B. Second Ground of Appeal: Akayesu was denied the right to a competent attorney[103]
67. Akayesu alleges generally that he was not afforded assistance by a competent counsel. He submits that he was deprived of the possibility to defend himself and prays the Appeals Chamber to “remedy the serious miscarriage of justice by ordering a stay of proceedings or, in the alternative, a retrial.”[104]
1. Arguments of the parties
68. Akayesu contends that he was deprived of his right to a full and complete defence and of his right to a competent counsel. He submits that his Counsel Mr. Tiangaye, and his Co-counsel, Mr. Monthe were incompetent. Akayesu argues that the issue warrants consideration by the Appeals Chamber due to the direct link between the misconduct of his Counsel and the prejudice he suffered, to wit the miscarriage of justice committed by the Trial Chamber.
(a) Standards of review
69. Akayesu reiterates that gross misconduct by Counsel can occasion a miscarriage of justice and constitute a ground of appeal. On this point, he refers to the reasoning by ICTY Appeals Chamber in Tadic.[105] He asserts that the question of incompetence of Counsel, must be linked to the principle of equality of arms.[106]
70. Akayesu submits that the legal tests applicable for bringing an appeal based on incompetence of Counsel should be defined in light of ICTY Appeals Chamber case law and the principles generally applied in Common Law read together.[107] Akayesu submits that the approach adopted by some Anglo-Saxon national jurisdictions, which prefer “not to assess and evaluate [misconduct of Counsel] on a qualitative basis, but rather [consider] the effect of such misconduct on the fairness of the trial is relevant.”[108] It is the Appellant’s submision that the misconduct and negligence by his Counsel should also be considered in light of the effects on the fairness of the trial.[109]
71. Citing ICTY Appeals Chamber case law, in particular in the Tadic (additional evidence), the Prosecutor submits that the Appellant has the burden of proving, on the one hand, gross professional misconduct by his Counsel, and on the other hand, the existence of reasonable doubt as to a possible miscarriage of justice.[110] In the Prosecution’s submission the reference to the approach adopted by Anglo-Saxon national jurisdictions, which in its arguement apply “a different test”[111] shows the Appellant’s willingness to disregard the first part of the test established by ICTY Appeals Chamber. Yet, Akayesu has failed to show that their exists in the instant case “cogent reasons […] requiring a departure from a previous decision.”[112] Therefore, the Prosecutor argues that the tests applicable in the instant are those laid down by ICTY Appeals Chamber.
(b) Evidence of incompetence of Counsel
72. On 22 August 2000, the Appeals Chamber rejected an affidavit by Akayesu on the incompetence of his counsel. Notwithstanding the rejection of said document, Akayesu claims that he can prove that his rights were violated by relying on two letters from him to the President of the Tribunal dated 9 January 1997 and 18 September 1998 respectively.[113]
73. Akayesu alleges:
(1) Counsel’s lack of preparation[114] (failure to study the indictment, lack of a strategy, failure to retain investigators, etc.[115]) as well as other alleged errors[116] tend to raise doubts as to the existence of injustice. Akayesu contends that :
“ […] a trial of such importance, which is ill prepared, starts without Defence witnesses, without investigators, without a Defence strategy, can only amount to a travesty of justice or a fictitious exercise in which the Appellant, almost powerless, is invited to watch the procession of Prosecution witnesses.”[117]
(2) Failure to raise violations of fundamental rights that his Counsel[118] failed to raise the question of his detention was a “relevant and serious issue.”[119] Akayesu submits that he was “deprived of a ground that could be relied upon for a stay of the proceedings”, and, consequently, failure by Counsel to raise that issue occasioned injustice.[120]
(3) Failure to work with the Appellant and to give him adequate advice.[121]
(4) Failure to work together stemming from an uncoordinated rotational work system.[122] Akayesu submits that such a system “is, ipso facto, prejudicial to the rights of the accused, who, under it, does not have two counsel, but one counsel on duty alternating with the other, both of whom come from two different countries, do not receive transcripts of hearings in which they are absent and, therefore, are unaware of the proceedings. This system is worse than one in which the accused is entitled to only one counsel who, at least, will keep track of the various stages and proceedings of the trial.”[123] Akayesu argues that such an arrangement “proved” ineffective during the examination of General Dallaire.[124]
