2. PROCEEDINGS
2.1 Procedural background
2.2 Evidentiary matters
2.3 The Defence of alibi
2.1 Procedural
background
- On 11 February 1995, Alfred Musema was arrested in
Switzerland by the national authorities, on the basis of a warrant of arrest issued by the
examining magistrate. Musema was detained by the Swiss authorities, confirmation of the
detention being extended on a monthly basis in conformity with Articles 56 and ff. of the
Code of the Martial Criminal Procedure. On 4 March 1996, the then Prosecutor, Richard J.
Goldstone, applied to the Tribunal for a formal request for deferral by Switzerland
concerning Alfred Musema(1). By decision of 12 March 1996(2), Trial Chamber I, constituted of Judge Laďty Kama,
Presiding, Judge Lennart Aspegren and Judge Navanethem Pillay, formally requested the
Swiss federal Government to defer to the Tribunal all investigations and criminal
proceedings currently being conducted in its national courts against Alfred Musema. The
Chamber further requested the Government of Switzerland to continue to detain Alfred
Musema until an indictment was established and confirmed and a warrant of arrest was
issued against him by the Tribunal.
- In conformity with Articles 17 and 18 of the Statute, and
Rules 28 and 47 of the Rules, the Prosecutor presented an indictment dated 11 July 1996
against Alfred Musema to Judge Yakov Ostrovsky, who confirmed all the counts therein by
decision of 15 July 1996(3). A warrant of arrest and order
for surrender addressed to the Swiss authorities was issued by Judge Ostrovsky on the same
day(4). Musema was transferred to the Tribunal's Detention
Facility in Arusha on 20 May 1997.
- Musema's initial appearance had to be rescheduled on two
occasions, 16 June 1997 and 3 September 1997 respectively. Defence Counsel, Ms Marie-
Paule Honegger of the Geneva Bar, failed to attend on both occasions and declined to
accept the appointment of alternate counsel. Musema insisted on his right to have his
appointed counsel present before entering a plea. After further delays were caused by the
Defence Counsel to the scheduling of the initial appearance, the Chamber found that the
Defence Counsel's conduct and lack of co-operation was obstructing the proceedings and was
contrary to the interests of justice. The Chamber thus issued a warning to Ms Honegger,
pursuant to Rule 46(A) of the Rules, that she may be sanctioned by the refusal of further
audience before the Chamber if she defaulted in complying with the Chamber's request to
represent in person her client during his initial appearance scheduled anew for 18
November 1997, in which case the Chamber would instruct the Registrar to replace her as
counsel for Musema under Rule 46(C)(5).
- On 18 November 1997, the Defence Counsel, despite the said
warning and notice, failed to be present at the initial appearance of Musema. Finding no
reasonable or compelling grounds in the response of the assigned counsel for refusing to
be present at the Tribunal for the hearing, the Chamber gave effect to the said warning by
refusing her further audience before the Tribunal. The Chamber instructed the Registrar to
immediately assign a new counsel to Musema(6).
- Prior to formally charging Musema by having the Indictment
read out to him during the initial appearance, the Chamber informed Musema that his
pleading guilty or not guilty to the charges without the presence of his lawyer did not
deprive him of his right to counsel, and further explained to him that should he fail to
enter a plea to the charges, a plea of not guilty would be entered on his behalf. After
having satisfied itself that Musema had understood and accepted this, the Chamber
proceeded with the initial appearance. The Chamber recalled that, in any event, Musema
would be entitled to conduct his own defence if he so chose, pursuant to Rule 45(F) of the
Rules. Thereafter, Musema pleaded not guilty to all the counts preferred against him.
- Furthermore, pursuant to Rule 69 of the Rules, the Chamber
granted permission to the Prosecutor to temporarily redact the names and other identifying
information of her witnesses in the supporting material until such time as the Chamber had
ordered protective measures for the Prosecutor's witnesses(7).
- On 30 October 1998, the Prosecutor requested leave to file
an amended Indictment against Alfred Musema. The proposed 39 page amended Indictment was
filed on 3 November 1998(8). On 18 November 1998, after
having heard the parties during the audience held to that end, Trial Chamber I rendered
its decision thereon(9). The Chamber granted leave to the
Prosecutor to add the count of Complicity in Genocide as an alternative Count to the Count
of Genocide in the Indictment and on the same facts adduced in respect of the latter
Count. Furthermore, leave was granted to the Prosecutor to amend paragraph 5 of the
Indictment to include the allegation of Individual Criminal Responsibility under Article
6(3) of Statute in respect to every count. The Chamber directed the Prosecutor to withdraw
the draft amended Indictment, and to immediately amend the original Indictment in
conformity with the Decision. The new Indictment was filed by the Prosecutor on 20
November 1998. On the same day, Musema pleaded not guilty to the new charges therein
before Trial Chamber I, constituted for this hearing of Judge Lennart Aspegren, Presiding,
Judge Tafazzal H. Khan and Judge Navanethem Pillay.
- By decision of 20 November 1998, the Chamber granted the
motion of the Prosecutor for protective measures for her witnesses(10).
- On Monday 25 January 1999, before Trial Chamber I,
constituted of Judge Lennart Aspegren, Presiding, Judge Laďty Kama and Judge Navanethem
Pillay, the case on the merits of Musema commenced with the opening arguments of the
Prosecutor, and the hearing of the first prosecution witness. Defence Counsel, Mr. Steven
Kay QC, reserved his right to make an opening statement at the commencement of the case
for the defence.
