Untitled Document

351. By motion dated 2 June 2000 Akayesu sought leave, inter alia, to amend his Notice of Appeal to include a ground of appeal challenging the legality of his detention.[633] In its Decision of 22 August 2000, the Appeals Chamber found that “the lawfulness of [Akayesu’s] detention in Zambia was not raised before the Trial Chamber” and that as a result, there was “cause to reject [Akayesu’s] request…to amend the Notice of Appeal.”[634]

352. On 20 October 2000, Akayesu filed a motion requesting the Appeals Chamber to rectify its decision dated 22 August 2000, on the ground that issues relating to the lawfulness of his detention and the failure to inform him promptly of the charges brought against him had been raised before the Trial Chamber albeit in the pre-trial phase, within the framework of the motion for termination of proceedings.[635] Having received the Prosecution’s response to the Motion to rectify,[636] and Akayesu’s Reply,[637] the Appeals Chamber rendered an oral decision on 1 November 2000 at the start of the Hearing on Appeal in which it resolved: “to join to the appeals on the merits [and to allow the Appellant to submit] thereon for some minutes, [you will be authorized], but, at that point in time, the Prosecution will have to respond.”[638]

353. During the Hearing on Appeal, the Prosecution stated that it wished to file certain documents to support its proposed response to the ground of appeal. Akayesu did not object and the Appeals Chamber accordingly granted the Prosecution leave to file the said documents.[639]

354. Akayesu submits that this ground of appeal is two fold. He alleges that there was a violation of his right: (1) to be charged promptly, and (2) to be informed promptly of the nature of the charges against him.[640] However, ultimately he appears to be submitting that he had been detained unlawfully in violation of Rule 40 of the Rules on provisional measures.[641] As a result, he submits as follows:

355. The Prosecution submitted on this ground only during the Hearing on Appeal on 1 and 2 November 2000 and in its Response to the Motion to Rectify.[643]

356. Before proceeding to consider this ground of appeal on the merits, the Appeals Chamber must first determine whether it is properly before it.

357. Akayesu has submitted that both issues raised in this ground of appeal had been raised before the Trial Chamber.[644] That explains why he requested the Appeals Chamber to rectify its earlier decision denying him leave to add this ground of appeal and to consider the issue on the merits.

358. The Prosecution for its part submits that Akayesu has waived his right to raise on appeal the issue of the propriety of the request filed by the Prosecution under Rule 40 of the Rules, since it was never raised during proceedings before the Trial Chamber.[645] While conceding that Akayesu has filed a pre-trial motion raising several issues concerning his detention in general, the Prosecution however submits that the only issue relating to his arrest and detention concerned the lawfulness of his arrest by the Zambian authorities following a request by Rwanda, and his detention conditions.[646] The Prosecution alleges that Akayesu made no mention of the steps taken by the Prosecution to have him arrested or the request it filed under Rule 40.[647] The Prosecution submits that Akayesu never raised the issue again either through the so-called counsel of his choice or any other counsel, and that Akayesu can point to no place in the record where he raised the issue of the legality of the Prosecution’s request for his arrest in Zambia.[648] It is the Prosecution’s submission that the […][649] that Akayesu has, as a result, waived his right to raise this issue now on appeal.[650]

359. The Appeals Chamber observes firstly that as to whether this issue was raised before the Trial Chamber, Akayesu appears to have put forward, during the appeal proceedings, rather contradictory and selective submissions. Although he alleges in certain submissions that the issue of the lawfulness of his detention had been raised at trial,[651] he takes issue with his Counsel, in his second Ground of Appeal, based on incompetence of counsel for failing to follow his instructions and to raise issues relating to the lawfulness of his arrest, detention and imprisonment.[652] Subsequently, in response to the Prosecution’s criticism that he failed to prove that he had instructed to his Counsel to raise the issue of his unlawful detention in Zambia,[653] Akayesu asserted that Mr. Scheers, his Counsel at the time, did raise the issue of his unlawful detention, that the issue of unlawfulness was therefore addressed at that time, though not fully examined.[654] Akayesu blames the Counsel subsequently assigned to his defence for failing to examine and follow up the issue. He submits:

360. In sum, Akayesu attempts to rely on this alleged failure to sustain his second Ground of Appeal, while alleging the opposite in support of the present ground. However, although this contradiction is not sufficient to justify the Appeals Chamber refusing to consider the issue, the Appeals Chamber notes the selective manner in which Akayesu presented the issue. Consequently, for the reasons stated below, the Appeals Chamber must first determine whether this issue was raised before the Trial Chamber.