(5) Lateness and failure of Counsel to appear in court.[125] By their repeated lateness and absences, Counsel engendered “a feeling of injustice”[126] and undermined the fundamental principle of “unity between client and counsel”, yet upheld by ICTY Appeals Chamber.[127]
(6) Failure to prepare the Appellant’s testimony with him and to rebut the Prosecutor’s submissions.[128] Akayesu submits that the Trial Judgment contains references to certain allegations or charges respecting which he did not testify.[129] Akayesu contends that the failure to prepare his testimony is a fundamental error on the part of his Counsel, particularly in light of the very prejudicial lack of defence witnesses.[130]
(7) Failure to follow the Appellant’s instructions and to provide him with quality defence.[131] Akayesu submits that “appropriate and often pertinent questions were never put to the Prosecutor’s witnesses in spite of his suggestion and appeals to Counsel to do so”.[132]
(8) Failure to inform the Appellant of their management of the case.[133] Akayesu contends that he was kept “in the dark concerning the management and organization of his case and that he was unaware of the objectives and strategy pursued by Counsel, or their line and grounds of defence, the stakes involved in the trial, the state of the law or the rationale behind their actions.”[134] Akayesu adds that his Counsel “participated, unbeknownst to him, in the status conference of 29 November 1996, in the hearing of 23 January 1997 and in the status conference of 6 February 1998.”[135]
(9) Failure to raise timely objections.[136]
(10) Failure to locate defence witnesses (to procure their statements and to call them to testify). Akayesu blames his Counsel for not requesting that one or more investigators be appointed to assist them in their investigations.”[137] Thus, Akayesu intends to prove “negligence and carelessness” on the part of his Counsel and to show that there was no opportunity for him to make his case.[138]
(11) Refusal of witnesses or failing to contact them through carelessness or negligence.[139]
74. The Prosecutor submits that the arguments raised by Akayesu are not admissible for several reasons which can be summarized as follows:
(1) The Prosecution submits, firstly, that most of Akayesu’s arguments are not supported by any evidence.[140] The two letters on which Akayesu relied (following the rejection of his affidavit by the Appeals Chamber) are neither relevant, nor admissible. The letter dated 9 January 1997 only shows that Akayesu did not complain about the attitude of his Counsel during the trial while the letter of 18 September 1998 was admitted merely as additional evidence in support of the ground of appeal relating to choice of counsel (second ground of appeal), and not in support of the ground of appeal relating to his competence (third ground of appeal).[141] Moreover, in the Prosecution’s submission a single letter written by the Appellant cannot have probative value.[142]
(2) The Prosecutor further submits that some of Akayesu’s arguments (based on evidence other than the two letters referred to above) rely on a broad interpretation of the Trial Judgment or transcripts of hearings;
(3) Lastly, the Prosecutor submits that the arguments set forth in support of the evidence are devoid of any relevance.
75. Consequently, it is the Prosecutor’s submission that Akayesu has failed to prove any negligence on the part of his Counsel and to show that it is reasonable to doubt that the Trial Chamber committed a miscarriage of justice.[143] The Prosecutor concedes that Akayesu did not benefit from a good defence strategy, and agrees that the lateness and absences were indicative of a negligent attitude on the part of his Counsel.[144] However, said situation does not necessarily imply that he suffered injustice.[145] On the contrary, it is the Prosecutor’s submission that the Presiding Judge of the Trial Chamber exercised efficient control over the trial proceedings, particularly by coming to his assistance during his examination of witnesses.[146]
2. Discussion
76. The Appeals Chamber recalls that indigent accused have the right to competent assigned counsel. The Appeals Chamber reiterates, in this connection, its findings in Kambanda that: the effectiveness of representation by assigned counsel must be assured in accordance with the principles relating to the right to a defence, in particular the principle of equality of arms.[147] It recalls that the right to competent counsel is guaranteed under the International Covenant on Civil and Political Rights (Article 14),[148] the European Convention on Human Rights (Article 6)[149] and the American Convention on Human Rights (Article 8).
