmerie in Remera, then transferred to the military detention unit of the Presidential Guard at Kimihurura in Kigali, then moved to another military detention unit at Mulindi and ultimately sent to the Kimironko prison a few months later (we can prove this).

The Appellant claims that it was impossible to have a fair trial under the circumstances:

It is impossible to challenge the DAAX type of testimony, despite the considerable and irreparable prejudice caused, particularly on account of its concealment, its new and unexpected accusations (unconnected with evidence in open court) and the insinuations, opinions and condemnations conveyed therein;

Private communication between a witness, particularly a Government sponsored witness, and the Chamber is inadmissible evidence in all properly constituted legal systems and violates the fundamental principle of mandatory public hearings in criminal matters;

In the instant, there was moreover a violation of the principle of:

Public trial proceedings, and

The right to a fair and open trial,

as set forth under Rules 78 and 80 of the Rules of Procedure and Evidence and upheld by Common Law.

Scott et al. v. Scott, [1913] A.C. 417, 463 (H.L)

McPherson v. McPherson, [1936] A. C. 177 (P.C.P)

Addis v. Crocker et al., [1960] 3 Weekly Law Reports 339, 345 and 346 (C. A. England)

The Appellant was denied his right to cross-examine the witness which is a “constitutional error of the first magnitude”, see Davis v. Alaska, ruling of the Supreme Court of the United States as cited in the United States vs. Baglev 473 U. S. 667, 105 S. Ct. 3375. 87 L. Ed 481 (1985), and there has been an offence against fundamental standards of a fair trial under any criminal law system : see, in particular, the opinion of Judge White in Duncan vs. Louisiana, 391 U. S. 145, 88 S. Ct. 1444, 20 L. Ed. 491 (1968).

Counsel for Defence were deficient and negligent and deprived the accused of his right to complete answer and defence and a fair trial. The devastating effect on the rights of the Appellant caused by the comments, insinuations and questioned voiced by DAAX, particularly in the private communication with the Judges, should have called for energetic and vigorous measures for protection and restoration of those rights. There was failure to take such measures and that negligence led to a “miscarriage of justice”, which could have been avoided by Counsel totally committed to the cause of the Accused.

As we will show, analysis of the principle legal systems indicates that an incompetent defence of the accused makes the trial unfair and results in a miscarriage of justice. We note that precedent on the issue of incompetence of Defence Counsel is scanty because accused have in general, been represented by Counsel of their choice with whom they maintain harmonious relations. As the Accused was deprived of that right and was not afforded the vigorous, effective and independent defence he had expected, defence incompetence provides serious grounds for retrial.

The Appellant submits that the verdict could have been a different one had he been more vigorously assisted to provide full answer and defence.

J.         Tenth Ground of Appeal : Unlawful detention

Proposed Ground of Appeal (Decision of 22 August 2000)

The Prosecutor detained the Appellant unlawfully on 22 November 1995, until his appearance on 30 May 1996. He was deprived of his right to know the cause for his detention. The Appellant himself and through his Counsel Johan Scheers complained about his unlawful detention.

K.        Eleventh Ground of Appeal : Appeal Against Sentencing Judgment

1.         First Ground of Appeal Against Sentence

  The Appellant was deprived of his fundamental right to defence by an attorney at the sentence hearing on 28 September 1998. He requested an attorney and was willfully deprived of this fundamental right by the Tribunal. The Tribunal lost all jurisdiction over the Appellant as result of its most unconscionable behaviour.

2.         Second Ground of Appeal Against Sentence

              On 2 October 1998, the Tribunal illegally deprived the Appellant of his right to address the Tribunal.  Its inconscionable actions once again confirm the loss of all jurisdiction and moral authority.

3.         Third Ground of Appeal Against Sentence

The sentence is unreasonable and unwarranted.