361. It is well established by now that proceedings before the Appeals Chamber do not constitute a trial de novo.[656] On the contrary, a party is under an obligation to formally raise with the Trial Chamber (either during the trial or pre-trial,[657]) any issues that require resolution. A party “cannot remain silent on [a] matter only to return on appeal to seek a trial de novo.”[658] If a party raises no objection to a particular issue before the Trial Chamber (though all things considered it could reasonably have done so), in the absence of special circumstances the Appeals Chamber will find that the party “has waived his right to adduce the issue as a valid ground of appeal.”[659]

362. During the Hearing on Appeal Akayesu submitted that the Prosecution’s arguments as to waiver should be rejected, as the Appeals Chamber had already decided to grant the Motion to Rectify and “to allow [him] to plead on the merits with respect to the amended Notice of Appeal.”[660] This is not the case. In the light of the Motion to Rectify which had been filed, particularly, at such a late stage, the Appeals Chamber permitted the parties to submit during the Hearing on Appeal both on the Motion to Rectify itself and on the merits of the proposed ground of appeal. At no point did the Appeals Chamber find that Akayesu had satisfied it that the issues raised in this ground of appeal had been properly brought before the Trial Chamber, such that the Appeals Chamber had erred in its Decision of 22 August 2000. This preliminary issue remained to be resolved before the Appeals Chamber could consider the merits of the arguments put forward. In other words, did Akayesu, as he asserts, raise these issues before the Trial Chamber such that he did not waive the right to raise them on appeal?[661]

363. The Appeals Chamber will address this preliminary issue by considering successively the two limbs of this ground of appeal as put forward by Akayesu, to wit, violation of the right to be charged promptly and violation of the right to be informed of the nature of the charges.

364. The Appeals Chamber finds that Akayesu’s submissions are misplaced in this respect.

365. Akayesu relies on a preliminary motion filed on 27 May 1996 (“the Preliminary Motion”)[662] and the subsequent hearings held before the Trial Chamber on 26 and 27 September 1996 as evidence that this issue was raised before the Trial Chamber.[663] It is not in dispute that Akayesu filed the Preliminary Motion, but contrary to his assertions, the Appeals Chamber finds no evidence to suggest that the particular issue raised in this ground of appeal was brought before the Trial Chamber. Akayesu’s submissions in this proposed ground of appeal,[664] revolve around the allegation that the provisions of Rule 40 of the Rules, as worded at the time, were violated by his detention in Zambia at the behest of the Prosecution from 22 November 1995 (when the Prosecution requested the Zambian authorities to detain Akayesu (and others) provisionally under Rule 40 of the Rules), until confirmation of the Indictment on 16 February 1996, and his initial appearance on 30 May 1996.[665] Akayesu submits that a correct interpretation of this Rule meant that the Tribunal could only legally detain him for 20 days.[666] Therefore, after 9 December 1995, his detention was illegal.[667]

366. The Appeals Chamber finds that although Akayesu did raise certain issues concerning his arrest and detention as part of the Preliminary Motion, at no time did he raise concern regarding his detention at the behest of the Prosecution and at no time did he allege that the Prosecution had violated Rule 40 of the Rules, as he argues now in his Brief.[668]

367. The Preliminary Motion was argued on 26 September 1996.[669] Here again, in the transcripts of the hearing, the Appeals Chamber finds no evidence of the fact that this particular issue was raised.[670] The Preliminary Motion was rejected in an oral decision rendered by the Trial Chamber the following day, 27 September 1996. It is important to recall here the intent of the Trial Chamber’s Decision:

368. In both filings seeking rectification of the Decision of 22 August 2000 (Motion to Rectify and Response to the Motion to Rectify) and during the Hearing on Appeal, Akayesu attempted to convince the Appeals Chamber that this matter had been raised before the Trial Chamber. Akayesu, in particular, sought to persuade the Appeals Chamber that arguments put forward in this ground of appeal had been raised in the Preliminary Motion. He submited that although it may not have been clear, the information was indeed before the Trial Chamber and it reached its decision based on it.[672]