77. With respect to the applicable tests for assessing counsel’s ineptitude, the Appeals Chamber endorses the tests applied by ICTY Appeals Chamber in the Tadic Decision.[150] In this regard, ICTY Appeals Chamber held that an Appellant alleging incompetence of counsel must show the “gross incompetence” of the latter. The Appellant may do so by “demonstrate [ing] that there was reasonable doubt as to whether a miscarriage of justice resulted”.[151] Indeed,
“(..) when evidence was not called because of the advice of the defence counsel in charge at the time, it cannot be right for the Appeals Chamber to admit additional evidence in such a case, even if it were to disagree with the advice given by counsel. The unity of identity between client and counsel is indispensable to the workings of the International Criminal Tribunal. If counsel acted despite the wishes of the Appellant, in the absence of protest at the time, and barring special circumstances which do not appear, the latter must be taken to have acquiesced, (…)”.[152]
78. In other words, the Statute of the Tribunal affords an indigent accused the right to be represented by a competent counsel. The latter is presumed to be competent and such a presumption of competence can only be rebutted by evidence to the contrary. In most cases, the accused would have to show prejudice as set out in the above-mentioned Tadic Decision and should such prejudice be proven, the Appeals Chamber would have to acknowledge that the right of the Accused as guaranteed under the Statute had been violated. However, even if such prejudice is not proven the question remains, as to whether the proven incompetence constitutes a violation of the statutory right of the accused to assistance by competent counsel and would consequently warrant a remedy.
79. In the case at bench, did Akayesu show the incompetence of his Counsel? The Appeals Chamber has considered all the evidence adduced by Akayesu in support of his arguments. It has taken into consideration not only the submissions relating to the instant ground of appeal, but also those made in connection with other grounds of appeal. Indeed, as stated above by the Appeals Chamber, Akayesu views this ground of appeal as a material irregularity warranting a stay of proceedings, which explains why incompetence of counsel is raised not only under this ground of appeal but also with respect to several other grounds of appeal, such as in the third submission under the fourth ground as well as under the sixth, eighth and ninth grounds of appeal.
80. The Appeals Chamber finds that Akayesu has failed to prove incompetence of his Counsel (as understood by the Tribunal): he failed to provide any tangible example of gross professional misconduct by his Counsel such as resulted in a miscarriage of justice.
81. Firstly, the letters of 9 January 1997 and 18 September 1998[153] by Akayesu to the President do not constitute sufficient evidence. Indeed, the Appeals Chamber cannot accept Akayesu’s own allegations at trial as evidence of incompetence of his Counsel. The two aforementioned letters have probative value only to the extent that they confirm Akayesu’s insistence on having his assigned counsel withdrawn. Thus, assuming that the aforementioned letters suffice to prove incompetence of his Counsel, they cannot constitute sufficient and adequate proof since they emanate from the Appellant himself.
82. Secondly, Akayesu cites extracts from the Trial Judgment, including paragraphs 30, 254, 257, 307 and 406 as indicia of his Counsels’ incompetence. The Appeals Chamber cannot accept such an allegation. The aforementioned paragraphs in no way show gross misconduct on the part of Akayesu’s Counsel. Indeed, absence of a defence strategy may not be inferred from paragraph 30 of the Trial Judgment.[154] With respect to the remaining paragraphs, the Appeals Chamber does not find that they show “monumental failures on the part of Counsel”, to wit, failing to cause their client to testify on charges of murder (paras. 254, 267 and 307) or threats (para. 406) where the accused had a defence.”[155] Such extracts from the Trial Judgment only define the scope and limitations of Akayesu’s testimony. That the Accused did not respond to certain allegations does not constitute evidence of incompetence of his Counsel.