- On 17 March 1999, the Chamber denied the application of 23 November 1998 and the 22
February 1999 corrigendum thereto filed by African Concern, a charitable non-governmental
organization, to file a written brief as Amicus Curiae in the case(11)
on the subject of restitution of property to victims.
- By Decision of the Chamber rendered on 6 May 1999, the Prosecutor was granted leave to
amend the Indictment against Musema, inter alia, by adding of one new count
against Musema and by expanding on the facts adduced in the then existing Indictment in
support of the new count. The Chamber acknowledged that although the filing of the motion
for leave to amend the Indictment came at a late stage in the presentation of the
Prosecutor's case, this did not cause prejudice to Musema. Furthermore, the Chamber held
that no undue delay would be caused to the proceedings by allowing the amendments as all
the pertinent witness statements had already been disclosed to the Defence and as all
witnesses the Prosecutor intended to rely upon in support of the new count had already
testified in the case(12).
- With regard to witnesses, the Chamber granted leave to both the Prosecutor and the
Defence to call additional witnesses(13). The Chamber also
ordered, pursuant to a request of the Prosecutor and on the basis of Rule 90bis
of the Rules, on 19 April 1999, that three of the Prosecutor's protected witnesses be
transferred temporarily to the Tribunal's Detention Facilities in Arusha in order to
testify in the trial of Musema. The co-operation of the Government of Rwanda was sought in
the matter(14).
- In total, twenty-two protected witnesses, one investigator and one expert witness
appeared for the Prosecutor and she closed her case on 7 May 1999. The Defence opened its
case on 10 May 1999 with the testimony of Musema. Five other witnesses, including two
protected witnesses and one investigator appeared for the Defence. The Defence closed its
case on 23 June 1999.
- Closing arguments were heard on 25 and 28 June 1999 and the case put into deliberation.
In all, the Trial covered 39 days between 25 January and 28 June 1999.
2.2 Evidentiary matters
-
The Chamber will here address general evidentiary matters of concern which arose
during this trial, including general principles of the evidence evaluation, assessment of
documentary evidence, false testimony, impact of trauma on the testimony of witnesses,
interpretation and cultural factors affecting the testimony of witnesses.
2.2.1 General Principles of the Assessment of
Evidence
- The Chamber has considered the charges against Musema on the basis of testimony and
exhibits offered by the Parties to prove or disprove allegations made in the Indictment.
- The Chamber also relies on facts not in dispute and on other elements relevant to its
decision, such as constitutive documents pertaining to the establishment and the
jurisdiction of the Tribunal. The Chamber notes that, under Rule 89(A) of the Rules, it is
not bound by any national rules of evidence. The Chamber has thus applied, in accordance
with Rule 89, the rules of evidence which in its view best favour a fair determination of
the matter before it and are consonant with the spirit and general principles of the law.
Admissibility
- The admission of all evidence, regardless of its form, is
governed by Rule 89(c) of the Rules, which states:
"A Chamber may admit any relevant evidence which it
deems to have probative value."
Reliability
- The application of these criteria of admissibility
(relevance and probative value) has been clarified by a majority of Trial Chamber II of
the ICTY in the Tadi case(15). This decision established
that evidence which is both relevant and probative must also enjoy some component of
reliability.
- The role that reliability plays in determining the
admissibility and the probative value of evidence is further clarified by the decision of
the ICTY in the Delali case(16). The Trial Chamber there
stated that:
"for evidence to be relevant, and to have a nexus
between it and the subject matter, such evidence must be reliable. The same is true for
evidence which is said to have probative value."(17)
- The Chamber went on to state that reliability is the
invisible golden thread which runs through all the components of admissibility.
- The Chamber concurs with this understanding of the
relationship between relevance, probative value, and reliability. The reliability of
evidence does not constitute a separate condition of admissibility; rather, it provides
the basis for the findings of relevance and probative value required under Rule 89(c) for
evidence to be admitted.
Probative Value
- As a general principle, the Chamber attaches probative value to evidence according to
its credibility and relevance to the allegations at issue.
- As the Chamber has noted above, the probative value of evidence is based upon an
assessment of its reliability.
- The Chamber has assessed the relative weight and probative value to be accorded to each
piece of evidence in the context of all other evidence presented to it in the course of
the trial.
Corroboration
- The Chamber notes that during trial, the corroboration of evidence was an important
factor in assessing the probative value of much of the evidence presented by the Parties,
in particular where only one testimony was presented in support of certain facts alleged
in the Indictment, and also in relation to documentary evidence. (Documentary evidence is
dealt with below.) The Chamber now turns to the question of the corroboration of
testimonies.
- The Chamber recalls that it is bound only to the application of the provisions of its
Statute and Rules, in particular Rule 89 of the Rules. Rule 89 sets out the general
principle of the admissibility of any relevant evidence which has probative value,
provided that such evidence meets the requirements for the conduct of a fair trial. The
Chamber may rule on the basis of a single testimony if, in its opinion, that testimony is
relevant and credible.
- The manner of application of the only Rule which deals specifically with the issue of
corroboration of testimony, Rule 96(i) - which states that no corroboration shall be
required for the testimonies of victims of sexual assault - was also raised during the
trial.