369. The Appeals Chamber finds that the Preliminary Motion did not address the first issue raised in this ground of appeal, that is, the lawfulness of Akayesu’s detention based on the interpretation of Rule 40 of the Rules in force at the time and the allegation that his detention exceeded the alleged statutory twenty-day limit. On the contrary, the Preliminary Motion raised more general complaints regarding his conditions of detention and the circumstances of his arrest.[673] Similarly, during the hearing on the Preliminary Motion, on 26 September 1996, Counsel for Akayesu did not raise this point as one of the issues in contention.[674] During the Hearing on Appeal, the Appeals Chamber specifically asked Counsel for Akayesu to direct it to the relevant part of the Record on Appeal which supported his submission that the matter had been raised before the Trial Chamber.[675] In particular, the Chamber asked him: “[I]s there anything in the citations which you have used which shows that Mr. Scheers presented to the Trial Chamber an argument to the effect that the provisional detention in Zambia exceeded the temporal limit specified in Rule 40?”[676] Counsel for Akayesu eventually conceded that there was not.[677]

370. The Appeals Chamber finds that Akayesu did not raise this matter before the Trial Chamber. In addition, Akayesu wrongly asserted in the Motion to Rectify that he had raised the matter. As a result, the Appeals Chamber finds that he has waived his right to raise it now on appeal.

(b) Violation of the right to be informed of the nature of the charges against him

371. Akayesu alleges that this issue was also properly raised before the Trial Chamber and that, therefore, he has not waived his right to raise it now on appeal.

372. Akayesu submits that his right to be promptly informed of the nature of the charges against him was violated. He submits that it was not until 29 March 1996, or six weeks after the indictment had been confirmed that he was informed of the cause for his arrest and of the charges against him, even though he had learned on three occasions that his detention was linked to events in Rwanda. Thus, his right to be promptly informed was violated.[678] Akayesu submits that he was only transferred to the Tribunal three and a half months after confirmation of the Indictment, in violation of Article 19 of the Statute.[679] In addition, he contends that he made his initial appearance six months after the Prosecution filed its motion under Rule 40 of the Rules and three and a half months after he had been arrested and charged in accordance with the relevant provisions of the Statute and Rules.[680] Akayesu submits that whether he is considered as a suspect (detained since 22 November 1995) or as an accused (detained from 16 February 1996) he was informed only on 29 March 1996 of the legal and factual bases of his detention and the charges against him. Consequently, his right to be promptly informed was violated.[681]

373. The Prosecution submits that Akayesu was clearly aware of at least the nature of the charges against him. It recalls that Akayesu has himself conceded that he was informed “if not on the precise charges against him, then at least of the nature of the charges.”[682]

374. Here again the Appeals Chamber finds that this issue was not raised before the Trial Chamber. In his Preliminary Motion, Akayesu had alleged that he had been detained as a result of a request by the Rwandan authorities and that “at no time [was he]…notified of the reasons for his arrest; it was rather during his interrogation on 10 and 11 April 1996 at the Lusaka Prison that [he]…was informed of the charges against him.”[683] During the hearing on 26 September 1996, Akayesu reiterated this allegation and submitted that it was after seven months “that he knew or at least his counsel knew what the charges were that were brought against him”[684] In addition, Akayesu submits that he was served with the Indictment only on 30 May 1996.[685]

375. The Appeals Chamber finds no evidence that the specific facts and arguments cited in this limb of the ground of appeal were, as asserted by Akayesu, raised before the Trial Chamber. The submissions made at the time did not allege any error on the part of the Prosecution such as is being raised now before the Appeals Chamber. Rather, Akayesu confined himself to a general allegation that he had not been informed of the cause for his arrest, presumably as a result inter alia of an error by the authorities of Zambia. No clarification was provided thereon during the hearing of 26 September 1996. As a result, the Appeals Chamber finds that in this case too Akayesu has waived his right to raise this issue on appeal.