83. Lastly, with respect to the transcript extracts cited by Akayesu,[156] the Appeals Chamber finds that they clearly do not offer evidence of gross misconduct.[157] Furthermore, it should be noted, that Akayesu failed to quote some extracts in their proper context and that sometimes the transcripts submitted to the Appeal Chamber offer contradictory information. For example, while the absence of Akayesu’s Counsel from Court at the start of the 19 March 1998 hearing has been established, and while it was categorically condemned by the President of the Tribunal, it would also appear that, as stated by the President of the Tribunal that “since the beginning” of the trial, Akayesu’s Counsel had “ shown a sense of cooperation.”[158] With respect to the conduct of Counsel during trial, for example, their alleged failure to prepare adequately for effective examination and cross-examination, or to object to the admission of hearsay evidence, the Appeals Chamber finds that there is no evidence that the possible omissions by the Defence were not part of a strategy agreed on beforehand with Counsel. Similarly, where Akayesu asserts that Counsel failed to raise certain matters because of incompetence,[159] there is no reason to conclude that Counsel did not strategically choose to do so with the agreement of the Accused. Consequently, Counsel’s failure to raise any issues or to raise objections[160] is not proof of incompetence. The Appeals Chamber further finds that, in any case, it was not incumbent upon the Trial Chamber to make up for Counsel’s failure to react which is a priori deliberate. The Trial Chamber may intervene only where it observes offensive or prejudicial conduct.[161]
84. For all the foregoing reasons, the Appeals Chamber rejects the grounds of appeal relating to incompetence of Counsel.
[103] The breakdown of the grounds of appeal grouped together under this general ground is to be found in annex B. In the second Notice of Appeal, Akayesu alleges primarily that: “The Accused was denied his right to a full and complete defence because he was deprived of his right to a competent Counsel. The trial was therefore totally vitiated by this violation causing a complete denial of justice for the accused.” He presents a non-exhaustive list of several errors committed as follows: (he submits that the errors include […])” In his Appellant’s Brief, Akayesu makes “complaints” against his Counsel, presenting the “gist” of those complaints (Appellant’s Brief, Chapter III, para. 8). Consequently, the Appeals Chamber considered the grounds of appeal set out in the Appellant’s Brief in a global and comprehensive manner. However, the Appeals Chamber notes that certain grounds of appeal which initially figured in the first or second Notice of Appeal were not included by Akayesu either in his Brief or in his Brief in Reply. In particular, “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” (first Notice of Appeal ); “In its haste to end the trial, the court prevented the Appellant from exercising his right to a complete and unfettered defence by refusing illegally to hear the testimony of fourteen important defence witnesses. ” (second Notice of Appeal , part 4, para. 4).
[104] Akayesu’s Brief, Chapter 3, para. 48. See also Chapter 15, para. 1.
[105] Indeed ICTY Appeals Chamber held that: “The unity of identity between client and counsel is indispensable to the workings of the International Tribunal. If counsel acted despite the wishes of the Appellant, in the absence of protest at the time, and bearing special circumstances which do not appear, the latter must be taken to have acquiesced even if he did so reluctantly. An exception applies where there is some lurking doubt that injustice may have been caused to the accused by gross incompetence.” “Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence.” The Prosecutor v. Dusko Tadic, Appeals Chamber, 15 October 1998, para. 65.
[106] Citing once again ICTY Appeals Chamber case law which, itself, refers to case law by the European Court of Human Rights (ECHR), Akayesu argues that the concept of “equality of arms” implies that “each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent” Tadic Judgment on Appeal, para. 48.
[107] Akayesu’s Brief, Chapter 3, paras. 39 to 48.
[108] Ibid, para. 43.
[109] Akayesu’s Reply, para. 38.
[110] Tadic Decision (additional evidence), para. 49.
[111] Prosecution’s Response, para. 4.10.
[112] Aleksovski Judgment on Appeal, para. 108.
[113] Akayesu’s Reply, para. 40.
[114] He cites in support of this allegation the letter of 9 January 1997.