- The Chamber recalls that, as is stated in the Akayesu Judgement(18)
and the Rutaganda Judgement(19), sub-Rule 96(i)
accords to the testimony of a victim of sexual assault the same basis of evaluation of
reliability as the testimony of victims of other crimes. In the opinion of the Chamber, it
cannot be concluded on the basis of this sub-Rule that in cases of crimes other than
sexual assault, corroboration is required; nor does it follow from the sub-Rule, as
Counsel for the Defence argued in this case, that corroboration is required where a
witness is testifying to the occurrence of a sexual assault. On the contrary, it is proper
to infer that the ability of the Chamber to rule on the basis of testimonies and other
evidence is not bound by any rule of corroboration, but rather on the Chamber's own
assessment of the probative value of the evidence before it.
- The Chamber may freely assess the relevance and credibility of all evidence presented to
it. The Chamber notes that this freedom to assess evidence extends even to those
testimonies which are corroborated: the corroboration of testimonies, even by
many witnesses, does not establish absolutely the credibility of those testimonies.
Corroboration in relation to Count 3 (Conspiracy to Commit Genocide)
- The Chamber notes that this freedom extends to evidence pertaining to a Count of
Conspiracy to Commit Genocide, as is present in the Indictment in the instant case. The
Chamber notes that the probative value of the testimony of alleged co-conspirators will be
assessed in relation to its credibility and relevance, on the same basis as other
evidence.
- However, the presence of a Count of Conspiracy to Commit Genocide may allow the
admission of evidence which does not pertain specifically to the facts alleged in the
Indictment, since such evidence may serve to establish the existence of and/or the
participation of the Accused in the conspiracy alleged in the Indictment. In particular,
evidence relating to the acts and declarations of fellow members of the alleged conspiracy
performed or made in pursuance of the objects of the conspiracy may have
probative value, and may, as a result, be deemed admissible, though such evidence does not
pertain to facts alleged in the Indictment.
- The admissibility of such evidence shall, as shall all other evidence, be determined
through reference to the criteria of relevance and probative value, under Rule 89(C) of
the Rules. Relevance is to be assessed through reference to the nexus between the evidence
and the existence and/or commission of the conspiracy. As Judge Pal said in the Tokyo
Judgement, speaking only of declarations and not acts:
"In order to be competent as evidence the declaration must have been made in
furtherance of the prosecution of the common object, or must constitute a part of the res
gestae of some act done for the accomplishment of the object of the conspirators,
otherwise such a statement should not be competent evidence against the others."(20)
- The extent to which such evidence will prove merely the existence of a conspiracy,
rather than the participation of the Accused in that conspiracy, will be a matter of
assessment by the Chamber.
Hearsay evidence
- The Chamber notes that hearsay evidence is not inadmissible per se, even when
it cannot be examined at its source or when it is not corroborated by direct evidence.
Rather, the Chamber has considered such hearsay evidence, with caution, in accordance with
Rule 89. The Chamber further notes that, where it has relied upon such evidence, that
evidence has, as with all other evidence, been subject to the tests of relevance,
probative value and reliability discussed above.
Evidence not presented
- The value of the evidence presented to the Chamber is in no way altered by the
non-provision of other evidence(21). The Chamber
is free to evaluate all evidence before it on the basis of its relevance and probative
value. The absence of forensic or real evidence shall in no way diminish the probative
value of the evidence which is provided to the Chamber; in particular, the absence of
forensic evidence corroborating eyewitness testimonies shall in no way affect the
assessment of those testimonies, the relevance, reliability and probative value of which
shall be assessed as discussed above. Similarly, the failure of one Party to present
evidence to the Chamber shall not in any way affect the Chamber's assessment of the
probative value of such evidence if it is presented by the other Party(22).
2.2.2 The Assessment of Documentary Evidence
- Documentary evidence consists of documents produced as evidence for evaluation by the
Tribunal. For the purposes of this case, the term "document" is interpreted
broadly, being understood to mean anything in which information of any description is
recorded. This interpretation is wide enough to cover not only documents in writing, but
also maps, sketches, plans, calendars, graphs, drawings, computerized records, mechanical
records, electro-magnetic records, digital records, databases, sound tracks, audio-tapes,
video-tapes, photographs, slides and negatives. Many, though not all, of these types of
documents were produced in this case by both Parties in support of their respective cases.
- Considered as a distinct form of evidence, documentary
evidence raises a number of particular issues, both in the assessment of its admissibility
and the assessment of its probative value.
The burden of proof
in relation to admissibility
- The Chamber notes that in order for a document to be
admissible as evidence, the Party that seeks to rely on the document must first prove that
it meets with the standards of relevance and probative value (discussed above) laid out by
sub-Rule 89(C). In other words, the burden of proof of the reliability (which, as
discussed above, "runs through" the criteria of admissibility, namely relevance
and probative value) of the document lies on the Party that seeks to rely on the document.
When documents are admitted with the consent of both Parties, as has occurred in the
instant case, the issue of proof of reliability does not arise. A similar situation arises
when a document is admitted by way of judicial notice, as a "fact of common
knowledge" under Rule 94, since no proof of the fact is required. When, however, the
reliability of documentary evidence is questioned, the issue arises as to the required
standard of proof of reliability for the admission of evidence.