376. Akayesu was convicted and sentenced by the Trial Chamber on 2 September 1998 and 2 October 1998 respectively. Neither in the first Notice of Appeal filed by Akayesu himself nor in the second Notice of Appeal filed by Akayesu’s Counsel was the question of the lawfulness of detention raised in the terms stated above. Although Akayesu filed several requests for leave to amend his Notice of Appeal during the course of 1999,[686] only on 7 December 1999 did Akayesu seek leave to amend his Notice of Appeal to add a ground of appeal challenging the legality of his detention.[687] Such a request may have been prompted by the Appeals Chamber’s 3 November 1999 Decision in the matter of Jean-Bosco Barayagwiza.[688] Akayesu’s request was denied by the Appeals Chamber in its Decision of 22 August 2000 on the grounds that the issue raised therein had not been raised at first instance. In his Reply, Akayesu seems to rely partly on this fact to show the incompetence of his Counsel. In the Motion to Rectify, Akayesu asserted that the issue had been raised at first instance and that the Appeals Chamber had erred on this point in its Decision of 22 August 2000. However, he has failed to show that this was so. The Appeals Chamber sees no reason to depart from its finding on this issue as reflected in its Decision of 22 August 2000 and finds accordingly that there is no cause for it to consider further the issues raised in this ground of appeal.

377. The Appeals Chamber denies the Motion to Rectify and upholds its Decision of 22 August 2000 denying leave to add this ground of appeal.

[633] Consolidation or summarization of motions not yet disposed of (in execution of the Scheduling Order of 24 May 2000), filed on 2 June 2000. This request was originally included in the motion to amend the notice of appeal on the impartiality and independence of the Tribunal, and to add new grounds of appeal, filed on 7 December 1999.

[635] Notice of Motion to Rectify or Correct and Reconsider Part of the Decision of 22 August 2000 (Decision on the consolidation or summarization of motions not yet disposed of) (Re: Amendment of Notice of Appeal), filed on 20 October 2000 (“Motion to Rectify”). It is noted that almost two months elapsed between the issuance of the Decision of 22 August 2000 and the filing of the Motion to Rectify by Akayesu. In addition, it was filed less than two weeks before the Hearing on Appeal. Akayesu sets out reasons for the delay at para. 10 of the Motion to Reply, stating that although his Counsel noticed shortly after the rendering of the Decision of 22 August 2000 that there was a mistake, it was only”[o]n or about 16 October 2000” that they “conceived a possible legal remedy.” Despite the very long delay in filing the Motion to Rectify, the Appeals Chamber decided at the Hearing on Appeal to hear the arguments of the parties on this issue.

[636] Prosecution’s Response to “Notice of Motion to rectify or correct and reconsider part of the Decision of 22 August 2000”, filed on 25 October 2000” (“Prosecution’s Response to the Motion to Rectify).

[637] Appellant’s Reply to Prosecution’s Response to his “Notice of Motion to rectify or correct and reconsider part of the Decision of August 22, 2000”(Decision on the consolidation or summarization of motions not yet disposed of) (Re: Amendment of Notice of Appeal), filed 26 October 2000 (“Reply to the Motion to Rectify”).

[639] T(A), 1 November 2000, pp. 108 to 110. The Prosecution filed a letter dated 5 September 2000 from the Ministry of Legal Affairs, Republic of Zambia, enclosing a copy of a Judgment of the High Court of Zambia dated 1 February 1996, the Request for detention of Akayesu filed on 22 November 1995 by the Prosecution pursuant to Rule 40 of the Rules and Notice of Appeal against the decision of the Zambian High Court of 1 February 1996, filed on behalf of Akayesu on 16 February 1996. In addition, at the request of Akayesu, the Prosecution provided a copy of the letter it had sent to the Minister of Legal Affairs of Zambia to obtain information on the arrest and detention of Akayesu [T(A), 1 November 2000, pp. 177 to 179, 2 November 2000, p. 41].

[640] Akayesu’s Brief, Ch. 1, para. 21. The submissions in relation to each limb are set out in Akayesu’s Brief, Ch. 1, paras. 22 to 44 and paras. 45 to 53 respectively.