[115] Akayesu insists on “the failure by Counsel to retain investigators under the pretext of confidentiality and on the consequences of such failure: inability to produce reliable witnesses for the defence or to make the most of the witnesses called. He blames his Counsel for failing to search for defence witnesses between January and February 1997 and to call a sufficient number of suitable witnesses.” Akayesu’s Brief, Chapter 3, para 11.
[116] In his Reply, Akayesu submits that “The lack of preparation and the fact that there were no depositions, witness statements on some of the acts, with which the accused was charged, certain counts and also the fact that the Counsel did not consult with each other, neither of them knew what the other was doing. They came late. They did not come back. They did not follow his instructions. Because Akayesu knew some of the witnesses, he knew why they were lying. He knew how to cross-examine them, but the Counsel did not follow his instructions. Transcript of the hearing of 1 and 2 November 2000, p. 74. Akayesu quotes a statement made by Mr. Muna to the effect that “[…] certain people lose their trial because of a mediocre lawyer, possibly poor Akayesu lost his trial because the lawyer didn’t have the liveliness of spirit required to cross-examine experts and witnesses.” Transcript of the hearings of 1 and 2 November 2000, p. 45.
[117] Akayesu’s Reply, para. 43.
[118] On this point, Akayesu makes a distinction between initiatives taken by Mr. Scheers and those taken by his two assigned Counsel. He indeed submits that “Mr. Scheers, Counsel for the Appellant, had raised the issue of unlawful arrest in his motion of 30 May 1996 and at the hearing of 26 September 1996 as can be found in the trial record. The Prosecutor responded in writing to the submission of the Appellant. The issue of unlawfulness was therefore addressed at that time, though not fully examined. It is the Appellant’s submission that counsel imposed on him should have examined the issue and followed it up.” Ibid, paras. 44 and 45.
[119] Ibid, para. 46.
[120] Ibid, para. 46.
[121] Akayesu’s Brief, Chapter 3. Para. 15. Akayesu submits that the letters of 9 January 1997 and 18 September 1998 contain specific assertions in this regard. See Akayesu’s Brief in Reply, para. 48.
[122] Akayesu submits that the letter of 18 September 1998 supports certain allegations. See Akayesu’s Reply, para. 52.
[123] Akayesu’s Reply, para. 49. In general, see Akayesu’s Brief , Chapter 3, paras. 16 to 20. Akayesu argues that the system put in place by his Counsel was “adopted without his knowledge, was against his wishes since both counsel were expected to work together to discuss and coordinate their actions. The system resulted in absences of counsel and several adjournments of hearing. ” He cites in support of this argument several incidents which occurred during hearings and which testify to the lack of coordination between the Counsel as well as their repeated absences (paras. 17 to 18).
[124] Akayesu’s Brief, Chapter 3, para. 20.
[125] Akayesu’s Brief, Chapter 3, para. 2. 21 to 24. Akayesu takes the example of the absence of his counsel from the hearing of 10 March 1997 held to hear the arguments of the parties on the Defence motion filed on 29 January 1997. He explains that “(…) the hearing of this motion which could not take place on 10 March 1997 due to the absence of counsel imposed on the Appellant, only took place one year later, on 6 March 1998.” Akayesu’s Reply, para. 54.
[126] Akayesu’s Reply, para 55.
[127] Akayesu echoes the words of ICTY Appeals Chamber to the effect that: “The unity of identity between client and counsel is indispensable to the workings of the International Tribunal”, “Decision on the Appellant’s Motion for the Extension of the Time-Limit and Extension of Additional Evidence”, Prosecutor v. Dusko Tadic, Appeals Chamber, 15 October 1998, para. 65, Akayesu’s Reply, para. 58.
[128] Akayesu’s Brief, Chap. 3, paras. 25 to 27. Akayesu submits that the letter of 18 September 1998 proves this allegation.
[129] Akayesu cites paras. 254 and 267, 307 and 406 of the Trial Judgment. He submit: that “Such are monumental failures on the part of counsel: failing to cause their client to testify on charges of murder (paras. 254, 267 and 307) or threats (para. 406) where the accused has a defence.” Akayesu’s Reply , para. 63.