- With certain exceptions, discussed below, the Chamber is of
the opinion that the standard of proof required to establish the reliability of
documentary evidence is proof on the balance of probabilities. The admission of evidence
requires, under sub-Rule 89(C), the establishment in the evidence of some relevance
and some probative value. Accordingly, the standard of proof required for
admissibility should be lower than the standard of proof required in the final
determination of the matter at hand through the weighing up of the probative value of all
the evidence before the Chamber. The admission of evidence does not require the
ascertainment of the exact probative value of the evidence by the Chamber; that comes
later. Admission requires simply the proof that the evidence has some probative
value. Different standards of proof are appropriate for the process of admission and the
process of determining the exact probative value of the same evidence.
- Furthermore, the determination of admissibility does not go
to the issue of credibility, but merely reliability. Accordingly,
documentary evidence may be assessed, on the balance of probabilities, to be reliable, and
as a result admitted. Later, that same evidence may be found, after examination by the
Chamber, not to be credible.(23)
- The circumstances which give rise to exceptions to this
general rule include (but are not limited to) those circumstances in which the rights of
the Accused are threatened by the admission of the evidence in question, or wherever the
allegations about the unreliability of the evidence demand for admissibility the most
exacting standard, consistent with the allegations. In such cases, a standard of proof of
"beyond reasonable doubt" may, in the opinion of the Chamber, be justified.(24)
Probative Value
- The Chamber notes that the general principles governing the
assessment of the probative value of documentary evidence do not differ in any way from
the general principles governing the assessment of the probative value of evidence
presented in other forms. Documentary evidence is assessed in accordance with the Rules,
in particular Rule 89.
- Notwithstanding this commonality of general principles, the
Chamber notes that the means by which credibility (and to a lesser extent
relevance) will be assessed do differ according to the form and nature of the
evidence before the Chamber. The Chamber has considered a number of factors specific to
documentary evidence in assessing the credibility of this evidence. These are discussed in
detail below.
- Distinct from the question of the authenticity of a
document is the issue of the relationship between the document and its source, or
authorship. Many national, and indeed some previous international, jurisdictions,
have disallowed evidence which is deemed "self-serving": that is, those
documents written or produced by one Party (usually by the Accused) in order to support,
in a propagandistic way, his or her own claims(25).
- The Chamber has deemed it inappropriate to exclude such
evidence unless, as sub-Rule 89© suggests, it is deemed either irrelevant or devoid of
probative value.
- The Chamber notes, nevertheless, that the source of a
document may, taken in context, impact upon the assessment of the reliability or
credibility (or both) of the document. For example, evidence produced in support of a
defence of alibi from a source other than the Accused may be of greater probative value
than evidence provided or produced by the Accused. While noting this, the Chamber
emphasizes that such an understanding of the relationship between the source of
documentary evidence and its probative value must in no way be interpreted as a
presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its
assessment of the probative value of documentary evidence to interfere with the right of
the accused to a fair trial.
- Central to the establishment of the credibility and
reliability of documentary evidence is the establishment (by the Party that seeks to rely
on the document) of the authenticity of the document, and of its contents. The
central importance of authenticity in the Tribunal's assessment process is manifest in
sub-Rule 89(D) of the Rules, which states that a Chamber may request verification of the
authenticity of evidence obtained out of court.
- In assessing the authenticity of these documents and their
contents, the Chamber has, as with all forms of evidence, relied on its power under
sub-Rule 89(C) to admit any relevant evidence which it deems to have probative value. In
particular, it has acted under sub-Rule 89(B), applying rules of evidence which will best
favour a fair determination of the matter before it and are consonant with the spirit of
the Statute and the general principles of law.
- In assessing the authenticity of documentary evidence, the
Chamber has taken into account, amongst other factors, the form, contents and purported
use of the document, and the position of the Parties thereon.
- Form includes such matters as:
- whether the document provided to the Chamber is an original
or a copy. Originals will, as a general rule, have a higher probative value than copies;
- whether, a document being a copy, is in any way registered
or enrolled with some institutional authority;
- whether the document is signed, sealed, certified, stamped
or in any other way officially authorized by some authority or organization;
- whether or not the document has been duly executed. In general terms this involves
showing that it was written, produced or authorized by the person or party by whom it
purports to be written, produced or authorized.
- Resolution of such matters may be effected by the Chamber
through a variety of means, pursuant to sub-Rule 89(D), which states that a Chamber may
request verification of the authenticity of evidence obtained out of court. The means
available to the Chamber are limited by sub-Rule 89(B), which states that a Chamber shall
apply rules of evidence which will best favour the fair determination of the matter before
it and are consonant with the spirit of the Statute and the general principles of law.
Accordingly, while the Chamber may order the production of a sample of a witness'
handwriting for purposes of comparison against documentary evidence, it cannot order such
a sample to be produced from the Accused against his or her will, since such an order
would compel the Accused to testify against himself or herself(26).
- The Chamber notes that among the means available to the
Chamber to resolve such matters of form is resort to expert testimony.
Other factors affecting probative value:
- The content of a document may be direct evidence of the
existence of a fact or a state of affairs, and of the authenticity of the document itself.
The probative value of the content of a document will be assessed by the Chamber in light
of all the circumstances of the case, including its relation to oral testimony given
before the Chamber pertaining to the content of the document.
- Similarly, the purported use of the document, whether
provided by the content of the document, its form, or oral testimony, may, in certain
circumstances, be relevant in the assessment of the authenticity and the probative value
of the document.
- While all of these factors are relevant in assessing the
authenticity and probative value of documentary evidence, other factors may also be
considered. Further, in assessing authenticity, the Chamber observes that as a general
rule, it is insufficient to rely on any one factor alone as proof or disproof of the
authenticity of the document. Authenticity must be established through reference to all
relevant factors.