[641] Regarding his detention, Akayesu submitted the following facts: He entered Zambia between August 1994 and the start of 1995. He possessed a visa authorizing him to stay in Zambia until 29 October 1995. On 10 October 1995, he was arrested by the Zambian authorities following a letter from the Ambassador of Rwanda in a letter dated 6 September 1995, asking them to detain him and others on suspicion of having committed genocide in Rwanda. On 22 November 1995 the Prosecution submitted a request to the authorities of Zambia to detain Akayesu (and others) provisionally under Rule 40 of the Rules. On 1 February 1996 the High Court of Zambia ruled in a Judgment that Akayesu should not be released from custody but that he should be handed over to the Tribunal, pursuant to both the Prosecution request and Security Council resolution 978. On 13 February 1996, the Prosecution filed its Indictment against Akayesu. On 16 February 1996, the Indictment was confirmed, an arrest warrant issued and an order issued for the continued detention of Akayesu in Zambia. One week later the Indictment was submitted to the authorities of Zambia to be served on Akayesu. Akayesu submits that it was only on 29 March 1996 that the authorities of Zambia informed Akayesu of the arrest warrant, the extension of his detention and the decision by the Tribunal to confirm his indictment. He was transferred to the Detention Facility in Arusha on 26 May 1996 and had his initial appearance on 30 May 1996. See also, Trial Judgment, paras. 9 to 12.

[643] As leave to add this ground of appeal was denied by the Appeals Chamber in the Decision of 22 August 2000, the Prosecution did not respond to Akayesu’s arguments contained in Akayesu’s Brief, para. 2.1. (T(A), 2 November 2000, pp. 31, 32). During the Hearing on Appeal, it did not request leave to file further written submissions.

[644] Motion to Rectify, para. 1: “[T]he issue of unlawful detention and failure to notify the Appellant of the charges against him in a timely manner was raised before the Trial Chamber accompanied by a request to stay proceedings.” Also, in Reply to the Motion to Rectify, paras. 5 – 7: Akayesu submits: “The Appellant never abandoned his complaints about unlawful detention and the failure to be informed of the charges pending against him that were duly raised before the Trial Chamber.”

[645] T(A), 2 November 2000, p. 47. The Prosecution also began by presenting its arguments concerning the merits of this ground of appeal, that is, to know whether the detention was unlawful as Akayesu submits.

[646] T(A), 2 November 2000, pp. 48 and 49. Prosecution’s Response to the Motion to Rectify, para. 12 et seq.

[647] T(A), 2 November 2000, pp. 48 to 51. The Prosecution submits that Akayesu was “challenging the manner in which Rwanda made its request, stating that it was improper that the Rwandan request was made through the embassy in Pretoria and not directly from Kigali, and different things of that nature.” The Prosecution acknowledges that in the Prosecution’s Response to the Preliminary Motion, it set out the facts relating to the request filed under Rule 40. However, it submits that Akayesu cannot rely on this as evidence that the issue was brought to the attention of the Trial Chamber such that it rebuts an argument of waiver. The Prosecution also submits that there is no mention of this issue in the transcript of the oral arguments of 26 September 1996, on statements by the parties on the preliminary motion.

[649] Prosecution’s Response to the Motion to Rectify, para. 13.

[651] Consolidation or summary of motions not yet disposed of (in execution of scheduling order dated 24 may 2000), filed on 2 June 2000, para.35; Motion to amend the notice of appeal on the impartiality and independence of the Tribunal, and to add new grounds of appeal, filed on 7 December 1999, para. 24; Akayesu’s Brief, Chapter 1, paras. 14 and 15.

[652] Akayesu’s Brief, chapter 3, paras. 10 and 14. Akayesu submits: “The Appellant blames his counsel for failing, despite his instructions, to raise issues related to the legality of his arrest, detention and imprisonment. They were expected to and should have raised the issue of the violation of his right to be informed promptly of the cause for his arrest and of his right, as an accused, to be informed promptly of the charges against him and to be arraigned before the Tribunal”.

[653] The Prosecution asserts that “[w]ithout reference to any evidence the Appellant alleges that despite his instructions, his former Counsel did not file any motion concerning alleged violations of his rights during his detention in Zambia. The Prosecution submits that the Appellant failed to prove that any instructions were given and for this reason these allegations should be rejected”. Prosecution’s Response, para. 4.23.

[656] Celebici Appeal Judgment, para. 724; Furundzija Appeal Judgment, para. 40; Tadic Decision (additional evidence), paras. 41 and 42.

[657] The ICTY Appeals Chamber has found that a party validly raises an issue, such that he or she rebuts an allegation of waiver, if it is raised either during the trial or pre-trial phase: Furundzija Appeals Judgment para. 174: “[The Appellant] could have raised the matter, if he considered it relevant, before the Trial Chamber, either pre-trial or during trial. On that basis, the Appeals Chamber could find that the Appellant has waived the right to raise the matter now and could dismiss his ground of appeal.”