[130] Ibid, para 64. Akayesu’s Çounsel declared during the appeal hearings, “Someone will probably (sic) read Akayesu’s testimony [….] about 180 pp., is a monologue. A monologue is not the way to testify […] Akayesu testified on some of the events. He did not testify on the murder of the Brothers of Karangwa. He did not testify on the assaults and threats against Witness K. The murders of the Brothers of Karangwa are central and the very weak testimony of Akayesu in the sense […] he did not reply to the charges against him.” Transcript of the hearings of 1 and 2 November 2000, p.47. See also p. 48 of the English version.
[131] Akayesu’s Brief, Chapter 3, paras. 28 and 29. Akayesu submits that the factual basis of his allegations appear in the letter of 18 September 1998.
[132] Ibid, Chapter 3, para. 29. In general, Akayesu would have liked to ask the witnesses questions which were not asked by his Counsel. However, he contends on this point that “Asking the Appellant to show that success to obtain other evidence or discrediting the particular witnesses could have affected the outcome of the case is tantamount to asking the impossible.” Akayesu’s Reply, para 59.
[133] Ibid, Chapter 3, para. 30. He cites the letter of 18 September 1998 in support of this argument.
[134] Ibid, Chapter 3, para. 30.
[135] Akayesu’s Reply, para. 67.
[136] Ibid, Chap. 3, para. 31. In his Brief, Akayesu recalls situations or proceedings to which his Counsel should have objected : “(1) The Prosecution fails to produce its witnesses’ statements ; (2) The Prosecution consistently asks his witnesses leading questions; (3) The Chamber prohibits the Defence from asking leading questions during cross-examination; (4) Counsel fail to point the partiality of Mrs. Desforges , called as an expert ; (5) The experts give testimonies outside of their areas of expertise; (6) The Judges make inappropriate judicial statements; (7)The Judges receive private testimonies unbeknownst to the Appellant; (8) The Prosecutor’s representative in charge of the case finds himself in a conflict of interest. He considers that such a failure is reflected in the trial record. Akayesu’s Reply, para. 70.
[137] Ibid, Chapter 3, para. 32 to 34. Akayesu submits that the letter of 18 September 1998 “provides information on the list of defence witnesses transmitted by the Appellant to his Counsel ”, that Counsel did not pursue. See Akayesu’s Reply, para. 72.
[138] Akayesu’s Reply, para. 74.
[139] Akayesu’s Brief, Chapter 3, paras. 35 and 36.
[140] Transcript of the hearings of 1 and 2 November 2000, pp.124, 143 and 148.
[141] Transcript of the hearings of 1 and 2 November 2000, p. 142.
[142] Transcript of the hearing of 1 November 2000, p. 143.
[143] Prosecution’s Response, para. 4.65.
[144] Transcript of the hearings of 1 November 2000, pp. 146.
[145] Ibid, pp. 126 and 127.
[146] Ibid, p. 184.
[147] Kambanda Judgment on appeal, para. 34, including footnote 49.
[148] The Human Rights Committee has been seized of several cases in which the client argues incompetence of counsel resulting in unfair trial under Article 14.3(d) of the International Covenant on Civil and Political Rights. In the matter, Hezekiah Price v. Jamaica, in which the complainant alleges unfair trial due to the incompetence of his counsel (“legal aid lawyers”), the Committee held that it was not up to it to assess the performance of the counsel and that the national jurisdiction should not only ascertain whether the counsel has consequently consulted with and informed the accused but also whether counsel’s conduct is in conformity with the interests of justice. Cf. Hezekiah Price v. Jamaica, Communication No. 572/594 of the Human Rights Committee of 20 November 1996, CCPR/C/58/D/572/1994. The Committee found that the accused did not enjoy effective representation during the appeal and that there was a violation of Article 14 of the International Covenant on Civil and Political Rights. See also O. Brown and B. Parish v. Jamaica, Communication No. 665/1995 of the Human Rights Committee, 5 August 1999, CCPR/C/66/D/665/1995.