The relationship between oral testimony and documentary evidence:
- In many instances in this case, doubt as to the probative
value of a document has arisen not through the form or content of the document, but
through inconsistencies between the document and oral testimony rendered before the
Chamber. The Chamber wishes, therefore, to address this matter in detail.
- Concerning the question of oral testimony as
"corroboration" of documentary evidence, the Chamber notes the following
matters.
- In assessing the probative value of the documents
submitted, the Chamber has distinguished between those documents of which the form,
contents and purported use are found to be supported by secondary evidence, primarily oral
testimony, and those documents which are found to lack secondary support. Any evidence
which is supported by other evidence logically possesses a greater probative value than
evidence which stands alone, unless both pieces of evidence are not credible. Accordingly,
oral testimony may serve to support, or "corroborate", documentary evidence. The
Chamber notes that this approach is wholly in accord with its stated views on the free
assessment of evidence and the use of corroborating evidence, and with Rule 89 of the
Rules.
- The Chamber notes that such an approach to the assessment
of the probative value of documentary evidence is supported by earlier practice in
international criminal proceedings. In the Tokyo Judgement of 1946,(28) Judge Pal stated that "where a written instrument
is not a fact in issue but only a piece of evidence in proof of some act, other
independent evidence is admissible"(29). In relying
on this statement as authority for its approach to the assessment of documentary evidence,
the Chamber notes that many of the documents submitted as evidence in this case
unambiguously fall into the second category to which Judge Pal made reference - that of
"evidence in proof of some other act". The Chamber notes further that the
principles outlined by Judge Pal in relation to admissibility are applicable to the
assessment of probative value, since what is at stake in both situations is the
reliability of the evidence in question.
- Judge Pal went on to discuss the use of extrinsic evidence
in the interpretation of written instruments:
"The words of a written instrument may, to all
appearance, appear to be free from ambiguity in themselves. Yet external circumstances may
create some doubt or difficulty as to the proper application of the words. In such cases
the question of construction may admit of extrinsic evidence.
Whether it be 'the intention of the writer' or 'the
meaning of the words', the aim really is to ascertain the true nature of the transaction.
Neither 'intention' nor meaning of the words can be the sole object. The primary object is
to determine what it was that was really intended and the primary source of determining
such intention is the language used"(30).
- This statement further supports the rule that oral
testimony, or other independent evidence, may be used to "corroborate"
documentary evidence. Since documentary evidence is not limited to written material, the
use of independent or secondary evidence to "corroborate" documentary
evidence should not be limited to those situations where the ambiguity or uncertainty
arises from the words.
- The Chamber finds that independent evidence may be used to
"corroborate", support, prove or disprove the authenticity and probative value
of documentary evidence, once that independent evidence has been admitted. This principle
is not limited to the use of oral testimony in supporting documentary evidence: it permits
the use of multiple documents in mutual support (for example the combined use of maps,
photographs and videos), and it also permits the use of documentary evidence in support of
oral testimony.
- The Chamber notes that the use of documents in support of
oral testimony will extend to the use of documents as aides mémoires to refresh
the memory of witnesses. However, where documents appear to be used not simply to refresh
the memory of the witness, but as a crutch without which the testimony of the witness
would fall, the Chamber notes that the credibility of the witness and the probative value
of his or her testimony may be undermined.
- Concerning the question of the assessment of prior
statements, the Chamber notes the following.
- Firstly, it notes that a significant problem arises where
the oral testimony of a witness contradicts, or is inconsistent with, prior statements
made by the witness which have been admitted as documentary evidence into the proceedings.
- Secondly, the Chamber also notes that the probative value
of the respective pieces of evidence will, in part, depend on the conditions under which
the prior statement was provided, as well as on other factors relevant to, or indicia of,
the prior statement's reliability or credibility, or both. Accordingly, the Chamber will
address separately three classes of prior testimony submitted as documentary evidence in
this case:
- witness statements and other non-judicial testimonies;
- testimonies before this Tribunal; and
- statements before other judicial bodies.
- Firstly, regarding witness statements and other
non-judicial testimonies, the Chamber notes that a large number of witnesses who appeared
before the Chamber in this case had previously made statements, which included witness
declarations and, in one case, a radio interview(31).
- The Chamber has evaluated the probative value of such
testimonies in light of the circumstances in which they were made, and in view of other
factors pertaining to the reliability of the testimonies. The circumstances it has taken
into consideration include such matters as: the language in which the testimony was made
or in which the interview was conducted; the access of the Chamber to transcripts of the
testimonies or the interviews, and its corresponding ability to scrutinise the nature of
the questions put to a witness; the accuracy of interpretation and transcription; the time
lapse between the prior testimonies and the testimony at trial; the difficulties of
recollection; the use or non-use of solemn declarations; and the fact of whether or not a
witness had read or reviewed the statement at the time at which it was made(32).
- In light of these factors, it is the Chamber's opinion that
the probative value of such prior witness statements is, generally, lower than the
probative value of positive oral testimony before a Court of law, where such testimony has
been subjected to the test of cross-examination.
- Secondly, regarding testimonies before this Tribunal, in
accordance with this principle of assessing prior statements in the light of the
circumstances in which those statements were provided, the Chamber must confront the
situation, which arose in this case, where the testimony of a witness appears to conflict
with a prior statement made by the same witness before this Tribunal in separate
proceedings.