[658] Tadic Appeal Judgment, para. 55, cited in Kambanda Appeal Judgment, para. 25.

[659] Kambanda Appeal Judgment, para. 25. See also Aleksovski Decision , para. 20: “…no such complaint was made to the Trial Chamber…and it should not be permitted to be made for the first time on appeal.” Celebici Appeal Judgment, para. 640.

[661] In this connection, during the Hearing on Appeal, the Appeals Chamber observed that “The initial question here is as to the admissibility of the ground. You raised with the Appeals Chamber a question of the legality of the detention of your client, and the Appeals Chamber granted your motion for inclusion of appropriate ground. This was done on the basis of your contention that the issue had been raised in the law of court (sic). So it becomes important, if not imperative, to scrutinize the arguments in the court below to see what were the grounds which were presented, because those are the grounds which will control the scope of the leave which this Appeals Chamber granted to you to raise this point”. T(A), 2 November 2000, p.75.

[662] Preliminary Motion filed by Akayesu, on 27 May 1996, attached as exhibits 2 and 3 to Akayesu’s Motion to Rectify (titled “conclusions”).

[663] The Prosecution filed its response on 5 September 1996: Réponse à la requête en exception préjudicielle introduite par la défense, attached as exhibits 4 and 5 to the Motion to Rectify.

[664] Akayesu’s Brief, Chapter 1, paras. 22 to 44. See, para. 42: “In the submission of the Appellant the period of time which he spent in custody, prior to confirmation of the indictment, was in violation of legal norms governing provisional detention of suspects under international law.” See also, para. 44: “The Appellant submits that the Prosecutor unlawfully extended his custody in Zambia and that he could not detain the Appellant in such a manner under the pretext that investigations were yet to be completed and that he was not in a position to charge the Appellant. To avoid detaining Appellant unlawfully, the Prosecutor should have released the Appellant. No system of administration of justice should allow a Prosecutor to assume such broad powers as to deprive any detained person of his basic rights”.

[667] Akayesu’s Brief, Chapter 1, para. 32.

[668] In the Motion, Akayesu argued: (in general) violation of the right to be notified of the charges against him; that neither he nor his lawyer had access to documents concerning his arrest and charges; that he had been arbitrarily arrested by the Zambian authorities; that he had been inhumanely treated in the detention centre in Lusaka central prison; that he was denied access to counsel while in detention in Lusaka and that the decision to transfer him to the Tribunal should not have been taken in his absence. In addition, he applied for the exclusion of certain evidence and alleged that his right to a fair and public trial by an independent and impartial court has been disregarded.

[669] T, 26 September 1996, pp. 10 to 39 (Akayesu) and pp. 39 to 45 (Prosecution).

[670] Akayesu submitted during the hearing: “The third problem […] is the way in which…Akayesu was arrested in Zambia.” Akayesu refers then to the letter requesting Akayesu’s arrest from the Rwandan authorities. T, 26 September 1996, pp. 18 and 19.

[671] Decisions on the Preliminary Motions presented by the Prosecution and the Defence, before Trial Chamber I, 27 September 1996, p. 3 (emphasis added).

[672] T(A), 2 November 2000, pp. 57 to 65. Akayesu interprets the Motion, the Prosecution’s Response to the Motion and oral argument by his Counsel on 26 September 1996, as effectively arguing at trial, the issue raised in the proposed ground of appeal. See also, T(A), 2 November 2000, p. 77.

[673] As pointed out by the Prosecution “the issues raised in the [Motion] are not the same as those raised in [Akayesu’s] additional Ground of Appeal.” Prosecution Response to the Motion to Rectify, para. 13. See also, Trial Judgment, para. 14.

[674] The Appeals Chamber notes that the Prosecution submitted that it had stated in their response to the Preliminary Motion, the facts regarding the motion they filed under Rule 40. The Prosecution submits that although the matter was brought to the attention of the Trial Chamber, Akayesu could not rely on the Prosecution to bring up a ground of appeal if, for its part, he has not in one way or the other at least put forward some arguments in support of this ground. The Prosecution submits that Akayesu “cannot rely on the prosecutor bringing up an issue for his appeal if he has not, in some way or other, at least made some arguments on that issue”. T(A), 2 November 2000, p. 50. The Appeals Chamber agrees that Akayesu cannot rely on the fact that the Prosecution had allegedly raised the issue before the Trial Chamber and holds that, in any case, Akayesu failed to further develop the material within the context of arguments worthy of the name. The Prosecution simply stated the information when it summarized the events.