[149] The European Commission for Human Rights endeavours to determine whether lack of diligence on the part of an accused’s counsel could entail the responsibility of the State. To that end, it verifies whether national jurisdictions have effectively provided the Accused with adequate legal assistance. Cf. Koplinger v. Austria, European Commission for Human Rights, Decision 1850/63 (dismissal of motion). “The Commission recalls that, in accordance with its established precedents, the courts have a duty to provide the accused with adequate legal assistance (emphasis added). In the case “F. v. Switzerland, the Commission stated: “[…] it is up to the authorities responsible for providing free legal assistance and assigning defence counsel to make sure that counsel can defend the accused effectively” (F. v. Switzerland, European Commission for Human Rights, Decision of 9 May 1989, Motion No. 12152/86.
[150] Tadic Decision (additional evidence) paras. 46 to 50.
[151] Tadic Decision (additional evidence), para. 49.
[152] Tadic Decision (additional evidence) para. 65 (footnote omitted).
[153] The letter of 18 September was admitted into the record by the Appeals Chamber in its Decision of 17 April 2000. The Prosecutor submits that the said letter was not admitted as additional evidence in support of the first ground of appeal (Akayesu was deprived of the right to counsel of his choice . See Akayesu’s Reply on this point , Transcript of 1 November 2000, pp. 229 and 230. The Appeals Chamber rejects that argument. The Decision of 17 April 2000 is clear : The Appeals Chamber directed the Registry to provide copies of the letter to the parties and to include it in the record on appeal .As an exhibit in the appeal case, it can be relied on for all grounds.
[154] Akayesu submits that the Trial Chamber’s finding that “In essence, (…) insofar as the Chamber has been able to establish it – the Accused did not commit, order or participate in any killings, beatings or acts of sexual violence alleged in the Indictment” shows that the Trial Chamber “had difficulty in understanding where the defence was heading to” and suggests that the Defence had no strategy. See Akayesu’s Reply, para. 41.
[155] Akayesu’s Reply, para. 63.
[156] Akayesu cites inter alia the hearings of 16 January 1997, 27 January 1997, 28 October 1997, 31 October 1997, 9 February 1998, 25 February 1998, 12 March 1998 and 19 March 1998.
[157] For example the lateness (repeated) apparently due to transport (Transcript, 25 February 1998, p. 4) or mere misunderstanding between Counsel and their client (Transcript, 31 October 1997, pp. 140 and 141), in the opinion of the Chamber, do not offer sufficient proof.
[158] The President of the Tribunal in fact noted: “l think you are right. Since the beginning you have shown a sense of cooperation. We are aware of this and that is why the judges are rather surprised that at the end of this trial, at a moment as crucial as this one, we witness this kind of situation, the situation we saw this morning, which was considered by the judges as a serious contempt, and the judges felt that this morning you should have come at 9.30 to explain to them your difficulties and, if possible, ask for adjournment of the case or the trial. I think this point had to be raised.” Transcript, 19 March 1998, pp. 101 and 102.
[159] For example, the issue of unlawful detention. See tenth Ground of Appeal.
[160] For example, Akayesu submits that the Trial Chamber did not allow the parties to raise objections and that in any case, no objection was raised. On that point, he criticizes altogether his Counsel, the Tribunal and the Prosecutor. See sixth Ground of Appeal.
[161] The Appeals Chamber notes that the Trial Chamber reasonably exercised its control provided for under the legal instruments by issuing a warning to the two defence counsel. Having failed to appear in court for the hearing of 19 March 1998, the Trial Chamber did, indeed, pursuant to Rule 46(A) of the Rules warn the counsel by threatening them with sanctions and specifying that: “the conduct of the two counsel in the instant case [..] is not only outrageous and disrespectful, but also constitutes a hindrance to the proceedings and runs counter to the interests of justice.” See “Avertissement aux conseils de la Défense ”, The Prosecutor v. Jean-Paul Akayesu, 19 March 1998, p. 2