- The Chamber notes that in such cases, witnesses may have
provided conflicting evidence under solemn declaration. The Chamber will, in accordance
with the general principles of the assessment of evidence discussed above, assess such
evidence on a case-by-case basis. It will address the admissibility of such evidence, and,
in evaluating the probative value of the evidence, will address the explanations given by
the witness for the discrepancies between his or her testimonies, and the materiality of
such apparent discrepancies.
- The Chamber further notes that inconsistency between two
testimonies of the same witness, both given under solemn declaration, affects the
credibility and reliability of the later testimony.
- Where a conflict between testimonies exists, it is not the
task of the Chamber to assess the credibility and reliability of the testimony in the
earlier proceedings (for example the Kayishema and Ruzindana case),
since these issues have been determined previously (and possibly, as in this case, by
another Trial Chamber) in light of all the information available to it.
- Thirdly, the Chamber notes that the issue of the assessment
of the probative value of prior statements made before other judicial bodies arose in this
case in relation to the "Swiss Files". The "Swiss Files" is the name
given in this trial to the transcripts of interviews given by the Accused to a Swiss juge
d'instruction following his arrest in Switzerland on 11 February 1995. The
"Swiss Files" include eight voluntary statements and a number of accompanying
documents, all submitted as evidence by the Prosecution, with the consent of the Defence(33). The truth and probative value of the "Swiss
Files" were not in question, to the extent that the files establish an accurate
account of the interviews conducted by the Swiss authorities. However, both the Prosecutor
and the Defence did, at different points in the Trial, contest the truth of Musema's prior
statements and the probative value of some of the documents, contained in those Files.
- In assessing the probative value of the "Swiss
Files", the Chamber has relied on the general principle discussed above, taking into
account the circumstances and conditions in which the documents were produced.
- The Chamber makes two further observations relevant to the
assessment of the probative value of such evidence.
- Firstly, the Chamber notes that judicial testimonies (and
other testimonies made under oath or solemn declaration) tend, as a general rule, to
demonstrate greater reliability than non-judicial testimonies(34).
- Secondly, the Chamber notes that the probative value of
such evidence must be assessed in the light of the minimum standards expected by the
Tribunal for the production of such evidence. These minimum standards provide a general
yardstick against which the Chamber is able to measure the reliability of such evidence.
However, the standards which comprise this yardstick differ according to the nature of the
interview or investigation.
- Rules 42 and 43 establish the standard expected of an
interview of a suspect by the Prosecutor. These Rules do not, however, specifically
address interviews of the Accused by someone other than the Prosecutor, or interviews
involving witnesses.
- The issue then arises as to what standards constitute the
yardstick against which the probative value of evidence obtained in such interviews may be
assessed. The Chamber finds that the relevant standards are embodied in Rules 39(i),
39(ii), 42, 43 and 95, which should be read together. These Rules provide the minimum
standards constituting the yardstick against which both the admissibility and probative
value of pre-Trial interview testimonies should be measured(35).
2.2.3 False testimony
- On a number of occasions in this case direct, or indirect, implications were made by one
of the Parties that one or more of the witnesses had deliberately or otherwise misled the
Chamber. The Chamber notes that such submissions, if seriously intended as allegations of
false testimony, should be submitted to the Tribunal in proper motion form, under Rule
91(B).
- The Chamber reaffirms its position that false testimony is a deliberate offence, which
presupposes wilful intent on the part of the perpetrator to mislead the Judges and thus to
cause harm(37), and a miscarriage of justice. In
such a motion, the onus is on the party pleading the case of false testimony to prove the
falsehood of the witness' statements and to prove either that these statements were made
with harmful intent or that they were made by a witness who was fully aware both of their
falsehood and of their possible bearing upon the Judge's decision. In order to establish a
strong basis for believing that the witness may have knowingly and wilfully given false
testimony, it is insufficient to raise only doubt as to the credibility of the statements
made by the witness. The Chamber affirms its opinion that, inaccurate statements cannot,
on their own, constitute false testimony; an element of wilful intent to give false
testimony must exist. As the Appeals Chamber has previously confirmed(38),
there is an important distinction between testimony that is incredible and testimony which
constitutes false testimony. The testimony of a witness may, for one reason or another,
lack credibility even if it does not amount to false testimony within the meaning of Rule
91(39).
2.2.4 The impact of trauma on the testimony of witnesses
- Many of the witnesses who testified before the Chamber in this case have seen or have
experienced terrible atrocities. They, their family or their friends have, in many cases,
been the victims of such atrocities. The trauma that may have arisen, and may continue to
arise, from such experiences is a matter of grave concern to the Chamber. The Chamber
notes that recounting and revisiting such painful experiences is likely to be a source of
great pain to the witness, and may also affect her or his ability fully or adequately, to
recount the relevant events in a judicial context. The Chamber has, accordingly,
considered the testimony of those witnesses in this light.
- The Chamber also notes that some of the witnesses who testified before it may, in its
opinion, have suffered, or may continue to suffer stress-related disorders. The Chamber
has assessed the testimonies of such witnesses, in light of this possibility, and has
taken into account their personal background and the nature of the atrocities to which
they may have been subjected(40).
2.2.5 Interpretation
- The Chamber notes the difficulties presented by the consecutive translation of three
languages (Kinyarwanda, French and English) in assessing evidence. In particular, it notes
the significant syntactical and grammatical differences between the three languages. These
difficulties have been taken into consideration by the Chamber in its assessment of all
evidence presented to it, including evidence for which the source was not available for
examination by the Chamber.