[675] See, question asked by Judge Shahabuddeen during the Hearing on Appeal, T(A), 1 November 2000, pp. 245 and 246 and 2 November 2000, pp. 73 to 78.

[677] T(A), 2 November 2000, pp. 74 and 76 to 78: “The argument raised by Mr. Scheers did not explicitly deal with the legality, whether there were 90 days in Rule 40….Mr. Scheers simply stated that it was illegal….I recognise that Mr. Scheers was not clear….The Prosecutor was very clear, and the Court weighed the arguments and applied the law.”

[678] Akayesu’s Brief, chapter 1, para.45. T(A), 1 November 2000, pp.106 to 107.

[679] Akayesu’s Brief, Ch. 1, paras. 46 - 47. Akayesu submits that during his detention he was denied the right to be informed promptly of the general nature of the charges against him and that following the confirmation of the indictment, he was not immediately informed of the charges held against him.

[680] Akayesu’s Brief, Chapter 1, para. 48. Akayesu submits that the right to be brought promptly before the Tribunal is guaranteed in both international human rights norms and before the Tribunal and that the period of time in question here clearly violates these norms. He submits that in Barayagwiza, the Appeals Chamber clearly confirmed the right to be informed of charges during the period of initial detention. Akayesu’s Brief, paras. 51 and 52.

[682] T(A), 2 November 2000, p. 43 to 45. The Prosecution submits that Akayesu conceded that he knew even before the Rule 40 Request of 22 November 1995, that the Tribunal was interested in his case and that he himself has referred to a letter dated 31 October 1995 from the Prosecution of the Tribunal. In addition, he was aware of the decision of the High Court of Zambia of 1 February 1996 - it is clear from that decision that the whole issue of transfer to the Tribunal occupied the mind of the High Court. Finally, it is clear that Akayesu met with a former chief of investigations of the Tribunal at the start of February 1996. As to the allegation of late service of the Indictment, the Prosecution submits that the Indictment was confirmed on 16 February 1996 and served on the Zambian authorities on 8 March 1996 to be later served on Akayesu. Although Akayesu alleges that he received the Indictment late March 1996, the Prosecution submits that this can be through no fault of theirs.

[683] The Motion, para. B.2. He goes on to allege “even his Counsel has still not received a copy of the Indictment or of any subpoena served to the defendant and informing him formally of the charges made against his client.”

[685] T, 26 September 1996, pp. 15 to 17). In its oral decision on 27 September 1996, the Trial Chamber stated that “there ha[d] been apparently some delay in communication of the indictment and the supporting material in French to the Counsel for the Defence. The Office of the Prosecutor, however, is not bound by any specific time-limit in the Rules save the provision in Rule 66 that it shall be done as soon as practicable.”

[686] Most of these requests were disposed of in the Decision of 24 May 2000.

[687] Motion to amend the notice of appeal on the impartiality and independence of the Tribunal and to add new grounds of appeal, filed on 7 December 2000, as reflected in consolidation or summary of motions not yet disposed of (in execution of the Scheduling Order dated 24 May 2000), filed on 2 June 2000.

[688] Jean-Bosco Barayagwiza v. The Prosecutor, Decision, Case No. ICTR-97-19-AR72, 3 November 1999. Akayesu acknowledges that this decision led him to apply for leave to add this ground of appeal. “The Appellant applied diligently to amend his Notice of Appeal on November 30, 1999 following the well-known November 3, 1999 Appeals Chamber decision…that established important new precedent in the area of illegal detention, habeas corpus and the right on an accused person to be informed of the charges against him.” Notice to Rectify, para. 8. In the same vein, his initial request made reference in general to the development of “…”. Motion to amend the notice of appeal on the impartiality and independence of the Tribunal , filed on 7 December 1999, para. 24. In the motion for consolidation, the Counsel stated that they had scrutinized the Decision. Consolidation or summary of motions not yet disposed of (in execution of the scheduling order dated 24 May 2000), filed on 2 June 2000, para. 35.