2.2.6 Cultural factors affecting the evidence of witnesses
- The testimonies of many of the witnesses in this case were affected by cultural factors.
The Chamber has not drawn any adverse conclusions regarding the credibility of witnesses
when cultural constraints appeared to induce them to answer indirectly certain questions
regarded as delicate. Further, the Chamber recalls that the assessment of all evidence
tendered to it is conducted in accordance with the Rules, in particular Rule 89.
Accordingly, as the Chamber noted earlier, evidence which appears to be
"second-hand" is not, in and of itself, inadmissible; rather it is assessed,
like all other evidence, on the basis of its credibility and relevance. While there
appears, as the Defence argued, to be in Rwandan culture a "tradition that the
perceived knowledge of one becomes the knowledge of all"(41),
the Chamber notes that, as in other cultures, Rwandan individuals are clearly able to
distinguish between what they have heard and what they have seen(42).
The Chamber made a consistent effort to ensure that this distinction was drawn throughout
the trial, and has taken such matters into careful consideration in assessing the evidence
before it.
- Finally, the Chamber notes the impact on the testimony of witnesses of cultural factors
relating to the use of documents and the witnesses' unfamiliarity with spatio-temporal
identification mechanisms and techniques. Certain witnesses had difficulty in being
specific as to dates, times, distances and locations, and appeared unfamiliar with the use
of maps, films, photographs and other graphic representations. The Chamber has carefully
considered witnesses' responses in light of this understanding. It has not drawn any
adverse conclusions regarding the credibility of a witness based only on a witness'
reticence or circuitousness in responding to questions of such a nature; however, it has
taken the accuracy and other relevant elements of such responses into account when
assessing such evidence.
- The Chamber further notes that sensitivity has, and should, be shown by the Parties in
addition to the Bench, in relation to these cultural factors. This sensitivity should
extend not only to courtroom proceedings but also to the gathering and preparation of
evidence. The Chamber notes that it is not in the interests of either Party, let alone the
Tribunal, to require witnesses to utilize identification mechanisms which are not familiar
to them when other alternatives are readily available to the Parties. In particular, the
Chamber draws attention to the use of aerial photography by the Prosecutor(43).
2.3 The Defence of alibi
- Pursuant to Rule 67 (A) of the Rules, ("Reciprocal Disclosure of Evidence"),
the Prosecutor shall, as early as reasonably practicable and in any event prior to the
commencement of the trial, notify the Defence of the names of the witnesses that he
intends to call to establish the guilt of the accused, and in rebuttal of any defence plea
of which the Prosecutor has received notice. The Defence shall notify the Prosecutor of
its intent to enter the defence of alibi, in which case the notification shall specify the
place or places at which the accused claims to have been present at the time of the
alleged crime and the names and addresses of witnesses and any other evidence upon which
the accused intends to rely to establish the alibi.
- Pursuant to Rule 67 (B), failure of the Defence to provide notice under Rule 67(A) shall
not limit the right of the accused to rely on the defence of alibi. Although this Rule
prevails, the Chamber notes that failure to provide notice may be relevant to the judicial
consideration of the merits of the defence. In the Kayishema and Ruzindana Judgement,
Trial Chamber II noted:
"Where good cause is not shown, for the application of Rule 67(B), the Trial
Chamber is entitled to take into account this failure when weighing the credibility of the
defence of alibi and/or any special defence presented."(44)
- In raising the defence of alibi, the Accused not only denies that he committed the
crimes for which he is charged but also asserts that he was elsewhere than at the scene of
these crimes when they were committed. The onus is on the Prosecution to prove beyond a
reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence
is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused
was present and committed the crimes for which he is charged and thereby discredit the
alibi defence. The alibi defence does not carry a separate burden of proof. If the defence
is reasonably possibly true, it must be successful.
1. See
"Application by the Prosecutor for a formal request for deferral by Switzerland
concerning Musema Alfred", Case No. ICTR-96-5-D, (4 March 1996).
2. See "Decision on the formal request for deferral
presented by the Prosecutor", Case No. ICTR-96-5-D, (12 March 1996).
3. See "Decision on the review of the
Indictment", Case No. ICTR-96-13-I, (15 July 1996).
4. See "Warrant of Arrest, Order for Surrender",
Case No. ICTR-96-13-I.
5. See "Warning
and notice to Counsel in terms of Rule 46(A) of the Rules of Procedure and Evidence",
Case No. ICTR-96-13-I, (31 October 1997).
6. See
"Decision to withdraw counsel and to allow the Prosecutor to redact identifying
information of her witnesses",Case No. ICTR-96-13-I, (18 November 1997).
7. See infra.
8. See "Prosecutor's request for leave to file an
amended indictment"(Case No. ICTR-96-13-I), dated 30 October 1998; "Brief in
support of Prosecutor's request for leave to file an amended indictment", Case No.
ICTR-96-13-I, (30 October 1998); "Amended Indictment", Case No. ICTR-96-13-I,
(filed 3 November 1998).
9. See "Decision on the Prosecutor's request for leave
to amend the Indictment"(Case No. ICTR-96-13-I), dated 18 November 1998.
10. See "Decision on the Prosecutor's Motion for
Witness Protection",Case No. ICTR-96-13-T, (20 November 1998).
11. See "Decision on an Application
by African Concern for Leave to Appear as an Amicus Curiae", Case No. ICTR-96-13-T,
(17 March 1999).
12. See "Decision on the Prosecutor's
Request for Leave to Amend the Indictment", Case No. ICTR-96-13-T, (6 May 1999).
13. See "Decision on the Prosecutor's
Request for Leave to Call Six New Witnesses", Case No. ICTR-96-13-T, (20 April 1999),
and "Decision on the Motion of the Defence for Two Additional Witnesses and for
Witness Protection", Case No. ICTR-96-13-T, (6 May 1999).
14. See "Order for Temporary Transfer
of Three Detained Witnesses (Q, L, AB) Pursuant to Rule 90bis of the Rules of
Procedure and Evidence", Case No. ICTR-96-13-T, (19 April 1999).
15. The
Prosecutor v. Dusko Tadi. See "Decision on Defense Motion on
Hearsay", Case No. IT-94-1-T (5 August 1996).
16. The Prosecutor v. Zejnil Delali, Zdravko Muci a/k/a
"Pavo", Hazim Deli and Esad Lando a/k/a "Zenga". See "Decision
on the Prosecution's Oral Requests for the Admission of Exhibit 155 into Evidence and for
an Order to Compel the Accused, Zdravko Muci, to Provide a Handwriting Sample", Case
No. IT-96-21-T (21 January 1998) (RP D5395-D5419).
17. Id. para. 32.
18. Akayesu Judgement, para. 134.
19. Rutaganda Judgement, para. 17.
20. The International Military Tribunal for the Far
East (29 April 1946 - 12 November 1948). See Röling, B.V.A and Rüter, C.F.
(eds), The Tokyo Judgment, vol. II (Amsterdam, APA-University Press Amsterdam BV,
1977), p. 630.
21. Although the provision of copies of documentary
evidence where originals appear to be available may constitute an exception to this
general rule. See further below.
22. Notwithstanding this observation, the Chamber
recalls the duties on both parties to disclose evidence of which they have knowledge,
subject to Rules 66, 67 and 68.
23. As it was stated
by the ICTY in Decision on the Motion of the Prosecution for the Admissibility of Evidence
(21 January 1998) (RP D5423-D5440, RP D5431):
"the mere admission of a document into
evidence does not in and of itself signify that the statements contained therein will
necessarily be deemed to be an accurate portrayal of the facts."
24. See "Decision on Zdravko Muci's Motion for the
Exclusion of Evidence", IT-96-21-T (2 September 1997) (RP D5082-D5105)),
where the ICTY found that the Prosecution bore a burden to prove beyond reasonable doubt
that the evidence they sought to admit was obtained voluntarily and not in any way that
contradicted the right of the Accused to a fair trial.
25. See e.g. the discussion of Judge Pal in the Decision
of The International Military Tribunal for the Far East, fn. 23, supra, pp. 638,
641-5, note 7.
26. See "Decision on the Prosecution's Oral Requests
for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused,
Zdravko Muci, to Provide a Handwriting Sample", IT-96-21-T (21 January 1998) (RP
D5395-D5419). It is to be expected that a Chamber would be unable to make any other order
which involved a similar self-condemnation by the accused, such as ordering the accused to
speak certain words in the presence of a witness for the purposes of aural identification(27)
27. Ibid.
28. The International
Military Tribunal for the Far East, fn. 23, supra.
29. Id., p. 640.
30. Id., p. 653.
31. Defence Closing Argument (28 June 1999).
32. See further Akayesu Judgement, para. 134; Rutaganda
Judgement, para. 19.
33. Prosecution Closing Argument (25 June 1999).
34. See R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257.
35. The Chamber is of a similar mind to that of the Trial Chamber
of the ICTY in "Decision on Zdravko Muci's Motion for the Exclusion of
Evidence", IT-96-21-T (RP D5082-D5105) where it stated:
"43 ....Rule 42 embodies the essential
provisions of the right to a fair hearing as enshrined in Article 14(3) of the
International Covenant on Civil and Political Rights and Article 6(3)(c) of the European
Convention on Human Rights. These are the internationally accepted basic and fundamental
rights accorded to the individual to enable the enjoyment of a right to a fair hearing
during trial. It seems to us extremely difficult for a statement taken in violation of
Rule 42 to fall within Rule 95 which protects the integrity of the proceedings by the
non-admissibility of evidence obtained by methods which cast substantial doubts on its
reliability.
-
The Trial Chamber is of the opinion that the surest way to protect the integrity of the
proceedings is to read both Rules 42 and 95 together. We read Rule 95 as a summary of the
provisions in the Rules, which enable the exclusion of evidence antithetical to and
damaging, and thereby protecting the integrity of the proceedings. We regard it as a
residual exclusionary provision."(36)
36. Ibid, paras 43, 44.
37. Rutaganda Judgement, para. 20.
38. See The Prosecutor v. Georges Anderson
Nderubumwe Rutaganda, ICTR-96-3-T, "Decision on Appeals Against the Decisions by
Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the
Matter of False Testimony by witnesses 'E' and 'CC'" (8 June 1998) para. 28.
39. Rutaganda Judgement, para. 20.
40. Akayesu Judgement, paras 142-156.
41. Defence Closing
Argument (28 June 1999).
42. Akayesu Judgement, para. 155.
43. See Prosecution
exhibits P 20.1 - P 20.10.
44. See Kayishema
and Ruzindana Judgement